EXHIBIT 4
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BCAP TRUST LLC 2008-IND1
MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2008-IND1
POOLING AND SERVICING AGREEMENT
among
BCAP LLC,
Depositor,
▇▇▇▇▇ FARGO BANK, N.A.,
Master Servicer and Securities Administrator,
DEUTSCHE BANK NATIONAL TRUST COMPANY,
Custodian
and
HSBC BANK USA, NATIONAL ASSOCIATION,
Trustee
Dated January 1, 2008
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Definitions..................................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans.................................
Section 2.02 Acceptance by the Custodian of the Mortgage Loans............
Section 2.03 Execution and Delivery of Certificates.......................
Section 2.04 REMIC Matters................................................
Section 2.05 Representations and Warranties of the Depositor..............
Section 2.06 Representations and Warranties of the Trustee................
Section 2.07 Representations and Warranties of the Custodian..............
ARTICLE III
TRUST ACCOUNTS
Section 3.01 Distribution Account and Carryover Shortfall
Reserve Fund Account.......................................
Section 3.02 Investment of Funds in the Distribution Account..............
ARTICLE IV
DISTRIBUTIONS
Section 4.01 Priorities of Distribution...................................
Section 4.02 Subordination................................................
Section 4.03 Allocation of Realized Losses................................
Section 4.04 Carryover Shortfall Reserve Fund.............................
Section 4.05 Allocation of Net Deferred Interest..........................
Section 4.06 Monthly Statements to Certificateholders.....................
Section 4.07 Certain Matters Relating to the Determination of LIBOR.......
Section 4.08 Certain Matters Relating to the Determination of MTA.........
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.............................................
Section 5.02 Certificate Register; Registration of Transfer and Exchange
of Certificates............................................
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates............
Section 5.04 Persons Deemed Owners........................................
Section 5.05 Access to List of Certificateholders' Names and Addresses....
Section 5.06 Maintenance of Office or Agency..............................
ARTICLE VI
THE DEPOSITOR
Section 6.01 Respective Liabilities of the Depositor......................
Section 6.02 Merger or Consolidation of the Depositor.....................
Section 6.03 Limitation on Liability of the Depositor and Others..........
Section 6.04 Option to Purchase Defaulted Mortgage Loans..................
ARTICLE VII
SERVICER DEFAULT
Section 7.01 Events of Default............................................
Section 7.02 Master Servicer to Act; Appointment of Successor.............
Section 7.03 Master Servicer to Act as Servicer...........................
Section 7.04 Notification to Certificateholders...........................
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE CUSTODIAN, VARIOUS
TAX MATTERS, SERVICING REPORTS AND
PERIODIC FILINGS
Section 8.01 Duties of the Trustee........................................
Section 8.02 [Reserved]...................................................
Section 8.03 Certain Matters Affecting the Custodian and the Trustee......
Section 8.04 Trustee and Custodian Not Liable for Certificates or
Mortgage Loans.............................................
Section 8.05 Trustee May Own Certificates.................................
Section 8.06 Trustee's and Custodian's Fees and Expenses..................
Section 8.07 Eligibility Requirements for the Trustee.....................
Section 8.08 Resignation and Removal of the Trustee.......................
Section 8.09 Successor Trustee............................................
Section 8.10 Merger or Consolidation of the Trustee.......................
Section 8.11 Appointment of Co-Trustee or Separate Trustee................
Section 8.12 Tax Matters..................................................
Section 8.13 Annual Statement as to Compliance............................
Section 8.14 Annual Reports on Assessment of Compliance with
Servicing Criteria; Annual Independent Public Accountants'
Attestation Report.........................................
Section 8.15 Periodic Filings.............................................
Section 8.16 [Reserved]...................................................
Section 8.17 Monthly Data File............................................
Section 8.18 Custodial Responsibilities...................................
Section 8.19 Limitations on Custodial Responsibilities....................
ARTICLE IX
ADMINISTRATION OF THE
MORTGAGE LOANS BY THE MASTER SERVICER
Section 9.01 Duties of the Master Servicer; Enforcement of
Servicer's Obligations.....................................
Section 9.02 Maintenance of Fidelity Bond and Errors and Omissions
Insurance..................................................
Section 9.03 Representations and Warranties of the Master Servicer........
Section 9.04 Master Servicer Events of Default............................
Section 9.05 Waiver of Default............................................
Section 9.06 Successor to the Master Servicer.............................
Section 9.07 Compensation of the Master Servicer..........................
Section 9.08 Merger or Consolidation......................................
Section 9.09 Resignation of the Master Servicer...........................
Section 9.10 Assignment or Delegation of Duties by the Master Servicer....
Section 9.11 Limitation on Liability of the Master Servicer...............
Section 9.12 Indemnification; Third Party Claims..........................
ARTICLE X
CONCERNING THE SECURITIES ADMINISTRATOR
Section 10.01 Duties of Securities Administrator...........................
Section 10.02 Certain Matters Affecting the Securities Administrator.......
Section 10.03 Securities Administrator Not Liable for Certificates
or Mortgage Loans..........................................
Section 10.04 Securities Administrator May Own Certificates................
Section 10.05 Securities Administrator's Fees and Expenses.................
Section 10.06 Eligibility Requirements for Securities Administrator........
Section 10.07 Resignation and Removal of Securities Administrator..........
Section 10.08 Successor Securities Administrator...........................
Section 10.09 Merger or Consolidation of Securities Administrator..........
Section 10.10 Assignment or Delegation of Duties by the Securities
Administrator..............................................
ARTICLE XI
TERMINATION
Section 11.01 Termination upon Liquidation or Purchase of the
Mortgage Loans...............................................
Section 11.02 Final Distribution on the Certificates.......................
Section 11.03 Additional Termination Requirements..........................
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment....................................................
Section 12.02 Recordation of Agreement; Counterparts.......................
Section 12.03 Governing Law................................................
Section 12.04 Intention of Parties.........................................
Section 12.05 Notices......................................................
Section 12.06 Severability of Provisions...................................
Section 12.07 Limitation on Rights of Certificateholders...................
Section 12.08 Certificates Nonassessable and Fully Paid....................
Section 12.09 Waiver of Jury Trial.........................................
Section 12.10 Regulation AB Compliance; Intent of the Parties;
Reasonableness.............................................
Section 12.11 Third Party Rights...........................................
SCHEDULES
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Schedule I Mortgage Loan Schedule
EXHIBITS
--------
EXHIBIT A Form of Class A, Class A-X and Class B Certificates
EXHIBIT B Form of Class A-R Certificates
EXHIBIT C Form of Class P and Class L Certificates
EXHIBIT D Form of Request for Release
EXHIBIT E Form of Initial Certification of Custodian
EXHIBIT F Form of Document Certification and Exception Report of
Custodian
EXHIBIT G Form of Residual Transfer Affidavit
EXHIBIT H Form of Transferor Certificate
EXHIBIT I Form of Rule 144A Letter
EXHIBIT J Form of Certification to be Provided with Form 10-K
EXHIBIT K Form of Securities Administrator Certification to be
Provided to Master Servicer
EXHIBIT L IndyMac Assignment Agreement
EXHIBIT M-1 IndyMac Purchase Agreement
EXHIBIT M-2 IndyMac Servicing Agreement
EXHIBIT N Reserved
EXHIBIT O Servicing Criteria
EXHIBIT P Additional Form 10-D Disclosure
EXHIBIT Q Additional Form 10-K Disclosure
EXHIBIT R Form 8-K Disclosure Information
EXHIBIT S Additional Disclosure Notification
EXHIBIT T Representation Letter
EXHIBIT U Loan Level Data Report
THIS POOLING AND SERVICING AGREEMENT, dated as of January 1, 2008
(this "Agreement"), is hereby executed by and between BCAP LLC, a Delaware
limited liability company (the "Depositor"), ▇▇▇▇▇ FARGO BANK, N.A., as
securities administrator (in such capacity, the "Securities Administrator") and
as master servicer (in such capacity, the "Master Servicer"), DEUTSCHE BANK
NATIONAL TRUST COMPANY, as custodian (the "Custodian") and HSBC BANK USA,
NATIONAL ASSOCIATION, as trustee (the "Trustee").
W I T N E S S E T H:
- - - - - - - - - -
In consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
PRELIMINARY STATEMENT
The Securities Administrator on behalf of the Trustee shall elect
that two segregated asset pools within the Trust Fund (exclusive of (i) the
Carryover Shortfall Reserve Fund Account, (ii) the Prepayment Premiums, (iii)
late payment fees, and (iv) the right of the Principal Certificates to receive
Carryover Shortfall Amounts) be treated for federal income tax purposes as
comprising two REMICs (each, a "Trust REMIC" or, in the alternative, the Lower
Tier REMIC and the Upper Tier REMIC, respectively). The Startup Day for each
Trust REMIC is the Closing Date. The latest possible maturity date for each
Lower Tier REMIC Regular Interest and each Upper Tier REMIC Regular Interest is
the latest date referenced in Section 2.04.
Each Class of Principal Certificates (other than the right of each
Class of Principal Certificates to receive Carryover Shortfall Amounts) and the
Class A-X Certificates (subject to the obligation to pay Carryover Shortfall
Amounts), represents ownership of a regular interest in the Upper Tier REMIC for
purposes of the REMIC Provisions. The Class A-R Certificates represent ownership
of the sole Class of residual interest in each of the Lower Tier REMIC and the
Upper Tier REMIC.
For federal income tax purposes, each Class of Principal
Certificates, the Class X Certificates, the Class P Certificates and the Class L
Certificates represent beneficial ownership of portions of the Trust Fund, which
shall be treated as a grantor trust as more fully described in this Preliminary
Statement.
Lower Tier REMIC
The Lower Tier REMIC will hold as assets the Mortgage Loans. The
Lower Tier REMIC shall issue the following interests, and each such interest,
other than the Class LT-A-R Interest, is hereby designated as a regular interest
in the Lower Tier REMIC (the "Lower Tier REMIC Regular Interests"). The Class
LT-A-R Interest is hereby designated as the sole Class of residual interest in
the Lower Tier REMIC and shall be represented by the Class A-R Certificates.
Lower Tier Corresponding
REMIC Interest Initial Lower Tier Principal Upper Tier REMIC
Class Designation Rate Amount (4) Regular Interest
----------------- -------------- --------------------------------- ----------------
Class-LT-A-1 (1) 1% Corresponding Upper Tier REMIC A-1
Interest initial Class
Certificate Balance
Class-LT-A-2 (1) 1% Corresponding Upper Tier REMIC A-2
Interest initial Class
Certificate Balance
Class-LT-A-3 (1) 1% Corresponding Upper Tier REMIC A-3
Interest initial Class
Certificate Balance
Class-LT-B-1 (1) 1% Corresponding Upper Tier REMIC B-1
Interest initial Class
Certificate Balance
Class-LT-B-2 (1) 1% Corresponding Upper Tier REMIC B-2
Interest initial Class
Certificate Balance
Class-LT-B-3 (1) 1% Corresponding Upper Tier REMIC B-3
Interest initial Class
Certificate Balance
Class-LT-B-4 (1) 1% Corresponding Upper Tier REMIC B-4
Interest initial Class
Certificate Balance
Class-LT-B-5 (1) 1% Corresponding Upper Tier REMIC B-5
Interest initial Class
Certificate Balance
Class-LT-B-6 (1) 1% Corresponding Upper Tier REMIC B-6
Interest initial Class
Certificate Balance
Class-LT-UTAR (1) 1% Corresponding Upper Tier REMIC UT-AR
Interest initial Class
Certificate Balance
Class-LT-Accrual-1 (1) (2) N/A
Class-LT-Accrual-2 (1) (2) N/A
Class-LT-A-R (3) (3) N/A
_________________________
(1) The interest rate with respect to any Distribution Date for these interests
is a per annum variable rate equal to the Lower Tier REMIC Net WAC Rate.
(2) The Class LT Accrual-1 Interest has an initial Lower-Tier Principal Amount
equal to 99% of the aggregate of the initial Class Certificate Balance of
the Class A Certificates (other than the Class A-X Certificates). The Class
LT Accrual-2 Interest has an initial Lower-Tier Principal Amount equal to
99% of the aggregate of the initial Class Certificate Balance of the
Subordinate Certificates. Allocations of principal, Realized Losses and Net
Deferred Interest will be allocated as described below.
(3) The Class LT-AR Interest is the sole Class of residual interest in the Lower
Tier REMIC and it does not have a principal amount or an interest rate.
(4) For all Distribution Dates, the Lower Tier Principal Amount of these Lower
Tier REMIC Regular Interests shall be expressed to eight decimal places.
The Class LT-A-1, Class LT-A-2, Class LT-A-3, Class LT-B-1, Class
LT-B-2, Class LT-B-3, Class LT-B-4, Class LT-B-5, Class LT-B-6 and Class LT-UTAR
Interests are hereby designated the LT Accretion Directed Classes (the "LT
Accretion Directed Classes").
On each Distribution Date, the Available Funds payable with respect
to the Mortgage Loans for such Distribution Date shall be distributed with
respect to the Lower Tier REMIC Regular Interests in the following manner:
(1) Interest. Interest at the Lower Tier REMIC Interest Rate
described above is to be distributed to or, alternatively, accrued and deferred
on (i.e., with respect to Net Deferred Interest), each Lower Tier REMIC Regular
Interest such that, (A) with respect to each LT Accretion Directed Class, the
relative proportion between the Lower Tier Principal Amount of each LT Accretion
Directed Class and the Upper Tier Principal Amount of the Corresponding Upper
Tier REMIC Interest (that is, 1%) is maintained, (B) with respect to the Class
LT Accrual-1 Interest, the Lower Tier Principal Amount of such Class is
increased by the remainder of Net Deferred Interest allocated to the Class A
Certificates (other than the Class A-X Certificates) and the Class A-X-PO-1
Component for the related Distribution Date that is not allocated in (A) above
and (C) with respect to the Class LT Accrual-2 Interest, the Lower Tier
Principal Amount of such Class is increased by the remainder of Net Deferred
Interest allocated to the Subordinate Certificates and the Class A-X-PO-2
Component for the related Distribution Date that is not allocated in (A) above.
(2) Principal. The Principal Payment Amount, Realized Losses and
Subsequent Recoveries will be allocated (a) to each LT-Accretion Directed Class
so as to maintain the proportion of its Lower Tier Principal Amount relative to
the Upper Tier Principal Amount of its Corresponding Upper Tier REMIC Interest
(that is, 1%). All remaining Principal Payment Amounts, Realized Losses and
Subsequent Recoveries will be allocated (b) to (i) the Class LT Accrual-1
Interest so as to cause the Lower Tier Principal Amount of the Class LT
Accrual-1 Interest to equal 99% of the aggregate Class Certificate Balance of
the Class A Certificates (other than the Class A-X Certificates) and the Class
A-X-PO-1 Component and (ii) the Class LT Accrual-2 Interest so as to cause the
Lower Tier Principal Amount of the Class LT Accrual-2 Interest to equal 99% of
the aggregate Class Certificate Balance of the Subordinate Certificates and the
Class A-X-PO-2 Component.
Any amounts remaining after distributing principal, interest, and
Subsequent Recoveries to the Lower Tier REMIC Regular Interests shall be
distributed to the Holders of the Class A-R Certificates in respect of the Class
LT-A-R Interest.
Upper Tier REMIC
The Upper Tier REMIC shall issue the following Classes of Upper Tier
REMIC Regular Interests and each such interest, other than the Class UT-A-R
Interest, is hereby designated as a regular interest in the Upper Tier REMIC.
The Class UT-A-R Interest is hereby designated as the sole Class of residual
interests in the Upper Tier REMIC and shall be represented by the Class A-R
Certificates.
Corresponding
Upper Tier REMIC Upper Tier Class of
Class Designation Interest Rate Principal Amount Certificates
----------------- ---------------- ---------------- ------------
Class A-1 (1) $189,416,000 Class A-1
Class A-2 (1) $68,245,000 Class A-2
Class A-3 (1) $68,245,000 Class A-3
Class B-1 (1) $17,270,000 Class B-1
Class B-2 (1) $8,357,000 Class B-2
Class B-3 (1) $5,571,000 Class B-3
Class B-4 (1) $5,385,000 Class B-4
Class B-5 (1) $4,457,000 Class B-5
Class B-6 (1) $4,456,942.26 Class B-6
Class A-X (2) (3) Class A-X
Class UT-A-R (1) $100 Class A-R
------------
(1) For any Distribution Date (and the related Interest Accrual Period), this
interest shall bear interest at the Pass-Through Rate for the Corresponding
Class of Certificates.
(2) Interest will accrue with respect to the Class A-X Certificates for the
Interest Accrual Period related to each Distribution Date in an amount equal
to the sum of the interest accrued on the Class A-X IO-1 and Class A-X IO-2
Components at their respective Pass-Through Rates for that Interest Accrual
Period. For federal income tax purposes, for the Interest Accrual Period for
any Distribution Date, the Class A-X Interest is entitled to the sum of:
A. The interest on a notional amount equal to the Lower Tier Principal
Amount of the Class LT-A-1, Class LT-A-2, Class LT-A-3, Class LT-UTAR and
Class LT-Accrual-1 Interests at a rate equal to the excess, if any, of (a)
the WAC Cap for the Class A Certificates over (b) the product of (i) 100 and
(ii) the weighted average Lower Tier REMIC Interest Rates of the Class
LT-A-1, Class LT-A-2, Class LT-A-3, Class LT-UTAR and Class LT Accrual-1
Interests, with each such Lower Tier REMIC Regular Interest (other than the
Class LT Accrual-1 Interest) subject to a cap equal to the Pass-Through Rate
of the Corresponding Class of Certificates and the Class LT Accrual-1
Interest subject to a cap of 0.00%. The amounts so calculated shall be a
rate sufficient to entitle the Class A-X-IO-1 Component to all interest
accrued on the Class LT-A-1, Class LT-A-2, Class LT-A-3, Class LT-UTAR and
Class LT Accrual-1 Interests less the interest accrued on the Class A
Certificates (other than the Class A-X Certificates); and
B. The interest on a notional amount equal to the Lower Tier Principal
Amount of the Class LT-B-1, Class LT-B-2, Class LT-B-3, Class LT-B-4, Class
LT-B-5, Class LT-B-6 and Class LT Accrual-2 Interests at a rate equal to the
excess, if any, of (a) the WAC Cap for the Subordinate Certificates over (b)
the product of (i) 100 and (ii) the weighted average Lower Tier REMIC
Interest Rates of the Class LT-B-1, Class LT-B-2, Class LT-B-3, Class
LT-B-4, Class LT-B-5, Class LT-B-6 and Class LT Accrual-2 Interests, with
each such Lower Tier REMIC Regular Interest (other than the Class LT
Accrual-2 Interest) subject to a cap equal to the Pass-Through Rate of the
Corresponding Class of Certificates and the LT-Accrual-2 Interest subject to
a cap of 0.00%. The amounts so calculated shall be a rate sufficient to
entitle the Class A-X-IO2 Component to all interest accrued on the Class
LT-B-1, Class LT-B-2, Class LT-B-3, Class LT-B-4, Class LT-B-5, Class LT-B-6
and Class LT Accrual-2 Interests less the interest accrued on the
Subordinate Certificates.
(3) For federal income tax purposes, the Class A-X Interest will not have an
Upper Tier Principal Amount and will be entitled to receive and accrue
amounts as described in the previous footnote.
Principal Payment Amounts, Realized Losses and Subsequent Recoveries
will be allocated such that the Upper Tier Principal Amount of each Upper Tier
REMIC Regular Interest shall at all times equal the Class Certificate Balance of
the Corresponding Class of Certificates. Any amounts remaining after
distributing principal, interest, and Subsequent Recoveries to the Upper Tier
REMIC Regular Interests shall be distributed to the Holders of the Class A-R
Certificates in respect of the Class UT-A-R Interest. The Class UT-A-R
Certificates shall receive interest and principal at the times and in the
amounts received by the Class A-R Certificates.
Certificates
Class Certificate
Class Balance or
Class Designation Pass-Through Rate Notional Amount
----------------- ----------------- -----------------
Class A-1(5) (1) $189,416,000
Class A-2(5) (2) $68,245,000
Class A-3(5) (2) $68,245,000
Class B-1(5) (2) $17,270,000
Class B-2(5) (2) $8,357,000
Class B-3(5) (2) $5,571,000
Class B-4(5) (2) $5,385,000
Class B-5(5) (2) $4,457,000
Class B-6(5) (2) $4,456,942.26
Class A-X(4) (3)(4) $371,403,042.26
Class A-R (6) $100
Class P (7) (7)
Class L (8) (8)
----------
(1) The Class A-1 Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (i) LIBOR plus the
applicable Pass-Through Margin and (ii) the WAC Cap.
(2) The Class A-2, Class A-3, Class B-1, Class B-2, Class B-3, Class B-4, Class
B-5 and Class B-6 Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the lesser of (i) MTA plus the
applicable Pass-Through Margin and (ii) the WAC Cap.
(3) The Class A-X Certificates will be entitled to receive on each Distribution
Date the sum of the interest accrued on its IO Components (based upon the
Component Notional Amount of each IO Component) during the related Interest
Accrual Period at their respective Pass-Through Margins for that
Distribution Date, less any amounts that are used to pay Carryover Shortfall
Amounts in respect of any other Classes of Certificates. The PO Components
of the Class A-X Certificates have a pass-through rate of 0.000% per annum.
The Pass-Through Rate for the Class A-X-IO-1 Component for the Interest
Accrual Period for any Distribution Date equals the excess, if any, of (1)
the WAC Cap for that Distribution Date (expressed as a rate calculated on
the basis of a 360-day year comprised of twelve 30-day months) over (2) the
weighted average of the Pass-Through Rates of the Class A Certificates
(other than the Class A-X Certificates) and the Class A-X-PO-1 Component for
that Interest Accrual Period (weighted on the basis of their respective
Class Certificate Balances or Component Principal Balance, as applicable,
and each expressed as a rate calculated on the basis of a 360-day year
comprised of twelve 30-day months).
The Pass-Through Rate for the Class A-X-IO-2 Component for the Interest
Accrual Period for any Distribution Date will generally equal the excess, if
any, of (1) the WAC Cap applicable to the Subordinate Certificates for that
Distribution Date over (2) the weighted average of the Pass-Through Rates of
the Subordinate Certificates and the Class A-X-PO-2 Component for that
Interest Accrual Period (weighted on the basis of their respective Class
Certificate Balances or Component Principal Balance, as applicable).
(4) The Class A-X Certificates will represent beneficial ownership of the Class
A-X Interest, subject to the obligation to pay any Carryover Shortfall
Amounts to the Principal Certificates. For federal income tax purposes, the
Securities Administrator will treat a Class A-X Certificateholder's
obligation to make payments to the Principal Certificates of Carryover
Shortfall Amounts from the Carryover Shortfall Reserve Fund Account as
payments under a notional principal contract. Such rights of the
Certificateholders shall be treated as held in a portion of the Trust Fund
that is treated as a grantor trust under subpart E, Part I of subchapter J
of the Code.
(5) Each of the Certificates will represent not only ownership of the
Corresponding Class of Upper Tier REMIC Regular Interest but also the right
to receive payments from the Carryover Shortfall Reserve Fund Account in
respect of any Carryover Shortfall Amounts. For federal income tax purposes,
the Securities Administrator will treat a Principal Certificateholder's
right to receive payments from the Carryover Shortfall Reserve Fund Account
as payments received pursuant to a notional principal contract between the
Class A-X Certificateholders and each Class of Principal Certificates.
(6) The Pass-Through Rate for the Class A-R Certificates will be a per annum
rate equal to the related WAC Cap. The Class A-R Certificates represent the
residual interest in each Trust REMIC.
(7) The Class P Certificates will be entitled to receive on each Distribution
Date the Prepayment Premiums collected on the Mortgage Loans during the
related Due Period. The Class P Certificates will not have a Class
Certificate Balance and will not be entitled to distributions in respect of
principal or interest.
(8) The Class L Certificates will be entitled to receive on each Distribution
Date the late payment fees collected on the Mortgage Loans during the
related Due Period. The Class L Certificates will not have a Class
Certificate Balance and will not be entitled to distributions in respect of
principal or interest.
The minimum denomination for each Class of the Offered Certificates
will be $25,000 initial Class Certificate Balance, with integral multiples of $1
in excess thereof except that one Certificate in each Class may be issued in a
different amount. The minimum denomination for the Class A-R Certificates will
be a 100% Percentage Interest in such Class and the Class P and Class L
Certificates will be a 1% Percentage Interest in such Class.
Set forth below are designations of Classes of Certificates to the categories
used herein:
Book-Entry Certificates All Classes of Certificates other than the
Physical Certificates.
Certificates The Class A, Class B, Class P and Class L
Certificates.
Class A Certificates The Class A-1, Class A-2, Class A-3, Class A-R
and Class A-X Certificates.
Class B Certificates The Class B-1, Class B-2, Class B-3, Class
B-4, Class B-5 and Class B-6 Certificates.
ERISA-Restricted Certificates The Physical Certificates and any
Certificate with a rating below the lowest
applicable permitted rating under the
Underwriters' Exemption.
LIBOR Certificates The Class A-1 Certificates.
MTA Certificates The Class A-2, Class A-3, Class B-1, Class
B-2, Class B-3, Class B-4, Class B-5 and Class
B-6 Certificates.
Offered Certificates The Class A, Class B, Class P and Class L
Certificates.
Physical Certificates The Class B-4, Class B-5, Class B-6, Class
A-R, Class P and Class L Certificates.
Principal Certificates The Regular Certificates other than the Class
A-X Certificates.
Private Certificates The Class B-4, Class B-5, Class B-6, Class P
and Class L Certificates.
Rating Agencies S&P and Fitch.
Regular Certificates All Classes of Certificates other than the
Class A-R, Class P and Class L Certificates.
Residual Certificates The Class A-R Certificates.
Senior Certificates The Class A Certificates.
Subordinate Certificates The Class B Certificates.
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Capitalized terms used herein but not
defined herein shall have the meanings given them in the IndyMac Agreements.
Whenever used in this Agreement, the following words and phrases, unless the
context otherwise requires, shall have the following meanings:
Account: Any of the Distribution Account, the Carryover Shortfall
Reserve Fund Account, the Investment Account or the Collection Account shall be
an Eligible Account.
Accepted Servicing Practices: With respect to any Mortgage Loan,
those mortgage servicing practices of prudent mortgage lending institutions
which service mortgage loans of the same type as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located.
Accrued Certificate Interest: With respect to any Distribution Date
for each Class of Certificates and the IO Components, the sum of (1) interest
accrued during the related Interest Accrual Period at the applicable
Pass-Through Rate on the related Class Certificate Balance or Component Notional
Amount, as applicable, immediately prior to such Distribution Date, as reduced
by (a) such Class' or IO Component's share of interest shortfalls for such
Distribution Date allocated to such Class or IO Component pursuant to Section
4.02, and (b) the amount of any Net Deferred Interest allocated to such Class
pursuant to Section 4.05, plus (2) the portion of any Accrued Certificate
Interest referred to in clause (1) above for that Class remaining undistributed
from previous Distribution Dates.
Additional Disclosure Notification: As defined in Section 8.15(b).
Additional Form 10-D Disclosure: As defined in Section 8.15(b).
Additional Form 10-K Disclosure: As defined in Section 8.15(c).
Adjustment Amount: With respect to the related Special Hazard Loss
Coverage Amount and, with respect to each anniversary of January 1, 2008, the
amount, if any, by which the Special Hazard Loss Coverage Amount (without giving
effect to the deduction of the Adjustment Amount for such anniversary) exceeds
the greatest of (x) the product of 1% and the outstanding principal balance of
all the Mortgage Loans on the Distribution Date immediately preceding such
anniversary, (y) the outstanding principal balance of Mortgage Loans secured by
Mortgaged Properties in the highest California zip code concentration on the
Distribution Date immediately preceding such anniversary, and (z) twice the
outstanding principal balance of the Mortgage Loan which has the largest
outstanding principal balance on the Distribution Date immediately preceding
such anniversary.
Adjusted Loan Cap: A per annum rate, for any Distribution Date and:
(a) the Class A-1 Certificates, equal to the excess, if any, of: (a)
the related WAC Cap for that Distribution Date, over (b) a fraction,
expressed as a percentage, (i) the numerator of which is the product of:
(1) a fraction, expressed as a percentage, the numerator of which is 360
and the denominator of which is the actual number of days in the related
Interest Accrual Period, and (2) the amount of Net Deferred Interest for
that Distribution Date, and (ii) the denominator of which is the aggregate
Stated Principal Balance of the Mortgage Loans as of the first day of the
related Due Period (after giving effect to Principal Prepayments received
in the Principal Prepayment Period preceding that Due Period);
(b) the Class A-2 and Class A-3 Certificates and any Class of
Subordinate Certificates, equal to the excess, if any, of: (a) the related
WAC Cap for that Distribution Date, over (b) a fraction, expressed as a
percentage, (i) the numerator of which is the product of: (1) a fraction,
the numerator of which is the product of 12, and (2) the amount of Net
Deferred Interest for that Distribution Date, and (ii) the denominator of
which is the aggregate Stated Principal Balance of the Mortgage Loans as
of the first day of the related Due Period (after giving effect to
Principal Prepayments received in the Principal Prepayment Period
preceding that Due Period);
(c) the Class A-X-IO-1 Component, equal to the excess, if any, of
(1) the Adjusted Loan Cap for the Senior Certificates for that
Distribution Date (expressed as a rate calculated on the basis of a
360-day year comprised of twelve 30-day months) over (2) the weighted
average of the Pass-Through Rates of the Senior Certificates (other than
the Class A-X Certificates) and the Class A-X-PO-1 Component for that
Interest Accrual Period (weighted on the basis of their respective Class
Certificate Balances or Component Principal Balance, as applicable, and
expressed as a rate calculated on the basis of a 360-day year comprised of
twelve 30-day months); provided, however, that for purposes of computing
the Adjusted Loan Cap only, the Pass-Through Rates of the Senior
Certificates are computed by substituting "WAC Cap" for "Adjusted Loan
Cap" in the calculation thereof: and
(d) the Class A-X-IO-2 Component, equal to the excess, if any, of
(1) the Adjusted Loan Cap for the Subordinate Certificates for that
Distribution Date (adjusted to a rate calculated on the basis of a 360-day
year comprised of twelve 30-day months) over (2) the weighted average of
the Pass-Through Rates of the Subordinate Certificates and the Class
A-X-PO-2 Component for that Interest Accrual Period (weighted on the basis
of their respective Class Certificate Balances or Component Principal
Balance, as applicable); provided, however, that for purposes of computing
the Adjusted Loan Cap only, that the Pass-Through Rates of the Subordinate
Certificates are computed by substituting "WAC Cap" for "Adjusted Loan
Cap" in the calculation thereof.
Advance: Any Monthly Advance or Servicing Advance.
Affiliate: With respect to any Person, any other Person controlling,
controlled by or under common control with such first Person. For the purposes
of this definition, "control" means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Agreement: This Pooling and Servicing Agreement and all amendments
or supplements hereto.
Allocable Share: With respect to any Distribution Date and any Class
of Subordinate Certificates, the portion of the Subordinate Optimal Principal
Amount allocable to such Class, equal to the lesser of (A) the product of the
Subordinate Optimal Principal Amount on such Distribution Date and a fraction,
the numerator of which is the related Class Certificate Balance of that Class
and the denominator of which is the aggregate of the Class Certificate Balances
of the Subordinate Certificates and (B) the Subordinate Optimal Principal Amount
for such Distribution Date, minus the Allocable Share for each Class of
Subordinate Certificates senior in payment priority to such Class; provided,
that no Class of Subordinate Certificates (other than the Class of Subordinate
Certificates then Outstanding with the highest priority of distribution) will be
entitled on any Distribution Date to receive distributions pursuant to clauses
(5), (6), and (7) of the definition of Subordinate Optimal Principal Amount
unless the Subordinate Certificates Prepayment Distribution Trigger for that
Class is satisfied for that Distribution Date; if the Subordinate Certificates
Prepayment Distribution Trigger is not satisfied for an outstanding Class of
Subordinate Certificates, those amounts will be distributable to the remaining
Classes of Subordinate Certificates for which the Subordinate Certificates
Prepayment Distribution Trigger is satisfied, pro rata, according to Class
Certificate Balance.
Analytics Company: Intex Solutions, Inc., or any other bond
analytics service provider identified to the Securities Administrator by the
Depositor.
Assignment of Mortgage: An executed assignment of the Mortgage,
notice of transfer or equivalent instrument in recordable form (other than the
assignee's name and recording information not yet returned from the recording
office), reflecting the sale of the Mortgage to the Trustee.
Available Funds: With respect to any Distribution Date and the
Mortgage Loans, to the extent received by the Securities Administrator (x) the
sum of (i) all scheduled installments of interest (net of the related Expense
Fees and any lender paid mortgage insurance premiums, if any, and including,
with respect to the first Distribution Date, the Initial Distribution Interest
Adjustment Amount) and principal due on the Due Date on such Mortgage Loans in
the related Due Period and received by the Servicer on or prior to the related
Determination Date, together with any Monthly Advances in respect thereof; (ii)
certain unscheduled payments in respect of the Mortgage Loans received by the
Servicer during the related Principal Prepayment Period, including Principal
Prepayments, Condemnation Proceeds, Insurance Proceeds, Liquidation Proceeds and
Subsequent Recoveries (in each case, net of unreimbursed expenses incurred in
connection with a liquidation or foreclosure and unreimbursed Advances, if any);
(iii) all Compensating Interest paid by the Servicer in connection with
Prepayment Interest Shortfalls for that Distribution Date resulting from
Principal Prepayments; (iv) all Substitution Adjustment Amounts with respect to
substitutions of Mortgage Loans that occur on or prior to the related
Determination Date; (v) all amounts received with respect to such Distribution
Date as the Repurchase Price in respect of a Mortgage Loan repurchased on or
prior to the related Determination Date; and (vi) the proceeds received with
respect to the termination of the Trust pursuant to clause (a) of Section 11.01;
reduced by (y) amounts in reimbursement for Advances previously made with
respect to the Mortgage Loans and other amounts as to which the Master Servicer,
the Securities Administrator, the Servicer, the Depositor, the Custodian or the
Trustee are entitled to be paid or reimbursed pursuant to this Agreement. The
Class P Certificateholders will be entitled to all Prepayment Premiums received
on the Mortgage Loans and such amounts will not be part of Available Funds or
available for distribution to the Holders of the Certificates. The Class L
Certificateholders will be entitled to all late payment charges received on the
Mortgage Loans and such amounts will not be part of Available Funds or available
for distribution to the Holders of the Certificates.
Back-Up Certification: Has the meaning set forth in Section 8.15(d).
Bankruptcy Losses: Realized Losses that are incurred as a result of
Debt Service Reductions and Deficient Valuations.
Bankruptcy Coverage Termination Date: The point in time at which the
Bankruptcy Loss Coverage Amount is reduced to zero.
Bankruptcy Loss Coverage Amount: With respect to any Distribution
Date, an amount equal to approximately $116,444, minus the aggregate amount of
previous Deficient Valuations and Debt Service Reductions. As of any
Distribution Date on or after the Cross-Over Date, the Bankruptcy Loss Coverage
Amount will be zero. The Bankruptcy Loss Coverage Amount may be reduced or
modified upon written confirmation from the Rating Agencies that the reduction
or modification will not adversely affect the then current ratings of the Senior
Certificates by the Rating Agencies.
Book-Entry Certificates: As specified in the Preliminary Statement.
Business Day: Any day other than (i) Saturday or Sunday, or (ii) a
day on which banking and savings and loan institutions, in (a) the States of New
York or California, (b) the State in which the Servicer's servicing operations
are located, or (c) any State in which any Corporate Trust Office is located,
including Minnesota and Maryland, are authorized or obligated by law or
executive order to be closed.
Capitalized Advance: With respect to any Mortgage Loan and as of any
date of determination, the amount of Advances that were added to the outstanding
Stated Principal Balance of such Mortgage Loan in association with a
modification of such Mortgage Loan.
Carryover Shortfall Amount: For any Distribution Date and each Class
of Offered Certificates (other than Class A-X and Class A-R Certificates), the
sum of (a) the excess, if any, of (1) the amounts of interest such Class of
Certificates would have been entitled to receive on such Distribution Date
(prior to reduction for any Net Deferred Interest, Net Interest Shortfalls or
other interest shortfalls) had its Pass-Through Rate not been subject to the
related WAC Cap, over (2) the amount of interest such Class of Certificates is
entitled to receive on such Distribution Date based on the related WAC Cap
(prior to reduction for any Net Deferred Interest, Net Interest Shortfalls or
other interest shortfalls), and (b) the unpaid portion of any such excess from
prior Distribution Dates and interest accrued thereon at the then-applicable
Pass-Through Rate on such Class of Certificates, without giving effect to the
related WAC Cap.
Carryover Shortfall Reserve Fund Account: The Carryover Shortfall
Reserve Fund Account created pursuant to Section 4.04 of this Agreement, which
will consist of deposits made pursuant to Section 4.01(a), if any, subject to
the obligation to pay amounts specified in Section 4.04. The Carryover Shortfall
Reserve Fund Account is created and maintained by the Securities Administrator
for the benefit of the Certificateholders and designated "▇▇▇▇▇ Fargo Bank, N.A.
in the name of registered holders of BCAP LLC Trust 2008-IND1 Mortgage
Pass-Through Certificates, Series 2008-IND1." Funds in the Carryover Shortfall
Reserve Fund Account shall be held in trust for the Principal Certificateholders
for the uses and purposes set forth in this Agreement. Amounts on deposit in the
Carryover Shortfall Reserve Fund Account shall not be invested.
Certificate: Any one of the Certificates executed by the Securities
Administrator in substantially the forms attached hereto as exhibits.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such 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 shall be deemed not
to be 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 such consent has been obtained; provided, however,
that if any such Person (including the Depositor) owns 100% of the Percentage
Interests evidenced by a Class of Certificates, such Certificates shall be
deemed to be Outstanding for purposes of any provision hereof that requires the
consent of the Holders of Certificates of a particular Class as a condition to
the taking of any action hereunder. The Securities Administrator 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.
Certificates: As specified in the Preliminary Statement.
Certification Parties: Has the meaning set forth in Section 8.15(d).
Certifying Person: Has the meaning set forth in Section 8.15(d).
Class: All Certificates bearing the same class designation as set
forth in this Agreement.
Class A Certificates: As specified in the Preliminary Statement.
Class A-R Certificates: All Certificates bearing the Class
designation of "Class A-R."
Class A-X Interest: The Upper Tier REMIC Regular Interest
represented by the Class A-X Certificates as specified and described in the
Preliminary Statement and the related footnote thereto.
Class B Certificates: As specified in the Preliminary Statement.
Class Certificate Balance: With respect to any Class of Certificates
(other than the Class A-X Certificates), at any date, (A) the sum of (x) the
maximum dollar amount of principal to which the Holder thereof is then entitled
hereunder, such amount being equal to the Denomination thereof and (y) any Net
Deferred Interest allocated to such Class on the related Distribution Date and
all previous Distribution Dates and minus (B) (i) all distributions of principal
previously made with respect thereto and, (ii) in the case of a Class of
Subordinate Certificates, the portion, if any, of any Subordinate Certificate
Writedown Amount allocated to that Class for previous Distribution Dates and,
without duplication, in the case of a Class of Subordinate Certificates or
Senior Certificates, the amount of Realized Losses, including Excess Losses,
allocated to such Class of Certificates; provided, however, that immediately
following the Distribution Date on which a Subsequent Recovery is distributed,
the Class Certificate Balance of any Class or Classes of Certificates that have
been previously reduced by Realized Losses shall be increased, in order of
seniority, by the amount of the Subsequent Recovery distributed on such
Distribution Date (up to the amount of Realized Losses allocated to such Class
or Classes of Certificates). With respect to the Class A-X Certificates and any
date, Class Certificate Balance means the aggregate Component Principal Balance
of its PO Components. The Class P and Class L Certificates have no Class
Certificate Balance.
Class L Certificates: All Certificates bearing the class designation
of "Class L."
Class LT-AR Interest: The sole Class of "residual interest" in the
Lower Tier REMIC evidenced by the Class A-R Certificates.
Class P Certificates: All Certificates bearing the class designation
of "Class P."
Class UT-AR Interest: The sole Class of "residual interest" in the
Upper Tier REMIC evidenced by the Class A-R Certificates.
Closing Date: February 13, 2008.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
Collection Account: The "Custodial Account" as defined in the
IndyMac Servicing Agreement.
Commission: The U.S. Securities and Exchange Commission.
Components: Solely for purposes of calculating distributions of
principal and interest and the allocation of Realized Losses and Net Deferred
Interest, the Class A-X Certificates will be comprised of the components having
the designations, initial Component Principal Balances and initial Component
Notional Amounts set forth below.
Component Initial Component Initial Component
Class Designation Principal Balance Notional Amount
---------------------- -------------- ----------------- ----------------
Class A-X Certificates Class A-X-IO-1 N/A $325,906,100
Component
Class A-X-IO-2 N/A $45,496,942
Component
Class A-X-PO-1 $0 N/A
Component
Class A-X-PO-2 $0 N/A
Component
The components comprising the Class A-X Certificates will not be
separately transferable from such Class of Certificates.
Component Notional Amount: For the Interest Accrual Period related
to any Distribution Date,
(a) for the Class A-X-IO-1 Component, the sum of (i) the aggregate
Class Certificate Balance of the Class A Certificates (other than the
Class A-X Certificates) immediately prior to that Distribution Date and
(ii) the Component Principal Balance of the Class A-X-PO-1 Component
immediately prior to that Distribution Date, and
(b) for the Class A-X-IO-2 Component, the sum of (1) the excess, if
any, of the aggregate Stated Principal Balance of the Mortgage Loans as of
the first day of the related Due Period (after giving effect to principal
prepayments received in the Principal Prepayment Period preceding that Due
Period) over the aggregate Class Certificate Balance of the Senior
Certificates (not including the Class A-X Certificates but including the
Component Principal Balance of the Class A-X-PO-1 Component) immediately
prior to that Distribution Date and (2) the Component Principal Balance of
the Class A-X-PO-2 Component immediately prior to that Distribution Date.
Component Principal Balance: For each PO Component, initially an
amount equal to zero, and as of each Distribution Date, such initial amount as
(I) increased by (x) the amount of Net Deferred Interest on the Mortgage Loans
allocated to the IO Component on all prior Distribution Dates with the same
alpha-numeric designation, and (y) the amount of Subsequent Recoveries allocated
to that PO Component on all prior Distribution Dates as set forth under Section
4.03, and (II) reduced by (x) all amounts actually distributed as principal of
that PO Component on all prior Distribution Dates, and (y) all Realized Losses
applied in reduction of principal of that PO Component on all prior Distribution
Dates.
Compensating Interest: For any Distribution Date, the Prepayment
Interest Shortfall, if any, for such Distribution Date, with respect to
Principal Prepayments by the Mortgagor (excluding any payments made upon
liquidation of the Mortgage Loan).
Condemnation Proceeds: All awards or settlements in respect of a
Mortgaged Property, whether permanent or temporary, partial or entire, by
exercise of the power of eminent domain or condemnation, to the extent not
required to be released to a Mortgagor in accordance with the terms of the
related Mortgage Loan Documents.
Corporate Trust Office: With respect to the Securities
Administrator: (i) for certificate transfer purposes, the office of the
Securities Administrator at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Services-BCAP 2008-IND1, (ii) for
all other purposes, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Client Manager-BCAP LLC 2008-IND1, facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇, and
which is the address to which notices to and correspondence with the Securities
Administrator should be directed, or (iii) at such other address as the
Securities Administrator may designate from time to time by notice to the
Certificateholders. With respect to the Trustee, the designated office of the
Trustee 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 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, and its telephone number is (▇▇▇) ▇▇▇-▇▇▇▇.
Corresponding Class: The Class of interests in the Lower Tier REMIC
or Upper Tier REMIC created under this Agreement that corresponds to the Class
of interests in the other such Trust REMIC, as applicable, or to a Class of
Certificates in the manner set out below:
Corresponding Corresponding
Lower Tier REMIC Upper Tier REMIC Corresponding
Regular Interest Interest Class of Certificates
---------------- ---------------- ---------------------
Class LT-A-1 Class A-1 Class A-1
Class LT-A-2 Class A-2 Class A-2
Class LT-A-3 Class A-3 Class A-3
Class LT-UTAR Class A-R Class A-R
Class LT-B-1 Class B-1 Class B-1
Class LT-B-2 Class B-2 Class B-2
Class LT-B-3 Class B-3 Class B-3
Class LT-B-4 Class B-4 Class B-4
Class LT-B-5 Class B-5 Class B-5
Class LT-B-6 Class B-6 Class B-6
Cross-Over Date: The Distribution Date on which the Class
Certificate Balances of the Subordinate Certificates have been reduced to zero.
Custodial File: With respect to each Mortgage Loan, all Mortgage
Loan Documents which are delivered to, and received by, the Custodian or which
at any time comes into the possession of the Custodian.
Custodian Fee: With respect to any Distribution Date (commencing
with the February 2008 Distribution Date), the amount charged by the Custodian
to the Master Servicer for custodial services with respect to the Mortgage Loans
performed by the Custodian during the preceding calendar month (commencing with
the month of February 2008), based on a custodial fee schedule furnished by the
Custodian to the Master Servicer.
Custodian: Deutsche Bank National Trust Company, or its successors
in interest or permitted assigns, or any successor to the Custodian under this
Agreement as herein provided.
Cut-off Date: January 1, 2008.
Cut-off Date Pool Principal Balance: The aggregate Stated Principal
Balances of all Mortgage Loans as of the Cut-off Date.
Cut-off Date Principal Balance: As to any Mortgage Loan, the Stated
Principal Balance thereof as of the close of business on the Cut-off Date (after
giving effect to payments of principal due on that date, whether or not
received).
Debt Service Reduction: With respect to any Mortgage Loan, a
reduction by a court of competent jurisdiction in a proceeding under the United
States Bankruptcy Code in the Scheduled Payment for such Mortgage Loan which
became final and non-appealable, except such a reduction resulting from a
Deficient Valuation or any reduction that results in a permanent forgiveness of
principal.
Deferred Interest: For any Mortgage Loan and any Distribution Date,
an amount equal to the excess, if any, of the interest accrued during the
related Mortgage Loan accrual period at the applicable Mortgage Rate over the
entire Scheduled Payment due on such Mortgage Loan on the related Due Date.
Deficient Valuation: With respect to any Mortgage Loan, a valuation
of the related Mortgaged Property by a court of competent jurisdiction in an
amount less than the then outstanding principal balance of the Mortgage Loan,
which valuation results from a proceeding initiated under the United States
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).
Deleted Mortgage Loan: A Mortgage Loan which is purchased or
repurchased by the Original Loan Seller, the Purchasers or the Depositor in
accordance with the terms of the IndyMac Agreements, the Representation Letter
or this Agreement, as applicable, or which is, in the case of a substitution
pursuant to the IndyMac Agreements replaced or to be replaced with a substitute
mortgage loan.
Delinquent: With respect to any Mortgage Loan, any Scheduled
Payments that are delinquent as calculated in accordance with the MBA method
(i.e., actual day count past due).
Denomination: With respect to each Certificate, the amount set forth
on the face thereof as the "Initial Certificate Balance of this Certificate" or
the Percentage Interest appearing on the face thereof.
Depositor: BCAP LLC, a Delaware limited liability company, and its
successors in interest.
Depository: The initial Depository shall be The Depository Trust
Company, the nominee of which is CEDE & Co., as the registered Holder of the
Book-Entry Certificates. The Depository shall at all times be a "clearing
corporation" as defined in Section 8-102(a)(5) of the Uniform Commercial Code of
the State of New York.
Depository Institution: Any depository institution or trust company,
including the Trustee, that (a) is incorporated under the laws of the United
States of America or any State thereof, (b) is subject to supervision and
examination by federal or state banking authorities and (c) has outstanding
unsecured commercial paper or other short-term unsecured debt obligations that
are rated "F1+" by Fitch and "A-1" by Standard & Poor's.
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: With respect to the Servicer Remittance Date,
two (2) Business Days immediately preceding the Servicer Remittance Date.
Disqualified Non-U.S. Person: With respect to a Residual
Certificate, (i) any Non-U.S. Person or agent thereof other than a Non-U.S.
Person that holds the Residual Certificate in connection with the conduct of a
trade or business within the United States and has furnished the transferor and
the Securities Administrator with an effective IRS Form W-8ECI, or (ii) any
domestic entity classified as a partnership under the Code if any of its direct
or indirect partners (other than through a U.S. corporation) are (or are
permitted to be under the applicable partnership agreement) Disqualified
Non-U.S. Persons, unless such Person set forth in (i) or (ii) above has
delivered to both the transferor and the Securities Administrator an opinion of
a nationally recognized tax counsel to the effect that the transfer of the
Residual Certificate to it is in accordance with the requirements of the Code
and the regulations promulgated thereunder and that such transfer of the
Residual Certificate will not be disregarded for federal income tax purposes.
Distribution Account: The separate Eligible Account created and
maintained by the Securities Administrator pursuant to Section 3.01(b) in the
name of the Securities Administrator for the benefit of the Certificateholders
and designated "▇▇▇▇▇ Fargo Bank, N.A. in trust for registered holders of BCAP
LLC Trust 2008-IND1 Mortgage Pass-Through Certificates, Series 2008-IND1". Funds
in the Distribution Account shall be held in trust for the Certificateholders
for the uses and purposes set forth in this Agreement.
Distribution Date: The 25th day of each month or, if such day is not
a Business Day, the immediately succeeding Business Day, commencing in February
2008.
Document Certification and Exception Report: The report attached to
Exhibit F hereto.
Due Date: The day of the month on which the Scheduled Payment is due
on a Mortgage Loan, exclusive of any days of grace.
Due Period: With respect to any Distribution Date, the period
commencing on the second day of the calendar month preceding the month in which
that Distribution Date occurs and ending on the first day of the calendar month
in which that Distribution Date occurs.
Eligible Account: Either (i) an account maintained with a federal or
state-chartered depository institution or trust company that complies with the
definition of Eligible Institution (provided, however, that following a
downgrade, withdrawal, or suspension of such Eligible Institution's Standard &
Poor's rating below the levels set forth in definition of "Eligible Institution"
with respect to any Eligible Account, the applicable Eligible Institution shall
either (x) obtain a guaranty from a guarantor which satisfies the Standard &
Poor's requirements set forth in such definition, or (y) transfer any such
Eligible Account to one or more segregated trust accounts in the trust
department of an institution which satisfies the definition of "Eligible
Institution", in either case, as promptly as practicable (and in any case within
not more than 60 calendar days with respect to the Excess Reserve Fund Account,
or 30 calendar days with respect to each other Account)), (ii) an account
maintained with the corporate trust department of a federal depository
institution or state-chartered depository institution subject to regulations
regarding fiduciary funds on deposit similar to Title 12 of the U.S. Code of
Federal Regulation Section 9.10(b), which, in either case, has corporate trust
powers and is acting in its fiduciary capacity or (iii) 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 Securities Administrator. Each Eligible Account shall be a separate account.
Eligible Institution: A federal or state-chartered depository
institution or trust company the commercial paper, short-term debt obligations,
or other short-term deposits of which are rated at least "A-1+" by Standard &
Poor's if the amounts on deposit are to be held in the account for no more than
365 days (or at least "A-2" by Standard & Poor's if the amounts on deposit are
to be held in the account for no more than 30 days), or the long-term unsecured
debt obligations of which are rated at least "AA-" by Standard & Poor's if the
amounts on deposit are to be held in the account for no more than 365 days, and
the commercial paper, short-term debt obligations, or other short-term deposits
of which are rated at least "F-1" by Fitch (or a comparable rating if another
Rating Agency is specified by the Depositor by written notice to the Securities
Administrator) (in each case to the extent they are designated as Rating
Agencies in the Preliminary Statement).
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 Prohibited
Transaction Exemption ("PTE") 2007-5, 72 Fed. Reg. 13130 (2007) (or any
successor thereto), or any substantially similar administrative exemption
granted by the U.S. Department of Labor.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
Event of Default: As defined in the IndyMac Agreements.
Excess Losses: Any Special Hazard Losses in excess of the related
Special Hazard Loss Coverage Amount, Bankruptcy Losses in excess of the related
Bankruptcy Loss Coverage Amount and Fraud Losses in excess of the related Fraud
Loss Coverage Amount.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Expense Fee Rate: As to each Mortgage Loan, a per annum rate equal
to the Servicing Fee Rate and, if applicable, any lender paid mortgage insurance
premium rate.
Expense Fees: As to each Mortgage Loan, the fees calculated by
reference to the Expense Fee Rate.
▇▇▇▇▇▇ ▇▇▇: The Federal National Mortgage Association, and its
successors in interest.
Final Scheduled Distribution Date: The Final Scheduled Distribution
Date for each Class of Certificates is the Distribution Date occurring in
October 2047.
Fitch: Fitch, Inc. and its successors, and if such company shall for
any reason no longer perform the functions of a securities rating agency,
"Fitch" shall be deemed to refer to any other "nationally recognized statistical
rating organization" as set forth on the most current list of such organizations
released by the Commission. For purposes of Section 12.05(c) the address for
notices to Fitch shall be Fitch, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, or such other address as Fitch may hereafter furnish to the
Depositor, the Servicer, the Master Servicer, the Securities Administrator, the
Custodian and the Trustee.
Form 8-K Disclosure Information: As defined in Section 8.15(e).
Fractional Interest: With respect to any Distribution Date and each
Class of Subordinate Certificates, a fraction (expressed as a percentage), the
numerator of which is the aggregate Class Certificate Balance of such Class and
each Class of Subordinate Certificates subordinate to such Class, if any, and
the denominator of which is the aggregate Stated Principal Balance of the
Mortgage Loans.
Fraud Loan: A Liquidated Loan as to which a Fraud Loss has occurred.
Fraud Loss: Any Realized Losses incurred by reason of a default
arising from fraud, dishonesty or misrepresentation in the origination of the
related Mortgage Loan.
Fraud Loss Coverage Amount: With respect to any Distribution Date,
the amount set forth in the following table for the indicated period:
Period Fraud Loss Coverage Amount
----------------------------- ----------------------------------------------
Closing Date through 3.00% of the aggregate Cut-Off Date Pool
January 2009 Balance minus the aggregate amount of Fraud
Loss that would have been allocated to the
Subordinate Certificates in the absence of the
Loss Allocation Limitation since the Cut-Off
Date
February 2009 through January 2.00% of the aggregate Cut-off Date Pool
2010 Balance minus the aggregate amount of Fraud
Loss that would have been allocated to the
Subordinate Certificates in the absence of the
Loss Allocation Limitation since the Cut-Off
Date
February 2010 through January 1.00% of the aggregate Cut-Off Date Pool
2013 Balance minus the aggregate amount of Fraud
Loss that would have been allocated to the
Subordinate Certificates in the absence of the
Loss Allocation Limitation since the Cut-Off
Date
After the earlier to occur of $0
January 2013 and the Cross-Over
Date
Fraud Loss Coverage Termination Date: The point in time at which the
Fraud Loss Coverage Amount is reduced to zero.
▇▇▇▇▇▇▇ Mac: 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, and its successors in interest.
Gross Margin: The fixed percentage amount set forth in the related
Mortgage Note to be added to the applicable Index to determine the Mortgage
Rate.
Index: As to each Mortgage Loan, the index from time to time in
effect for the adjustment of the Mortgage Rate set forth as such in the related
Mortgage Note.
IndyMac Agreements: Collectively, the IndyMac Assignment Agreement,
the IndyMac Purchase Agreement and the IndyMac Servicing Agreement.
IndyMac Assignment Agreement: The Assignment and Recognition
Agreement, dated as of the Closing Date, among IndyMac Bank F.S.B., the Master
Servicer and Securities Administrator, Barclays Bank PLC and the Depositor, a
copy of which is attached hereto as Exhibit L.
IndyMac Purchase Agreement: The Amended and Restated Master Mortgage
Loan Purchase Agreement, dated January 1, 2008, between Barclays Bank PLC and
the Original Loan Seller, a copy of which is attached hereto as Exhibit M-1.
IndyMac Servicing Agreement: The Servicing Agreement, dated October
1, 2006, between the Purchaser and the Servicer, a copy of each which is
attached hereto as Exhibit M-2.
Initial Distribution Interest Adjustment Amount: $50,978.26 to be
deposited by Barclays Bank PLC or its designee into the Distribution Account
prior to the first Distribution Date, February 25, 2008, deemed to represent
amounts allocable to interest in connection with the interest collections on the
Mortgage Loans for the first Distribution Date.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged Property.
Interest Accrual Period: With respect to the Class A-1 Certificates
and any Distribution Date, the period commencing on the Distribution Date
occurring in the month preceding the month in which the current Distribution
Date occurs and ending on the day immediately preceding the current Distribution
Date (or, in the case of the first Distribution Date, the period from and
including the Closing Date to but excluding such first Distribution Date). With
respect to the Class A Certificates (other than the Class A-1 Certificates) and
the Class B Certificates and any Distribution Date, the calendar month preceding
such Distribution Date. For purposes of computing interest accruals on each
Class of Class A and Class B Certificates, each Interest Accrual Period has the
actual number of days in such month and each year is assumed to have 360 days.
Investment Account: As defined in Section 3.02(a).
IO Component: The Class A-X-IO-1 Component or the Class A-X-IO-2
Component. The IO Components will not have a Component Principal Balance or
Class Principal Balance and are not entitled to any distributions in respect of
principal, but will bear interest on their respective outstanding Component
Notional Amounts.
IRS: The Internal Revenue Service.
LIBOR: With respect to any Interest Accrual Period for the LIBOR
Certificates, the rate determined by the Securities Administrator on the related
LIBOR Determination Date on the basis of the offered rate for one month U.S.
dollar deposits as such rate appears on Reuters Page LIBOR01 as of 11:00 a.m.
(London time) on such date; provided, that if such rate does not appear on
Reuters Page LIBOR01, the rate for such date will be determined on the basis of
the rates at which one-month U.S. dollar deposits are offered by the Reference
Banks at approximately 11:00 a.m. (London time) on such date to prime banks in
the London interbank market. In such event, the Securities Administrator shall
request the principal London office of each of the Reference Banks to provide a
quotation of its rate. If at least two such quotations are provided, the rate
for that date will be the arithmetic mean of the quotations (rounded upwards if
necessary to the nearest whole multiple of 1/16%). If fewer than two quotations
are provided as requested, the rate for that date will be the arithmetic mean of
the rates quoted by major banks in New York City, selected by the Securities
Administrator (after consultation with the Depositor), at approximately 11:00
a.m. (New York City time) on such date for one-month U.S. dollar deposits of
leading European banks.
LIBOR Certificates: As defined in the Preliminary Statement.
LIBOR Determination Date: With respect to any LIBOR Certificates and
any Interest Accrual Period, the second London Business Day preceding the
commencement of such Interest Accrual Period.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) which was liquidated in the
Principal Prepayment Period preceding the month of such Distribution Date and as
to which the Servicer has certified that it has received all amounts it expects
to receive in connection with the liquidation of such Mortgage Loan including
the final disposition of an REO Property.
Liquidation Proceeds: Cash received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or assignment
of such Mortgage Loan, trustee's sale, foreclosure sale or otherwise, or the
sale of the related Mortgaged Property if the Mortgaged Property is acquired in
satisfaction of the Mortgage Loan, including any Subsequent Recoveries.
London Business Day: Any day on which dealings in deposits of United
States dollars are transacted in the London interbank market.
Loss Allocation Limitation: As defined in Section 4.03(d).
Lower Tier Principal Amount: As set forth in the Preliminary
Statement.
Lower Tier REMIC Regular Interest: Each of the Class LT-A-1, Class
LT-A-2, Class LT-A-3, Class LT-UTAR, Class LT-B-1, Class LT-B-2, Class LT-B-3,
Class LT-B-4, Class LT-B-5, Class LT-B-6, Class LT-Accrual-1 and Class
LT-Accrual-2 Interests, as set forth in the Preliminary Statement.
Lower Tier REMIC: As set forth in the Preliminary Statement.
Lower Tier REMIC Interest Rate: As set forth in the Preliminary
Statement.
LT Accretion Directed Classes: As set forth in the Preliminary
Statement.
Master Servicer: ▇▇▇▇▇ Fargo, and if a successor master servicer is
appointed hereunder, such successor.
Master Servicer Event of Default: As defined in Section 9.04.
Master Servicing Officer: Any officer of the Master Servicer
involved in, or responsible for, the administration and master servicing of the
Mortgage Loans.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any successor
thereto.
MERS Loan: Any Mortgage Loan registered with MERS on the MERS
System.
MERS System: The system of recording transfers of mortgages
electronically maintained by MERS.
Monthly Advance: The advances made or required to be made by IndyMac
on any Servicer Remittance Date pursuant to the IndyMac Servicing Agreement.
Monthly Statement: The statement made available to the
Certificateholders pursuant to Section 4.02.
Moody's: ▇▇▇▇▇'▇ Investors Service, Inc. and its successors in
interest. If ▇▇▇▇▇'▇ is designated as a Rating Agency in the Preliminary
Statement, for purposes of Section 12.05(b) the address for notices to Moody's
shall be ▇▇▇▇▇'▇ Investors Service, Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: Residential Mortgage Pass-Through Group, or such other address
as Moody's may hereafter furnish to the Depositor, the Master Servicer, the
Securities Administrator, the Custodian, the Servicer and the Trustee.
Mortgage: The mortgage, deed of trust or other instrument identified
on the Mortgage Loan Schedule as securing a Mortgage Note, including all riders
thereto.
Mortgage File: The items pertaining to a particular Mortgage Loan
contained in either the Servicing File or Custodial File.
Mortgage Interest Rate: The annual rate of interest borne on a
Mortgage Note with respect to each Mortgage Loan.
Mortgage Loan: An individual Mortgage Loan which is the subject of
the IndyMac Agreements, each Mortgage Loan originally sold and subject to the
IndyMac Agreements being identified on the Mortgage Loan Schedule, which
Mortgage Loan includes without limitation the Mortgage File, the Custodial File,
the Servicing File, the Scheduled Payments, Principal Prepayments, Liquidation
Proceeds, Condemnation Proceeds, Insurance Proceeds, REO Disposition proceeds,
Prepayment Premiums and all other rights, benefits, proceeds and obligations
arising from or in connection with such Mortgage Loan.
Mortgage Loan Documents: The mortgage loan documents pertaining to
each Mortgage Loan.
Mortgage Loan Schedule: A schedule of Mortgage Loans delivered to
the Trustee and Custodian and referred to on Schedule I, such schedule setting
forth the following information with respect to each Mortgage Loan as of the
Cut-off Date: (1) the Original Loan Seller's Mortgage Loan number; (2) the
address, city, state and zip code of the Mortgaged Property; (3) a code
indicating whether the Mortgagor is self-employed; (4) a code indicating whether
the Mortgaged Property is owner-occupied, investment property or a second home;
(5) a code indicating whether the Mortgaged Property is a single family
residence, two family residence, three-family residence, four family residence,
condominium, manufactured housing or planned unit development; (6) the purpose
of the Mortgage Loan; (7) the type of Mortgage Loan; (8) the Mortgage Interest
Rate at origination; (9) the current Mortgage Interest Rate; (10) the name of
the Servicer; (11) the Servicing Fee Rate; (12) the current Scheduled Payment;
(13) the original term to maturity; (14) the remaining term to maturity; (15)
the principal balance of the Mortgage Loan as of the Cut-off Date after
deduction of payments of principal due on or before the Cut-off Date whether or
not collected; (16) the loan-to-value ratio at origination; (17) the actual
principal balance of the Mortgage Loan as of the Cut-off Date; (18) social
security number of the Mortgagor; (19) a code indicating whether the Mortgaged
Property is a leasehold estate; (20) the Due Date of the Mortgage Loan; (21)
whether the Mortgage Loan is insured by a primary mortgage insurance policy and
the name of the insurer; (22) the certificate number of the primary mortgage
insurance policy; (23) the amount of coverage of the primary mortgage insurance
policy, and if it is a lender-paid primary mortgage insurance policy, the
premium rate; (24) the type of appraisal; (25) a code indicating whether the
Mortgage Loan is a MERS Mortgage Loan; (26) documentation type (including asset
and income type); (27) first payment date; (28) the schedule of the payment
delinquencies in the prior 12 months; (29) FICO score; (30) the Mortgagor's
name; (31) the stated maturity date; (32) the original principal amount of the
mortgage; (33) the "pay through" date or the date of the last payment made; and
(34) with respect to each adjustable rate Mortgage Loan, the Gross Margin of
such Mortgage Loan. With respect to the Mortgage Loans in the aggregate: (1) the
number of Mortgage Loans; (2) the current aggregate outstanding principal
balance of the Mortgage Loans; (3) the weighted average Mortgage Interest Rate
of the Mortgage Loans; and (4) the weighted average maturity of the Mortgage
Loans.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor under a Mortgage Loan.
Mortgage Rate: The annual rate of interest borne on a Mortgage Note.
Mortgaged Property: The real property (or leasehold estate, if
applicable) identified on the Mortgage Loan Schedule as securing repayment of
the debt evidenced by a Mortgage Note.
Mortgagor: The obligor on a Mortgage Note.
MTA: With respect to any Interest Accrual Period, the twelve-month
average monthly yield on U.S. Treasury Securities adjusted to a constant
maturity of one-year, as published by the Federal Reserve Board in the Federal
Reserve Statistical Release "Selected Interest Rates (H.15)" as determined in
accordance with Section 4.08.
MTA Certificates: As defined in the Preliminary Statement.
MTA Determination Date: With respect to any Interest Accrual Period,
fifteen days prior to the commencement of such Interest Accrual Period.
Net Deferred Interest: With respect to each Distribution Date, the
excess, if any, of (x) any Deferred Interest that accrued on the Mortgage Loans
for the related Due Period, over (y) the aggregate amount of partial and full
Principal Prepayments collected on all the Mortgage Loans during the related
Principal Prepayment Period (net of any such Principal Prepayments that are used
to reimburse for Capitalized Advances).
Net Interest Shortfall: With respect to any Distribution Date, the
sum of (x) the Relief Act Interest Shortfall and (y) any related Net Prepayment
Interest Shortfall.
Net Mortgage Interest Rate: As to each Mortgage Loan and at any
time, the per annum rate equal to the Mortgage Interest Rate less the applicable
Expense Fee Rate.
Net Prepayment Interest Shortfall: For any Distribution Date, the
amount by which the sum of the Prepayment Interest Shortfalls for such
Distribution Date exceeds the Compensating Interest payments made with respect
to such Distribution Date.
NMWHFIT: A "Non-Mortgage Widely Held Fixed Investment Trust" as that
term is defined in Treasury Regulations Section 1.671-5(b)(12) or successor
provisions.
Non-Permitted Transferee: A Person other than a Permitted
Transferee.
Nonrecoverable Monthly Advance: Any Monthly Advance previously made
or proposed to be made in respect of a Mortgage Loan or REO Property that, in
the good faith business judgment of the Servicer or any successor Servicer
including the Trustee or Master Servicer, as applicable, will not or, in the
case of a proposed Monthly Advance, would not be ultimately recoverable from
related late payments, Insurance Proceeds, Condemnation Proceeds or Liquidation
Proceeds on such Mortgage Loan or REO Property as provided herein.
Nonrecoverable Servicing Advance: Any Servicing Advance previously
made or proposed to be made in respect of a Mortgage Loan or REO Property,
which, in the good faith business judgment of the Servicer or any successor
Servicer including the Trustee or Master Servicer, as applicable, will not or,
in the case of a proposed Servicing Advance, would not, be ultimately
recoverable from related Insurance Proceeds, Condemnation Proceeds, Liquidation
Proceeds or otherwise.
Non-U.S. Person: A person that is not a U.S. Person.
Notice of Final Distribution: The notice to be provided pursuant to
Section 11.02 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, the aggregate of the Component Notional Amounts of the IO
Components immediately prior to such Distribution Date.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: A certificate signed by the Chairman of the
Board or the Vice Chairman of the Board or the President or a Vice President or
an Assistant Vice President and by the Treasurer or the Secretary or one of the
Assistant Treasurers or Assistant Secretaries of the Servicer or the Original
Loan Seller, and delivered to the Master Servicer, as required by the IndyMac
Servicing Agreement.
Opinion of Counsel: A written opinion of counsel, who may be
in-house counsel for the Servicer, reasonably acceptable to the Trustee or
Securities Administrator (and/or such other Persons as may be set forth herein);
provided, that any Opinion of Counsel relating to (a) qualification of each
Trust REMIC or (b) compliance with the REMIC Provisions, must be (unless
otherwise stated in such Opinion of Counsel) an opinion of counsel who (i) is in
fact independent of the Servicer or the Trustee of the Mortgage Loans, (ii) does
not have any material direct or indirect financial interest in the Servicer or
the Trustee of the Mortgage Loans or in an Affiliate of either and (iii) is not
connected with the Servicer or Trustee of the Mortgage Loans as an officer,
employee, director or person performing similar functions.
Optional Termination Date: The first Distribution Date on which the
aggregate Stated Principal Balance of the Mortgage Loans, as of the last day of
the related Due Period, is equal to 10% or less of the Cut-off Date Pool
Principal Balance.
Original Loan Seller: IndyMac, in its capacity as Seller under the
IndyMac Purchase Agreement.
Original Subordinate Principal Balance: With respect to the Mortgage
Loans, the aggregate of the Class Certificate Balances of the Subordinate
Certificates as of the date of issuance of the Certificates.
Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(i) Certificates theretofore canceled by the Securities
Administrator or delivered to the Securities Administrator for
cancellation; and
(ii) Certificates in exchange for which or in lieu of which
other Certificates have been executed and delivered by the
Securities Administrator pursuant to this Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan with
a Stated Principal Balance greater than zero which was not the subject of a
Principal Prepayment in Full prior to such Due Date and which did not become a
Liquidated Mortgage Loan prior to such Due Date.
Ownership Interest: As to any Residual 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.
Pass-Through Margin: With respect to each Class of Class A
Certificates and Class B Certificates and any Distribution Date prior to the
first Distribution Date after the Optional Termination Date, the following
percentages:
Class A-1 1.200%
Class A-2 1.500%
Class A-3 1.500%
Class B-1 1.500%
Class B-2 1.500%
Class B-3 1.500%
Class B-4 1.500%
Class B-5 1.500%
Class B-6 1.500%
On the first Distribution Date after the Optional Termination Date,
the Pass-Through Margins for the Class A Certificates and Class B Certificates
shall increase to the rate set forth below:
Class A-1 2.400%
Class A-2 3.000%
Class A-3 3.000%
Class B-1 2.250%
Class B-2 2.250%
Class B-3 2.250%
Class B-4 2.250%
Class B-5 2.250%
Class B-6 2.250%
Pass-Through Rate: For each Class of Class A Certificates and Class
B Certificates, the per annum rate set forth or calculated in the manner set
forth 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,
such percentage interest being set forth on the face thereof or equal to the
percentage obtained by dividing the Denomination of such Certificate by the
aggregate of the Denominations of all Certificates of the same Class.
Permitted Investments: Any one or more of the following obligations
or securities acquired at a purchase price of not greater than par, regardless
of whether issued by the Servicer, the Master Servicer, the Securities
Administrator, or any of their respective Affiliates:
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or any
agency or instrumentality thereof, provided such obligations are backed by
the full faith and credit of the United States;
(ii) demand and time deposits in, certificates of deposit of, or
bankers' acceptances (which shall each have an original maturity of not
more than 90 days and, in the case of bankers' acceptances, shall in no
event have an original maturity of more than 365 days or a remaining
maturity of more than 30 days) denominated in United States dollars and
issued by, any Depository Institution and rated "F1+" by Fitch, "A-1+" by
Standard & Poor's, "P-1" by Moody's and "R-1" by DBRS (in each case, to
the extent they are designated as Rating Agencies in the Preliminary
Statement);
(iii) repurchase obligations with respect to any security referenced
in clause (i) above entered into with a Depository Institution (acting as
principal);
(iv) securities (which shall in no event have an original maturity
of more than 365 days) bearing interest or sold at a discount that are
issued by any corporation incorporated under the laws of the United States
of America or any state thereof and that are rated by Standard & Poor's
and Moody's (in each case, to the extent they are designated as Rating
Agencies in the Preliminary Statement), and by each other Rating Agency
that rates such securities in its highest long-term unsecured rating
categories at the time of such investment or contractual commitment
providing for such investment;
(v) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand or on a
specified date not more than 30 days after the date of acquisition
thereof) that is rated by Standard & Poor's and Moody's (in each case, to
the extent they are designated as Rating Agencies in the Preliminary
Statement), and by each other Agency that rates such securities in its
highest short-term unsecured debt rating available at the time of such
investment;
(vi) units of money market funds, including money market funds
managed or advised by the Depositor, the Master Servicer, the Securities
Administrator, or the Trustee or an Affiliate thereof, that have been
rated "Aaa" by Moody's, "AAAm" or "AAAm-G" by Standard & Poor's and, if
rated by Fitch, at least "AAA" by Fitch and "R-1" by DBRS (in each case,
to the extent they are designated as Rating Agencies in the Preliminary
Statement); and
(vii) if previously confirmed in writing to the Securities
Administrator, any other demand, money market or time deposit, or any
other obligation, security or investment, as may be acceptable to each of
the Rating Agencies as a permitted investment of funds backing "Aaa" or
"AAA" rated securities;
provided, however, that no instrument set forth hereunder shall evidence either
the right to receive (a) only interest with respect to the obligations
underlying such instrument or (b) both principal and interest payments derived
from obligations underlying such instrument and the interest and principal
payments with respect to such instrument provide a yield to maturity at par
greater than 120% of the yield to maturity at par of the underlying obligations.
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 referenced in Section 521 of the Code)
which is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income) on any
excess inclusions (as defined in Section 860E(c)(1) of the Code) with respect to
any Residual Certificate, (iv) rural electric and telephone cooperatives
described in Section 1381(a)(2)(C) of the Code, (v) a Person that is a
Disqualified Non-U.S. Person or a U.S. Person with respect to whom income from a
Residual Certificate is attributable to a foreign permanent establishment or
fixed base (within the meaning of an applicable income tax treaty) of such
Person or any other U.S. Person, (vi) an "electing large partnership" within the
meaning of Section 775 of the Code and (vii) any other Person so designated by
the Depositor based upon an Opinion of Counsel that the Transfer of an Ownership
Interest in a Residual Certificate to such Person may cause each Trust REMIC to
fail to qualify as a REMIC at any time that the Certificates are outstanding.
The terms "United States," "State" and "international organization" shall have
the meanings set forth 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 ▇▇▇▇▇▇▇ Mac, a majority
of its board of directors is not selected by such government unit.
Person: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint stock company, trust,
unincorporated organization or government, or any agency or political
subdivision thereof.
Physical Certificates: As specified in the Preliminary Statement.
PO Component: The Class A-X-PO-1 or Class A-X-PO-2 Components. The
PO Components have a Pass-Through Rate of 0.000% per annum.
Pool Stated Principal Balance: With respect to any Distribution
Date, the aggregate of the Stated Principal Balances of the Mortgage Loans for
such Distribution Date that were Outstanding Mortgage Loans on the Due Date in
the related Due Period.
Prepayment Interest Shortfall: With respect to any Servicer
Remittance Date, the sum of, for each Mortgage Loan that was, during the related
Principal Prepayment Period, the subject of a Principal Prepayment that was
applied by the Servicer to reduce the outstanding principal balance of such
Mortgage Loan on a date preceding the Due Date in the succeeding Principal
Prepayment Period, an amount equal to the product of (a) the Mortgage Interest
Rate net of the Expense Fee Rate for such Mortgage Loan, (b) the amount of the
Principal Prepayment for such Mortgage Loan, (c) 1/360 and (d) the number of
days commencing on the date on which such Principal Prepayment was applied and
ending on the last day of the related Principal Prepayment Period.
Prepayment Premium: Any prepayment premium, penalty or charge, if
any, required under the terms of the related Mortgage Note to be paid in
connection with a Principal Prepayment, to the extent permitted by law.
Principal Certificates: As specified in the Preliminary Statement.
Principal Payment Amount: For any Distribution Date, the sum of:
(1) the principal portion, if any, of the Scheduled Payments due on
each Mortgage Loan on the related Due Date without giving effect to any
Deficient Valuation or Debt Service Reduction that occurred prior to the
reduction of the Bankruptcy Loss Coverage Amount to zero;
(2) the Purchase Price of each Mortgage Loan that was repurchased by
the Original Loan Seller or another Person with respect to that Distribution
Date;
(3) any Substitution Adjustment Amount in respect of a Mortgage Loan
received with respect to that Distribution Date;
(4) the amount of net Insurance Proceeds or net Liquidation Proceeds
allocable to principal received in the prior calendar month with respect to any
Mortgage Loan that is not a Liquidated Loan;
(5) with respect to each Mortgage Loan that became a Liquidated Loan
during the prior calendar month, the lesser of:
(a) the Stated Principal Balance of that Mortgage Loan; and
(b) the amount of net Insurance Proceeds or net Liquidation
Proceeds allocable to principal received with respect to that
Mortgage Loan during the prior calendar month;
(6) the excess, if any, of (i) the aggregate of Principal
Prepayments or other recoveries of principal in respect of the Mortgage Loans
(other than a Liquidated Loan as specified in clause (5) above) received during
the related Principal Prepayment Period over (ii) the aggregate amount of
Deferred Interest accrued on the Mortgage Loans from the previous Due Date to
the Due Date related to such Distribution Date; and
(7) with respect to any Distribution Date prior to the Cross-Over
Date only, the Subsequent Recoveries received during the related Principal
Prepayment Period;
provided, however, that if a Deficient Valuation or Debt Service Reduction is
sustained with respect to a Mortgage Loan that is not a Liquidated Loan after
the Bankruptcy Loss Coverage Amount has been reduced to zero, the Principal
Payment Amount will be reduced on the related Distribution Date by the principal
portion of such Deficient Valuation or Debt Service Reduction.
Principal Prepayment: Any full or partial payment or other recovery
of principal on a Mortgage Loan (including upon liquidation of a Mortgage Loan)
which is received in advance of its scheduled Due Date and which is not
accompanied by an amount of interest representing scheduled interest due on any
date or dates in any month or months subsequent to the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment made by a
Mortgagor of the entire principal balance of a Mortgage Loan.
Principal Prepayment Period: As defined in the IndyMac Servicing
Agreement, as amended by the IndyMac Assignment Agreement.
Private Certificates: As specified in the Preliminary Statement.
Prospectus Supplement: The Prospectus Supplement, dated February 13,
2008, relating to the Offered Certificates (except the Private Certificates).
PTCE 95-60: As defined in Section 5.02(b).
PUD: A planned unit development.
Purchaser: Barclays Bank PLC, a public limited company registered in
England and Wales, and its successors in interest.
Rating Agency: Each of the Rating Agencies specified in the
Preliminary Statement. If such organization or a successor is no longer in
existence, "Rating Agency" shall be such nationally recognized statistical
rating organization, or other comparable Person, as is designated by the
Depositor, notice of which designation shall be given to the Master Servicer,
the Securities Administrator and Trustee. References herein to a given rating or
rating category of a Rating Agency shall mean such rating category without
giving effect to any modifiers. For purposes of Section 12.05(c), the addresses
for notices to each Rating Agency shall be the address specified therefor in the
definition corresponding to the name of such Rating Agency, or such other
address as either such Rating Agency may hereafter furnish to the Depositor and
the Trustee.
Realized Losses: With respect to any date of determination and any
Liquidated Mortgage Loan, the amount, if any, by which (a) the unpaid principal
balance of such Liquidated Mortgage Loan together with accrued and unpaid
interest thereon exceeds (b) the Liquidation Proceeds with respect thereto net
of the expenses incurred by the Servicer in connection with the liquidation of
such Liquidated Mortgage Loan and net of any amount of unreimbursed Servicing
Advances with respect to such Liquidated Mortgage Loan. In addition, the amount
of principal forgiven in connection with the modification of a Mortgage Loan
will also be a Realized Loss.
Record Date: With respect to any Distribution Date and the Class A-1
Certificates, the close of business on the Business Day immediately preceding
such Distribution Date, and for the Certificates, other than the Class A-1
Certificates (but also for the Class A-1 Certificates, if the Class A-1
Certificates are issued in definitive form), the close of business on the last
Business Day of the month preceding the month in which such applicable
Distribution Date occurs (or in the case of the first Distribution Date, the
Closing Date).
Reference Bank: As defined in Section 4.07.
Regular Certificates: As specified in the Preliminary Statement.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506-1,631 (January 7, 2005))
or by the staff of the Commission, or as may be provided by the Commission or
its staff from time to time.
Relief Act Interest Shortfall: With respect to any Distribution Date
and any Mortgage Loan, any reduction in the amount of interest collectible on
such Mortgage Loan for the most recently ended Due Period as a result of the
application of the Servicemembers Civil Relief Act or any similar state
statutes.
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 Disposition: The final sale by the Servicer of any REO Property.
REO Property: A Mortgaged Property acquired by the Trust Fund
through foreclosure or deed-in-lieu of foreclosure in connection with a
defaulted Mortgage Loan.
Reportable Event: As defined in Section 8.15(e).
Representation Letter: The Side Letter, dated as of February 13,
2008, by and between Barclays Bank PLC and the Depositor, a copy of which is
attached hereto as Exhibit T.
Repurchase Price: With respect to any Mortgage Loan, an amount equal
to the sum of (i) the unpaid principal balance of such Mortgage Loan as of the
date of repurchase, (ii) interest on such unpaid principal balance of such
Mortgage Loan at the Mortgage Rate from the last date through which interest has
been paid to the date of repurchase, (iii) all unreimbursed Servicing Advances
and (iv) all expenses incurred by the Trustee arising out of the Trustee's
enforcement of the applicable Person's repurchase obligation under the IndyMac
Purchase Agreement or under the Representation Letter.
Request for Release: The Request for Release submitted by the Master
Servicer or the Servicer to the Custodian, substantially in the form of Exhibit
D.
Residual Certificates: As specified in the Preliminary Statement.
Responsible Officer: When used with respect to the Trustee or the
Securities Administrator, any officer in the corporate trust department or
similar group of the Trustee or the Securities Administrator with direct
responsibility for the administration of this Agreement and also, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of his or her knowledge of and familiarity with the particular
subject.
Reuters Page LIBOR01: The display page currently so designated on
the Reuters 3000 Xtra Service (or such other page as may replace that page on
that service for displaying comparable rates or prices).
Rule 144A Letter: As defined in Section 5.02(b).
Sarbanes Certification: As defined in Section 8.15(c).
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act: means the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the
rules and regulations of the Commission promulgated thereunder (including any
interpretations thereof by the Commission's staff).
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan
due on any Due Date allocable to principal and/or interest on such Mortgage Loan
which, unless otherwise specified herein, shall give effect to any related Debt
Service Reduction and any Deficient Valuation that affects the amount of the
monthly payment due on such Mortgage Loan.
Securities Act: The Securities Act of 1933, as amended.
Senior Optimal Principal Amount: With respect to any Distribution
Date, the lesser of:
(a) the sum of:
(1) the Senior Percentage of the principal portion, if any, of the
Scheduled Payments due on each Mortgage Loan on the related Due Date without
giving effect to any Deficient Valuation or Debt Service Reduction that occurred
prior to the reduction of the Bankruptcy Loss Coverage Amount to zero;
(2) the Senior Percentage of the Purchase Price of each Mortgage
Loan that was repurchased by the Original Loan Seller or another person with
respect to that Distribution Date;
(3) the Senior Percentage related to such Substitution Adjustment
Amounts in respect of a Mortgage Loan received with respect to that Distribution
Date;
(4) the Senior Percentage of the amount of net Insurance Proceeds or
net Liquidation Proceeds allocable to principal received in the prior calendar
month with respect to a Mortgage Loan that is not a Liquidated Loan;
(5) with respect to each Mortgage Loan that became a Liquidated Loan
during the prior calendar month, the lesser of:
(A) the Senior Percentage of the Stated Principal
Balance of that Mortgage Loan; and
(B) either (x) the Senior Prepayment Percentage or (y)
if an Excess Loss was sustained with respect to any Liquidated
Loan during the preceding calendar month, the Senior
Percentage, of the amount of the net Insurance Proceeds or net
Liquidation Proceeds allocable to principal received with
respect to that Mortgage Loan during the prior calendar month;
(6) the Senior Prepayment Percentage of the excess, if any, of:
(A) Principal Prepayments or other recoveries of
principal in respect of a Mortgage Loan (other than a
Liquidated Loan as specified in clause (5) above) received
during the related Principal Prepayment Period; over
(B) the aggregate amount of Deferred Interest accrued on
the Mortgage Loans from the previous Due Date to the Due Date
related to such Distribution Date;
(7) with respect to any Distribution Date prior to the Cross-Over
Date only, the Senior Prepayment Percentage of the Subsequent Recoveries
received during the related Principal Prepayment Period;
provided, however, that if a Deficient Valuation or Debt Service Reduction is
sustained with respect to a Mortgage Loan that is not a Liquidated Loan after
the Bankruptcy Loss Coverage Amount has been reduced to zero, the Senior Optimal
Principal Amount will be reduced on the related Distribution Date by the Senior
Percentage of the principal portion of such Deficient Valuation or Debt Service
Reduction; and
(b) the Principal Payment Amount for such Distribution Date, minus
Capitalized Advances reimbursed to the Servicer with respect to such
Distribution Date.
Senior Percentage: With respect to each Distribution Date, the
lesser of 100% and the percentage equivalent of a fraction, the numerator of
which is the aggregate Class Certificate Balance of all of the Senior
Certificates immediately prior to such Distribution Date, and the denominator of
which is the aggregate Stated Principal Balance of all Mortgage Loans for such
Distribution Date.
Senior Prepayment Percentage: With respect to any Distribution Date,
the percentage (not exceeding 100%) set forth in the following table:
Distribution Date Occurring Senior Prepayment Percentage
---------------------------------- -----------------------------------
February 2008 through January 2018 100%
February 2018 through January 2019 Senior Percentage plus 70% of the
Subordinate Percentage;
February 2019 through January 2020 Senior Percentage plus 60% of the
Subordinate Percentage;
February 2020 through January 2021 Senior Percentage plus 40% of the
Subordinate Percentage;
February 2021 through January 2022 Senior Percentage plus 20% of the
Subordinate Percentage; and
After January 2022 Senior Percentage
provided, however, that on any of the foregoing Distribution Dates if the Senior
Percentage exceeds the initial Senior Percentage, the Senior Prepayment
Percentage will once again equal 100%. The reductions in the Senior Prepayment
Percentages set forth above will not occur, unless, as of the last day of the
month preceding the Distribution Date, both:
(i) the aggregate Stated Principal Balance of Mortgage Loans
Delinquent 60 days or more (including for this purpose any of such
Mortgage Loans in bankruptcy or foreclosure, any REO Properties and
any Mortgage Loan that was modified during the 12-month period
following the most recent modification of such Mortgage Loan until
such Mortgage Loan becomes current under the terms of the Mortgage
Loan as modified) does not exceed 50% of the aggregate Class
Certificate Balances of the Subordinate Certificates as of that
date; and
(ii) cumulative Realized Losses with respect to the Mortgage
Loans do not exceed:
(A) 30% of the Original Subordinate Principal Balance if
such Distribution Date occurs between and including February
2018 and January 2019;
(B) 35% of the Original Subordinate Principal Balance if
such Distribution Date occurs between and including February
2019 and January 2020;
(C) 40% of the Original Subordinate Principal Balance if
such Distribution Date occurs between and including February
2020 and January 2021;
(D) 45% of the Original Subordinate Principal Balance if
such Distribution Date occurs between and including February
2021 and January 2022; and
(E) 50% of the Original Subordinate Principal Balance if
such Distribution Date occurs after January 2022.
Notwithstanding the foregoing and with respect to any Distribution
Date, if the following conditions are satisfied:
(iii) the then-current Subordinate Percentage is equal to or
greater than two times the initial Subordinate Percentage;
(iv) the aggregate Stated Principal Balance of Mortgage Loans
Delinquent 60 days or more (including for this purpose any of such
Mortgage Loans in bankruptcy or foreclosure, any REO Properties and
any Mortgage Loan that was modified during the 12-month period
following the most recent modification of such Mortgage Loan until
such Mortgage Loan becomes current under the terms of the Mortgage
Loan as modified) does not exceed 50% of the aggregate Class
Certificate Balances of the Subordinate Certificates as of that
date; and
(v) cumulative Realized Losses with respect to the Mortgage
Loans do not exceed:
(A) 20% of the Original Subordinate Principal Balance if
such Distribution Date occurs on or prior to January 2011, and
(B) 30% of the Original Subordinate Principal Balance if
such Distribution Date occurs after February 2011.
then the Senior Prepayment Percentage for such Distribution Date will be as set
forth in the following table:
Distribution Date Occurring Senior Prepayment Percentage
---------------------------------- ----------------------------------
February 2008 through January 2011 Senior Percentage plus 50% of the
Subordinate Percentage
After January 2011 Senior Percentage
Upon the reduction of a Senior Prepayment Percentage during one of
the periods set forth in the table above, such reduction will remain in effect
for the remainder of that period.
Servicer: IndyMac Bank, F.S.B. in its capacity as servicer under the
IndyMac Servicing Agreement and the Assignment Agreement, or any successor
servicer appointed pursuant thereto.
Servicer Remittance Date: 1:00 P.M. Eastern Standard Time on the
19th day (or if such 19th day is not a Business Day, the first Business Day
immediately following) of any month, as set forth in the IndyMac Assignment
Agreement under the definition of "Remittance Date."
Servicing Advances: As defined in the IndyMac Servicing Agreement.
Servicing Criteria: The "servicing criteria" set forth in Item
1122(d) of Regulation AB, which as of the Closing Date are listed on Exhibit O
hereto.
Servicing Fee: As defined in the IndyMac Servicing Agreement.
Servicing Fee Rate: With respect to each Mortgage Loan, the per
annum rate for such Mortgage Loan specified on the Mortgage Loan Schedule.
Servicing File: The "Credit File" as defined in the IndyMac
Servicing Agreement.
Servicing Function Participant: As defined in Section 8.14(a).
Similar Law: As defined in Section 5.02(b).
Special Hazard Coverage Termination Date: The point in time at which
the related Special Hazard Loss Coverage Amount is reduced to zero.
Special Hazard Loss Coverage Amount: Approximately $7,408,826 less,
on each Distribution Date, the sum of (1) the aggregate amount of Special Hazard
Losses that would have been previously allocated to the Subordinate Certificates
in the absence of the Loss Allocation Limitation and (2) the related Adjustment
Amount. As of any Distribution Date on or after the Cross-Over Date, the Special
Hazard Loss Coverage Amount will be zero.
Special Hazard Loss: Any Realized Loss attributable to damage or a
direct physical loss suffered by a Mortgaged Property, including any Realized
Loss due to the presence or suspected presence of any hazardous waste or
substance on a Mortgaged Property, other than any such damage or loss covered by
a hazard policy or a flood insurance policy required to be maintained in respect
of the Mortgaged Property under the IndyMac Servicing Agreement or any loss due
to normal wear and tear or certain other causes.
Special Hazard Mortgage Loan: A Liquidated Loan as to which a
Special Hazard Loss has occurred.
Standard & Poor's or S&P: Standard & Poor's Ratings Services, a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and its successors in interest. If
Standard & Poor's is designated as a Rating Agency in the Preliminary Statement,
for purposes of Section 12.05(c) the address for notices to Standard & Poor's
shall be Standard & Poor's, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Residential Mortgage Surveillance Group - BCAP LLC Trust 2008-IND1,
or such other address as Standard & Poor's may hereafter furnish to the Master
Servicer, the Securities Administrator, the Depositor, the Servicer and the
Trustee.
Startup Day: As defined in Section 2.04.
Stated Principal Balance: As to each Mortgage Loan and as of any
Determination Date, (i) the principal balance of the Mortgage Loan at the
Cut-off Date after giving effect to payments of principal due on or before such
date plus any Deferred Interest added to the balance of such Mortgage Loan,
minus (ii) all amounts previously remitted to the Securities Administrator with
respect to the related Mortgage Loan representing payments or recoveries of
principal including advances in respect of scheduled payments of principal. For
purposes of any Distribution Date, the Stated Principal Balance of any Mortgage
Loan will give effect to any scheduled payments of principal received or
advanced prior to the related Servicer Remittance Date and any unscheduled
principal payments and other unscheduled principal collections received during
the related Principal Prepayment Period and any Deferred Interest, and the
Stated Principal Balance of any Mortgage Loan that has prepaid in full or has
become a Liquidated Mortgage Loan during the related Principal Prepayment Period
shall be zero.
Subcontractor: Any third-party or Affiliated vendor, subcontractor
or other Person utilized by a Servicer, a Subservicer, the Master Servicer or
the Securities Administrator that is not responsible for the overall servicing
(as "servicing" is commonly understood by participants in the mortgage-backed
securities market) of Mortgage Loans but performs one or more discrete functions
identified in Item 1122(d) of Regulation AB with respect to Mortgage Loans.
Subordinate Certificates: As specified in the Preliminary Statement.
Subordinate Certificates Prepayment Distribution Trigger: With
respect to a Class of Subordinate Certificates and any Distribution Date, is
satisfied if either (i) the Fractional Interest for such Class for such date
equals or exceeds the Fractional Interest for such Class calculated as of the
date of issuance of the Certificates, or (ii) that Class of Subordinate
Certificates is the only Class of Subordinate Certificates then Outstanding.
Subordinate Certificate Writedown Amount: With respect to any
Distribution Date, the amount, if any, by which:
(i) the sum of the Class Certificate Balances of all of the
Certificates, after giving effect to the distribution of principal
and the allocation of Realized Losses in reduction of the Class
Certificate Balances of those Certificates on such Distribution
Date, exceeds
(ii) the aggregate Stated Principal Balances of the Mortgage
Loans for such Distribution Date.
Subordinate Optimal Principal Amount: With respect to any
Distribution Date, the lesser of:
(a) the sum of:
(1) the Subordinate Percentage of the principal portion, if any, of
the Scheduled Payments due on each Mortgage Loan on the related Due Date without
giving effect to any Deficient Valuation or Debt Service Reduction that occurred
prior to the reduction of the Bankruptcy Loss Coverage Amount to zero;
(2) the Subordinate Percentage of the principal portion of the
Purchase Price of each Mortgage Loan that was repurchased by the Original Loan
Seller or another Person with respect to that Distribution Date;
(3) the Subordinate Percentage related to any Substitution
Adjustment Amounts in respect of a Mortgage Loan received with respect to that
Distribution Date;
(4) the Subordinate Percentage of the amount of net Insurance
Proceeds or net Liquidation Proceeds allocable to principal received in the
prior calendar month with respect to a Mortgage Loan that is not a Liquidated
Loan;
(5) with respect to each Mortgage Loan that became a Liquidated Loan
during the prior calendar month, the portion of the amount of the net Insurance
Proceeds or net Liquidation Proceeds allocable to principal received with
respect to that Mortgage Loan during the prior calendar month that was not
included in clause (5) of the definition of "Senior Optimal Principal Amount"
for such Distribution Date; and
(6) the Subordinate Prepayment Percentage of the excess, if any, of:
(A) Principal Prepayments or other recoveries of
principal in respect of a Mortgage Loan (other than a
Liquidated Loan as specified in clause (5) above) received
during the related Principal Prepayment Period; over
(B) the aggregate amount of Deferred Interest accrued on
the Mortgage Loans from the previous Due Date to the Due Date
related to such Distribution Date; and
(7) with respect to any Distribution Date prior to the Cross-Over
Date only, the Subordinate Prepayment Percentage of the Subsequent Recoveries
received during the related Principal Prepayment Period;
provided, however, that if a Deficient Valuation or Debt Service Reduction is
sustained with respect to a Mortgage Loan that is not a Liquidated Loan after
the Bankruptcy Loss Coverage Amount has been reduced to zero, the Subordinate
Optimal Principal Amount will be reduced on the related Distribution Date by the
Subordinate Percentage of the principal portion of such Deficient Valuation or
Debt Service Reduction; and
(b) the Principal Payment Amount for such Distribution Date, minus
Capitalized Advances reimbursed to the Servicer with respect to such
Distribution Date.
Subordinate Percentage: With respect to any Distribution Date, the
difference between 100% and the Senior Percentage on such Distribution Date.
Subordinate Prepayment Percentage: With respect to any Distribution
Date, the difference between 100% and the Senior Prepayment Percentage on such
Distribution Date.
Subsequent Recoveries: With respect to any Distribution Date and any
Mortgage Loan, an amount, net of any reimbursable expenses, received in respect
of principal on that Mortgage Loan during the related Principal Prepayment
Period that has previously been allocated as a Realized Loss to a Class of
Certificates.
Subservicer: Any Person that services Mortgage Loans on behalf of
the Servicer or any Subservicer and is responsible for the performance (whether
directly or through Subservicers or Subcontractors) of a substantial portion of
the material servicing functions required to be performed by the Servicer under
this Agreement, with respect to some or all of the Mortgage Loans, that are
identified in Item 1122(d) of Regulation AB.
Substitution Adjustment Amount: With respect to the IndyMac Purchase
Agreement or with respect to a Mortgage Loan substituted by the Purchaser, an
amount of cash received from the Original Loan Seller in connection with a
substitution for a Deleted Mortgage Loan.
Tax Matters Person: The Holder of the Class A-R Certificates is
designated as "tax matters person" of the Lower Tier REMIC and the Upper Tier
REMIC, in the manner provided under Treasury Regulations Section 1.860F-4(d) and
Treasury Regulations Section 301.6231(a)(7)-1.
10-K Filing Deadline: As defined in Section 8.15(c).
Termination Price: As defined in Section 11.01.
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
Transfer Affidavit: As defined in Section 5.02(c).
Transferor Certificate: As defined in Section 5.02(b).
Trust: The express trust created hereunder in Section 2.01(c).
Trust Fund: The corpus of the trust created hereunder consisting of
(i) the Mortgage Loans and all interest and principal received on or with
respect thereto after the related Cut-off Date, other than such amounts which
were due on the Mortgage Loans on or before the related Cut-off Date; (ii) each
Account, and all amounts deposited therein pursuant to the applicable provisions
of this Agreement; (iii) property that secured a Mortgage Loan and has been
acquired by foreclosure, deed-in-lieu of foreclosure or otherwise; (iv) the
rights of the Trust under the IndyMac Agreements; (v) all proceeds of the
conversion, voluntary or involuntary, of any of the foregoing; (vi) the Initial
Distribution Interest Adjustment Amount; and (vii) the Representation Letter.
Trust REMIC: Either of the Lower Tier REMIC or the Upper Tier REMIC,
as applicable.
Trustee: HSBC Bank USA, National Association, a national banking
association, and its successors in interest and, if a successor trustee is
appointed hereunder, such successor.
Underwriters' Exemption: Any exemption listed in footnote 1 of, and
amended by, Prohibited Transaction Exemption 2002-41, 67 Fed. Reg. 54487 (2002),
or amended by Prohibited Transaction Exemption 2002-19, 67 Fed. Reg. 14979, or
any successor exemption.
Upper Tier REMIC: As set forth in the Preliminary Statement.
Upper Tier REMIC Interest Rate: As set forth in the Preliminary
Statement.
Upper Tier REMIC Interest: Any Upper Tier REMIC Regular Interest or
the Class UT-AR Interest.
Upper Tier REMIC Regular Interest: As set forth in the Preliminary
Statement.
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 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 prior to such date, may elect to continue to
be U.S. Persons.
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to the Class A-X
Certificates, if any (such Voting Rights to be allocated among the holders of
Certificates of such Class in accordance with their respective Percentage
Interests), (b) 1% of all Voting Rights shall be allocated to the Class A-R
Certificates, if any (such Voting Rights to be allocated among the holders of
Certificates of such Class in accordance with their respective Percentage
Interests), (c) 1% of all Voting Rights shall be allocated to the Class P
Certificates, if any (such Voting Rights to be allocated among the holders of
Certificates of such Class in accordance with their respective Percentage
Interests), (d) 1% of all Voting Rights shall be allocated to the Class L
Certificates, if any (such Voting Rights to be allocated among the holders of
Certificates of such Class in accordance with their respective Percentage
Interests), and (c) the remaining Voting Rights shall be allocated among Holders
of the remaining Classes of Certificates in proportion to the Class Certificate
Balances of their respective Certificates on such date.
WAC Cap: As of any Distribution Date, a per annum rate equal to the
weighted average of the Net Mortgage Interest Rates then in effect on the
beginning of the related Due Period on the Mortgage Loans; provided, that in the
case of the first Distribution Date, the WAC Cap shall be calculated taking into
account the Initial Distribution Interest Adjustment Amount, as if such amount
were additional interest collected on the Mortgage Loans during the related Due
Period.
WHFIT: A "Widely Held Fixed Investment Trust" as that term is
defined in Treasury Regulations Section 1.671-5(b)(22) or successor provisions.
WHFIT Regulations: Treasury Regulations Section 1.671-5, as amended.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans. (a) The Depositor,
concurrently with the execution and delivery hereof, hereby sells, transfers,
assigns, sets over and otherwise conveys to the Trustee for the benefit of the
Certificateholders, without recourse, all the right, title and interest of the
Depositor in and to the Trust Fund, and the Trustee, on behalf of the Trust,
hereby accepts the Trust Fund.
(b) In connection with the transfer and assignment of each Mortgage
Loan, the Depositor has delivered or caused to be delivered to the Custodian 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 without recourse in blank
by the last endorsee, including all intervening endorsements showing a
complete chain of endorsement from the originator to the last endorsee;
(ii) the original Assignment of Mortgage in blank (except if
recorded), unless the Mortgage Loan is a MERS Mortgage Loan;
(iii) the related original Mortgage and evidence of its recording
or, in certain limited circumstances, a certified copy of the mortgage
with evidence of recording;
(iv) except with respect to a MERS Loan, originals of any
intervening Mortgage assignment or certified copies in either case
evidencing recording;
(v) originals of all assumption or modification agreements or
certified copies thereof, in either case with evidence of recording
thereon;
(vi) an original or copy of a title insurance policy or, in the
event such title policy is unavailable, a certified true copy of the
related policy binder or commitment for title certified to be true and
complete by the title insurance company, Original Loan Seller or escrow
company;
(vii) to the extent applicable, an original or copy of a power of
attorney; and
(viii) the original or, if unavailable, a copy of a security
agreement, chattel mortgage or equivalent document executed in connection
with the Mortgage, if any.
The Depositor shall deliver to the Custodian the applicable recorded
document promptly upon receipt from the respective recording office but in no
event later than 120 days from the Closing Date.
From time to time, the Original Loan Seller (pursuant to the IndyMac
Purchase Agreement), the Depositor or the Servicer (pursuant to the IndyMac
Servicing Agreement), as applicable, shall forward to the Custodian additional
original documents and additional documents evidencing an assumption,
modification, consolidation or extension of a Mortgage Loan, in accordance with
the terms of the IndyMac Purchase Agreement upon receipt of such documents. All
such mortgage documents held by the Custodian as to each Mortgage Loan shall
constitute the "Custodial File."
On or prior to the Closing Date, the Depositor shall deliver to the
Custodian Assignments of Mortgages (except in the case of MERS Loans), in blank,
for each applicable Mortgage Loan.
To the extent not previously delivered to the Purchaser pursuant to
the IndyMac Purchase Agreement, on or prior to the Closing Date, the Original
Loan Seller shall deliver to the Custodian, Assignments of Mortgages, in blank,
for each Mortgage Loan that is not a MERS Loan. Pursuant to the IndyMac
Assignment Agreement, no later than thirty (30) Business Days following the
later of the Closing Date and the date of receipt by the Servicer of the
complete recording information for a Mortgage, the Servicer shall promptly
submit or cause to be submitted for recording, at the expense of the Original
Loan Seller and at no expense to the Trust Fund, the Trustee, the Servicer, the
Custodian, the Master Servicer, the Securities Administrator or the Depositor,
in the appropriate public office for real property records, each Assignment of
Mortgage referred to in Section 2.01(b)(ii). Notwithstanding the foregoing,
however, for administrative convenience and facilitation of servicing and to
reduce closing costs, pursuant to the IndyMac Assignment Agreement, the
Assignments of Mortgage shall not be required to be completed and submitted for
recording with respect to any Mortgage Loan (i) if the Trustee and each Rating
Agency have received an Opinion of Counsel, satisfactory to the Trustee and each
Rating Agency to the effect that the recordation of such Assignments of Mortgage
in any specific jurisdiction is not necessary to protect the Trustee's interest
in the related Mortgage Note, (ii) if such Mortgage Loan is a MERS Loan or (iii)
if the Rating Agencies have each notified the Depositor and the Servicer in
writing that not recording any such Assignments of Mortgage would not cause the
initial ratings on any Certificates to be downgraded or withdrawn; provided,
however, that the Servicer shall not be held responsible or liable for any loss
that occurs because an Assignment of Mortgage was not recorded, but only to the
extent the Servicer does not have prior knowledge of the act or omission that
causes such loss. Unless the Depositor gives the Servicer notice to the
contrary, the Depositor is deemed to have given the Servicer notice that the
condition set forth in clause (iii) above is applicable. In addition to the
foregoing and pursuant to the IndyMac Assignment Agreement, the Servicer shall
cause each Assignment of Mortgage to be recorded in accordance with Accepted
Servicing Practices in order to convey, upon foreclosure, the title of any
Mortgaged Property to the Trust. If the Assignment of Mortgage is to be
recorded, the applicable Mortgage shall be assigned by the Original Loan Seller,
pursuant to the IndyMac Assignment Agreement, at the expense of the Original
Loan Seller to "HSBC Bank USA, National Association, as trustee under the
Pooling and Servicing Agreement dated as of January 1, 2008, BCAP LLC Trust
2008-IND1." In the event that any such Assignment of Mortgage is lost or
returned unrecorded because of a defect therein, pursuant to the IndyMac
Assignment Agreement, the Original Loan Seller shall promptly cause to be
delivered a substitute Assignment of Mortgage to cure such defect and thereafter
cause each such assignment to be duly recorded at no expense to the Trust Fund.
In the event that such original or copy of any document submitted
for recordation to the appropriate public recording office is not so delivered
to the Custodian within the time period and in the manner specified in the
IndyMac Purchase Agreement (which is 90 days following the Closing Date (other
than with respect to the Assignments of Mortgage)), upon receipt of actual
knowledge the Trustee shall take or cause to be taken such remedial actions
under the IndyMac Purchase Agreement against the Original Loan Seller as may be
permitted to be taken thereunder, including, without limitation, if applicable,
the repurchase by the Original Loan Seller of such Mortgage Loan. The foregoing
repurchase remedy shall not apply in the event that the Original Loan Seller
cannot deliver such original or copy of any document submitted for recordation
to the appropriate public recording office within the specified period due to a
delay caused by the recording office in the applicable jurisdiction; provided,
that the Original Loan Seller shall instead deliver a recording receipt of such
recording office or, if such recording receipt is not available, an officer's
certificate of an officer of the Original Loan Seller, confirming that such
document has been accepted for recording.
Notwithstanding anything to the contrary contained in this Section
2.01, in those instances where the public recording office retains or loses the
original Mortgage or assignment after it has been recorded, the obligations of
the Original Loan Seller shall be deemed to have been satisfied upon delivery by
the Original Loan Seller to the Custodian, prior to the Closing Date of a copy
of such Mortgage or assignment, as the case may be, certified (such
certification to be an original thereof) by the public recording office to be a
true and complete copy of the recorded original thereof.
(c) The Depositor does hereby establish, pursuant to the further
provisions of this Agreement and the laws of the State of New York, an express
trust (the "Trust") to be known, for convenience, as "BCAP Trust LLC 2008-IND1"
and HSBC Bank USA, National Association is hereby appointed as Trustee in
accordance with the provisions of this Agreement. The parties hereto acknowledge
and agree that it is the policy and intention of the Trust to acquire only
Mortgage Loans meeting the requirements set forth in this Agreement and in the
IndyMac Assignment Agreement, including without limitation, the representation
and warranty set forth in paragraphs (32), (38) and (39) of Exhibit E of the
IndyMac Assignment Agreement. The Trust's fiscal year is the calendar year.
(d) The Trust shall have the capacity, power and authority, and the
Trustee on behalf of the Trust is hereby authorized, to accept the sale,
transfer, assignment, set over and conveyance by the Depositor to the Trust of
all the right, title and interest of the Depositor in and to the Trust Fund
(including, without limitation, the Mortgage Loans) pursuant to Section 2.01(a).
(e) Notwithstanding anything to the contrary contained herein, the
parties hereto acknowledge that the functions of the Trustee with respect to the
custody, acceptance, inspection and release of Custodial Files, including but
not limited to certain insurance policies and documents contemplated by this
Agreement, and preparation and delivery of the certifications, shall be
performed by the Custodian.
Section 2.02 Acceptance by the Custodian of the Mortgage Loans. The
Custodian shall acknowledge on the Closing Date receipt by it on behalf of the
Trustee of the documents identified in the Initial Certification in the form
annexed hereto as Exhibit E ("Initial Certification"), and shall declare that it
holds and will hold such documents and the other documents delivered to it
pursuant to Section 2.01, 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 Custodian shall maintain
possession of the related Mortgage Notes in the State of California, unless
otherwise permitted by the Rating Agencies.
Prior to and as a condition to the closing, the Custodian shall
deliver via facsimile (with original to follow the next Business Day) to the
Depositor an Initial Certification certifying receipt of a Mortgage Note and
Assignment of Mortgage for each Mortgage Loan as provided below. The Custodian
shall not be responsible to verify the validity, sufficiency or genuineness of
any document in any Custodial File.
On the Closing Date, the Custodian shall ascertain that all
documents required to be reviewed by it are in its possession and shall deliver
to the Depositor, the Servicer, the Trustee, the Securities Administrator and
the Master Servicer an Initial Certification, in the form annexed hereto as
Exhibit E, and shall deliver to the Depositor, the Servicer, the Trustee, the
Securities Administrator and the Master Servicer a Document Certification and
Exception Report, in the form annexed hereto as Exhibit F, within 90 days after
the Closing Date to the effect that, as to each applicable Mortgage Loan listed
in the Mortgage Loan Schedule (other than any Mortgage Loan paid in full or any
Mortgage Loan specifically identified in such certification as an exception and
not covered by such certification): (i) all documents required to be reviewed by
it are in its possession; (ii) such documents have been reviewed by it and
appear regular on their face and relate to such Mortgage Loan; (iii) based on
its examination and only as to the foregoing documents, the information set
forth in items (1), (2), (8), (32) and (34) of the Mortgage Loan Schedule
respecting such Mortgage Loan is correct; and each Mortgage Note has been
endorsed as provided in Section 2.01 of this Agreement. The Custodian shall not
be responsible to verify the validity, sufficiency or genuineness of any
document in any Custodial File.
The Custodian shall retain possession and custody of each applicable
Custodial File in accordance with and subject to the terms and conditions set
forth herein. The Servicer shall promptly deliver to the Custodian, upon the
execution or receipt thereof, the originals of such other documents or
instruments constituting the Custodial File as come into the possession of the
Servicer from time to time.
The Trustee shall enforce the obligation of the Original Loan Seller
to cure or repurchase Mortgage Loans that do not conform to the requirements of
Sections 2.01 and 2.02 as determined in the Custodian's review as required
herein by notifying the Original Loan Seller to correct or cure such default.
The Trustee shall also enforce the obligation of the Original Loan Seller under
the IndyMac Purchase Agreement to cure or repurchase Mortgage Loans for which
there is a defect or a breach of a representation or warranty thereunder of
which a Responsible Officer of the Trustee has actual knowledge, by notifying
the applicable party to correct or cure such default. If the Servicer or the
Original Loan Seller, as the case may be, fails or is unable to correct or cure
the defect or breach within the period set forth in the applicable agreement,
upon receipt of actual knowledge of such failure the Trustee shall notify the
Depositor of such failure to correct or cure. Unless otherwise directed by the
Depositor within five (5) Business Days after notifying the Depositor of such
failure by the applicable party to correct or cure, the Trustee shall notify the
Depositor and the Depositor will cause the Original Loan Seller to repurchase
the Mortgage Loan. If, within ten (10) Business Days of receipt of such notice
by such party, such party fails to repurchase such Mortgage Loan, the Trustee
shall notify the Depositor of such failure. The Trustee shall pursue all legal
remedies available to the Trustee, on behalf of the Trust, against the Servicer,
the Original Loan Seller and the Purchaser, as applicable, under this Agreement,
the IndyMac Purchase Agreement or the IndyMac Servicing Agreement, as
applicable, if the Trustee has received written notice from the Depositor
directing the Trustee to pursue such remedies. The Trustee will be reimbursed by
the Trust for all costs and expenses incurred by it in enforcing such legal
remedies.
Upon receipt of an executed Request for Release (which Request for
Release shall include a statement to the effect that all amounts received or to
be received in connection with such payment which are required to be deposited
in the Collection Account pursuant to Section 3.10 have been or will be so
deposited) signed by an officer of the Master Servicer or the Servicer, as
applicable, the Custodian shall promptly release the related Custodial File to
the Master Servicer or the Servicer, as applicable, within three (3) Business
Days. No expenses incurred in connection with any instrument of satisfaction or
deed of reconveyance shall be chargeable to the Collection Account unless such
expenses constitute Servicing Advances. In addition, for purposes of servicing
the Mortgage Loans, upon receipt of any executed Request for Release signed by
an officer of the Servicer, the Custodian shall promptly release the related
Custodial File to the Servicer within three (3) Business Days (or with respect
to any Request for Release that relates to more than 100 Custodial Files, five
(5) Business Days).
Section 2.03 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, the Securities Administrator 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 2.04 REMIC Matters. The Preliminary Statement sets forth the
designations for federal income tax purposes of all interests created hereby.
The "Startup Day" of each Trust REMIC for purposes of the REMIC Provisions shall
be the Closing Date. The "latest possible maturity date" of the regular
interests in each Trust REMIC is the Distribution Date occurring in October
2047, which is the Distribution Date in the month following the month in which
the latest maturity date of any Mortgage Loan occurs.
Section 2.05 Representations and Warranties of the Depositor. The
Depositor hereby represents, warrants and covenants to the Master Servicer, the
Securities Administrator, the Custodian and the Trustee that as of the date of
this Agreement or as of such date specifically provided herein:
(a) The Depositor is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of Delaware;
(b) The Depositor has the power and authority to convey the Mortgage
Loans and to execute, deliver and perform, and to enter into and consummate
transactions contemplated by, this Agreement;
(c) This Agreement has been duly and validly authorized, executed
and delivered by the Depositor, all requisite company action having been taken,
and, assuming the due authorization, execution and delivery hereof by the other
parties hereto, constitutes or will constitute the legal, valid and binding
agreement of the Depositor, enforceable against the Depositor in accordance with
its terms, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
rights of creditors generally, and by general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at law);
(d) No consent, approval, authorization or order of, or registration
or filing with, or notice to, any governmental authority or court is required
for the execution, delivery and performance of or compliance by the Depositor
with this Agreement or the consummation by the Depositor of any of the
transactions contemplated hereby, except as have been received or obtained on or
prior to the Closing Date;
(e) None of the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby or thereby, or the
fulfillment of or compliance with the terms and conditions of this Agreement,
(i) conflicts or will conflict with or results or will result in a breach of, or
constitutes or will constitute a default or results or will result in an
acceleration under (A) the certificate of formation or limited liability company
agreement of the Depositor, or (B) of any term, condition or provision of any
material indenture, deed of trust, contract or other agreement or instrument to
which the Depositor or any of its subsidiaries is a party or by which it or any
of its subsidiaries is bound; (ii) results or will result in a violation of any
law, rule, regulation, order, judgment or decree applicable to the Depositor of
any court or governmental authority having jurisdiction over the Depositor or
its subsidiaries; or (iii) results in the creation or imposition of any lien,
charge or encumbrance which would have a material adverse effect upon the
Mortgage Loans or any documents or instruments evidencing or securing the
Mortgage Loans;
(f) There are no actions, suits or proceedings before or against or
investigations of, the Depositor pending, or to the knowledge of the Depositor,
threatened, before any court, administrative agency or other tribunal, and no
notice of any such action, which, in the Depositor's reasonable judgment, might
materially and adversely affect the performance by the Depositor of its
obligations under this Agreement, or the validity or enforceability of this
Agreement;
(g) The Depositor is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency that would materially and adversely affect its
performance hereunder; and
(h) Immediately prior to the transfer and assignment by the
Depositor to the Trustee on the Closing Date, the Depositor had good title to,
and was the sole owner of each Mortgage Loan, free of any interest of any other
Person, and the Depositor has transferred all right, title and interest in each
Mortgage Loan to the Trustee. The transfer of the Mortgage Note and the Mortgage
as and in the manner contemplated by this Agreement is sufficient either (i)
fully to transfer to the Trustee, for the benefit of the Certificateholders, all
right, title, and interest of the Depositor thereto as note holder and mortgagee
or (ii) to grant to the Trustee, for the benefit of the Certificateholders, the
security interest referred to in Section 12.04.
It is understood and agreed that the representations, warranties and
covenants set forth in this Section 2.05 shall survive delivery of the
respective Custodial Files to the Custodian, and shall inure to the benefit of
the Certificateholders.
Section 2.06 Representations and Warranties of the Trustee. The
Trustee hereby represents and warrants to the Depositor, the Master Servicer,
the Securities Administrator and the Custodian, as of the Closing Date:
(a) The Trustee has been duly incorporated and is validly existing
as a national banking association and is duly qualified to do business and in
good standing under the laws of each jurisdiction in which the performance of
its duties under this Agreement would require such qualification and has the
requisite power and authority to execute, deliver and perform its obligations
under this Agreement.
(b) The Trustee has the full power and authority to execute, deliver
and perform, and to enter into and consummate the transactions contemplated by
this Agreement and has duly authorized by all necessary action on the part of
the Trustee the execution, delivery and performance of this Agreement; and this
Agreement, assuming the due authorization, execution and delivery thereof by the
other parties thereto, constitutes a legal, valid and binding obligation of the
Trustee, enforceable against the Trustee in accordance with its terms, except
that (i) the enforceability hereof may be limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws relating to creditors' rights
generally and (ii) 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.
(c) The execution and delivery of this Agreement by the Trustee, the
consummation of any other of the transactions contemplated by this Agreement,
and the fulfillment of or compliance with the terms thereof are in the ordinary
course of business of the Trustee and will not (i) result in a material breach
of any term or provision of the articles of incorporation or bylaws of the
Trustee, (ii) materially conflict with, result in a material breach, violation
or acceleration of, or result in a material default under, the terms of any
other material agreement or instrument to which the Trustee is a party or by
which it may be bound, or (iii) constitute a material violation of any statute,
order or regulation applicable to the Trustee of any court, regulatory body,
administrative agency or governmental body having jurisdiction over the Trustee;
and the Trustee is not in breach or violation of any material indenture or other
material agreement or instrument, or in violation of any statute, order or
regulation of any court, regulatory body, administrative agency or governmental
body having jurisdiction over it which breach or violation may materially impair
the Trustee's ability to perform or meet any of its obligations under this
Agreement.
(d) No litigation is pending or threatened against the Trustee that
would materially and adversely affect the execution, delivery or enforceability
of this Agreement or the ability of the Trustee to perform any of its
obligations under this Agreement in accordance with the terms thereof. For
purposes of the foregoing, the Trustee does not regard any actions, proceedings
or investigations "threatened" unless the potential litigants or governmental
authority has manifested to a member of the Trustee's Legal Department having
responsibility for litigation matters involving the corporate trust activities
of the Trustee its present intention to initiate such proceedings.
(e) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Trustee of, or compliance by the Trustee with, this Agreement
or the consummation of the transactions contemplated thereby, or if any such
consent, approval, authorization or order is required, the Trustee has obtained
the same.
Section 2.07 Representations and Warranties of the Custodian. The
Custodian hereby represents and warrants to the Depositor, the Master Servicer,
the Securities Administrator and the Trustee, as of the Closing Date:
(a) The Custodian is duly organized and is validly existing and in
good standing under the laws of its jurisdiction of incorporation and is duly
authorized and qualified to transact any and all business contemplated by this
Agreement to be conducted by the Custodian 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
perform any of its obligations under this Agreement in accordance with the terms
thereof.
(b) The Custodian has the full power and authority to execute,
deliver and perform, and to enter into and consummate the transactions
contemplated by this Agreement and has duly authorized by all necessary action
on the part of the Custodian the execution, delivery and performance of this
Agreement; and this Agreement, assuming the due authorization, execution and
delivery thereof by the other parties thereto, constitutes a legal, valid and
binding obligation of the Custodian, enforceable against the Custodian in
accordance with its terms, except that (i) the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium, receivership and other similar
laws relating to creditors' rights generally and (ii) 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.
(c) The execution and delivery of this Agreement by the Custodian,
the consummation of any other of the transactions contemplated by this
Agreement, and the fulfillment of or compliance with the terms thereof are in
the ordinary course of business of the Custodian and will not result in a
material breach of any term or provision of the articles of association or
bylaws of the Custodian.
ARTICLE III
TRUST ACCOUNTS
Section 3.01 Distribution Account and Carryover Shortfall Reserve
Fund Account. (a) The Securities Administrator shall establish and maintain the
Carryover Shortfall Reserve Fund Account, on behalf of the Class A-X
Certificateholders, to receive amounts in respect to any Carryover Shortfall
Amounts and to secure their limited recourse obligation to pay to the
Certificateholders any Carryover Shortfall Amounts. For the avoidance of doubt,
any Carryover Shortfall Amounts shall be paid to the applicable Principal
Certificates from the amounts representing Accrued Certificate Interest
otherwise distributable to the Class A-X Certificates pursuant to Section 4.01,
but instead deposited into the Carryover Shortfall Fund Account pursuant to
Section 4.04. On each Distribution Date, the Securities Administrator shall
deposit amounts representing Accrued Certificate Interest with respect of the
Class A-X Certificates received in respect of any Carryover Shortfall Amounts
for such date into the Carryover Shortfall Reserve Fund Account. The Carryover
Shortfall Fund Account shall be a non-interest bearing account.
The Securities Administrator shall account for the Carryover
Shortfall Reserve Fund Account as an asset of a grantor trust under subpart E,
Part I of subchapter J of the Code and not as an asset of either Trust REMIC
created pursuant to this Agreement. The beneficial owners of the Carryover
Shortfall Reserve Fund Account are the Class A-X Certificateholders. For all
federal income tax purposes, amounts transferred by the Upper Tier REMIC to the
Carryover Shortfall Reserve Fund Account shall be treated as distributions by
the Securities Administrator on behalf of the Trust to the Class A-X
Certificateholders in respect of the Class A-X Interest and then contributed by
the Class A-X Certificateholders to the Carryover Shortfall Reserve Fund
Account.
Any Carryover Shortfall Amounts distributed by the Securities
Administrator to the Principal Certificateholders from the Carryover Shortfall
Reserve Fund Account shall be accounted for by the Securities Administrator, for
federal income tax purposes, as amounts paid first to the Holders of the Class
A-X Certificates (in respect of the Class A-X Interest) and then to the
respective Class or Classes of Principal Certificates. In addition, the
Securities Administrator shall account for the Principal Certificateholders'
rights to receive payments of Carryover Shortfall Amounts from the Carryover
Shortfall Reserve Fund Account. Funds in the Carryover Shortfall Reserve Fund
Account shall remain uninvested.
Notwithstanding any provision contained in this Agreement, the
Securities Administrator shall not be required to make any distributions from
the Carryover Shortfall Reserve Fund Account except as expressly set forth in
Section 4.04.
(b) The Securities Administrator shall establish and maintain the
Distribution Account on behalf of the Certificateholders, which shall be a
non-interest bearing trust account. The Securities Administrator shall, promptly
upon receipt on the Business Day received, deposit in the Distribution Account
and retain therein the following:
(i) the aggregate amount remitted by the Servicer to the Securities
Administrator pursuant to the IndyMac Servicing Agreement; and
(ii) any other amounts deposited hereunder which are required to be
deposited in the Distribution Account , including in connection with the
first Distribution Date, the Initial Distribution Interest Adjustment
Amount.
In the event that the Servicer shall remit any amount not required
to be remitted pursuant to the IndyMac Servicing Agreement, and the Servicer
pursuant to an Officer's Certificate directs the Securities Administrator in
writing to withdraw such amount from the Distribution Account, the Securities
Administrator shall return such funds to the Servicer. All funds deposited in
the Distribution Account shall be held by the Securities Administrator in trust
for the Certificateholders until disbursed in accordance with this Agreement or
withdrawn in accordance with Section 4.01.
Section 3.02 Investment of Funds in the Distribution Account. (a)
The Securities Administrator may (but shall not be obligated to) invest funds in
the Distribution Account for its benefit (for purposes of this Section 3.02,
such Account is referred to as an "Investment Account"), in one or more
Permitted Investments bearing interest or sold at a discount, and maturing,
unless payable on demand or maturing on such Distribution Date, in the case of
an investment that is an obligation of the Securities Administrator, no later
than the Business Day immediately preceding the date on which such funds are
required to be withdrawn from such account pursuant to this Agreement. All such
Permitted Investments shall be held to maturity, unless payable on demand. Any
investment of funds in an Investment Account shall be made in the name of the
Securities Administrator. The Securities Administrator shall be entitled to sole
possession over each such investment, and any certificate or other instrument
evidencing any such investment shall be delivered directly to the Securities
Administrator or its agent, together with any document of transfer necessary to
transfer title to such investment to the Securities Administrator. In the event
amounts on deposit in an Investment Account are at any time invested in a
Permitted Investment payable on demand, the Securities Administrator may:
(x) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an
amount equal to the lesser of (1) all amounts then payable
thereunder and (2) the amount required to be withdrawn on such
date; and
(y) demand payment of all amounts due thereunder to the extent
that such Permitted Investment would not constitute a
Permitted Investment in respect of funds thereafter on deposit
in the Investment Account.
(b) All income and gain realized from the investment of funds
deposited in the Distribution Account held by the Securities Administrator shall
be subject to the Securities Administrator's withdrawal in the manner set forth
in Section 10.05.
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Securities Administrator shall take such action as may be
appropriate to enforce such payment or performance, including the institution
and prosecution of appropriate proceedings. Notwithstanding the foregoing, the
Securities Administrator shall be liable to the Trust for any such loss on any
funds it has invested under this Section 3.02, and the Securities Administrator
shall deposit funds in the amount of such loss in the Distribution Account
promptly after such loss is incurred.
(d) The Securities Administrator or its Affiliates are permitted to
receive additional compensation that could be deemed to be in the Securities
Administrator's economic self-interest for (i) serving as investment adviser,
administrator, shareholder, servicing agent, custodian or sub-custodian with
respect to certain of the Permitted Investments, (ii) using Affiliates to effect
transactions in certain Permitted Investments and (iii) effecting transactions
in certain Permitted Investments. Such compensation is not payable or
reimbursable under Section 8.06 of this Agreement.
(e) In order to comply with its duties under the USA Patriot Act of
2001, the Securities Administrator shall obtain and verify certain information
and documentation from certain other parties to this Agreement including, but
not limited to, each such party's name, address and other identifying
information.
(f) On or prior to each Distribution Date, the Custodian shall
deliver an invoice to the Master Servicer (which may be provided
electronically), setting forth the amount of the Custodian Fee for the related
Distribution Date. The Master Servicer shall remit the Custodian Fee to the
Custodian payable out of the compensation payable hereunder to the Master
Servicer.
ARTICLE IV
DISTRIBUTIONS
Section 4.01 Priorities of Distribution. (a) On each Distribution
Date, the Securities Administrator will make the disbursements and transfers
from amounts then on deposit in the Distribution Account in the following order
of priority and to the extent of the Available Funds remaining and, on such
Distribution Date, shall make distributions on the Certificates in accordance
with such allocation:
first, concurrently, from the Available Funds, to the Class A-1,
Class A-2, Class A-3 and Class A-R Certificates and the IO Components, pro rata,
the applicable Accrued Certificate Interest for that Distribution Date;
provided, however, that all or a portion of the distribution of Accrued
Certificate Interest to which an IO Component is otherwise entitled (after
allocation of Net Deferred Interest) in an amount up to the Carryover Shortfall
Amount, if any, for such Distribution Date, will first be deposited into the
Carryover Shortfall Reserve Fund and will not be distributed to the Class A-X
Certificates except as set forth below under Section 4.04;
second, concurrently, from the remaining Available Funds, the Senior
Optimal Principal Amount for that Distribution Date, sequentially, as follows,
(a) to the Class A-R Certificates until the Class Certificate Balance of such
Class has been reduced to zero, and (b) to the Class A-1, Class A-2 and Class
A-3 Certificates and the PO Components, pro rata, until the Class Certificate
Balance of each such Class has been reduced to zero;
third, from the remaining Available Funds, to the Class B-1
Certificates in the following order: (1) the Accrued Certificate Interest on the
Class B-1 Certificates for that Distribution Date and (2) the Class B-1
Certificates' Allocable Share for that Distribution Date;
fourth, from the remaining Available Funds, to the Class B-2
Certificates in the following order: (1) the Accrued Certificate Interest on the
Class B-2 Certificates for that Distribution Date and (2) the Class B-2
Certificates' Allocable Share for that Distribution Date;
fifth, from the remaining Available Funds, to the Class B-3
Certificates in the following order: (1) the Accrued Certificate Interest on the
Class B-3 Certificates for that Distribution Date and (2) the Class B-3
Certificates' Allocable Share for that Distribution Date;
sixth, from the remaining Available Funds, to the Class B-4
Certificates in the following order: (1) the Accrued Certificate Interest on the
Class B-4 Certificates for that Distribution Date and (2) the Class B-4
Certificates' Allocable Share for that Distribution Date;
seventh, from the remaining Available Funds, to the Class B-5
Certificates in the following order: (1) the Accrued Certificate Interest on the
Class B-5 Certificates for that Distribution Date and (2) the Class B-5
Certificates' Allocable Share for that Distribution Date;
eighth, from the remaining Available Funds, to the Class B-6
Certificates in the following order: (1) the Accrued Certificate Interest on the
Class B-6 Certificates for that Distribution Date and (2) the Class B-6
Certificates' Allocable Share for that Distribution Date; and
ninth, to the Class A-R Certificates, any remaining portion of the
Available Funds in each Trust REMIC for that Distribution Date.
Amounts distributable to the IO Components and the PO Components
pursuant to this Section 4.01(a) shall, subject to Section 4.04, be distributed
to the Class A-X Certificates.
Pro rata distributions of interest among Classes of Certificates and
Components are required to be made in proportion to the then current amount of
interest to which the applicable Classes are entitled. Pro rata distributions of
principal among Classes of Certificates and Components are required to be made
in proportion to the then-current Certificate Principal Balance or Components of
the applicable Classes.
(b) On each Distribution Date, all amounts in the Distribution
Account for such Distribution Date representing Prepayment Premiums from the
Mortgage Loans received during the related Principal Prepayment Period, as
identified by the Servicer to the Securities Administrator pursuant to the
IndyMac Assignment Agreement, shall be distributed by the Securities
Administrator to the holders of the Class P Certificates.
(c) On each Distribution Date, all amounts in the Distribution
Account for such Distribution Date representing late payment fees from the
Mortgage Loans received during the related Due Period, as identified by the
Servicer to the Securities Administrator, shall be distributed by the Securities
Administrator to the holders of the Class L Certificates.
Section 4.02 Subordination (a) On each Distribution Date, the amount
referred to in clause (1) of the definition of Accrued Certificate Interest
(without any reduction referred to therein) for each Class of Senior
Certificates and Subordinate Certificates for such Distribution Date shall be
reduced by (i) the related Class's pro rata share of Net Prepayment Interest
Shortfalls with respect to the Mortgage Loans, based on such Class's Accrued
Certificate Interest for such Distribution Date without taking into account such
Net Prepayment Interest Shortfalls and (ii) the related Class's pro rata share
of (A) after the related 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 net Mortgage Interest 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 related 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 Deficient Valuation, (C)
each Relief Act Reduction incurred on a Mortgage Loan, during the calendar month
preceding the month of such Distribution Date and (D) after the related 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 net Mortgage Interest
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. After the Cross-Over Date, the
interest portion of Realized Losses, including Excess Losses, for any
Distribution Date, shall be allocated to reduce the Accrued Certificate Interest
for the Senior Certificates, pro rata, based upon such Class' Accrued
Certificate Interest for such Distribution Date without taking into account such
reductions.
(b) Notwithstanding the priority and allocation contained in Section
4.01(a), if with respect to any Class of Subordinate Certificates on any
Distribution Date, such Class has not satisfied the related Subordinate
Certificates Prepayment Distribution Trigger, no distribution of amounts
pursuant to clauses (2) and (3) of the definition of the Subordinate Optimal
Principal Amount will be made to any such Classes (the "Restricted Classes") and
the amount of such amounts pursuant to clauses (2) and (3) of the definition of
the Subordinate Optimal Principal Amount otherwise distributable to the
Restricted Classes shall be distributed to any Classes of Subordinate
Certificates, which are not Restricted Classes, having lower numerical Class
designations than such Class, pro rata based on their respective Class
Certificate Balances immediately prior to such Distribution Date. The
calculation of any amount to be distributed under this Section 4.02 shall be
made by the Servicer.
(c) In the event that the Trust Fund is terminated pursuant to
Article XI, the Securities Administrator shall remit the amount of any excess
(after taking into account distributions of all amounts required to be made to
the other Classes of Certificates and the payment of all amounts due hereunder
in respect of indemnification and reimbursement) by wire transfer of immediately
available funds to the holders of the Class A-R Certificates in accordance with
the instructions of the holders of the Class A-R Certificates.
Section 4.03 Allocation of Realized Losses. (a) On or prior to each
Distribution Date, the Servicer shall determine the total amount of Realized
Losses, including Excess Losses and the allocation of such total amount as set
forth below. Realized Losses occurring on the Mortgage Loans shall be allocated
as follows:
(i) (A) any Realized Loss (other than an Excess Loss) shall be
allocated first to the Subordinate Certificates in reverse order of their
respective numerical Class designations (beginning with the Class of
Subordinate 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 (1) to the Classes of Senior
Certificates and the PO Components, pro rata on the basis of their
respective Class Certificate Balances and Component Principal Balances
immediately prior to the related Distribution Date until the Class
Certificate Balance or Component Principal Balance, as applicable, of each
such Class or PO Component has been reduced to zero; provided, however,
that on or after the Cross-Over Date, the losses allocable to the Class
A-1 and Class A-2 Certificates under this paragraph will instead be
allocated to the Class A-3 Certificates (in addition to other losses borne
by such Certificates) until the Class Certificate Balance of the Class A-2
Certificates has been reduced to zero; and provided, however, that on or
after the Cross-Over Date and after the Class Certificate Balance of the
Class A-3 Certificates has been reduced to zero, the losses allocable to
the Class A-1 Certificates under this paragraph will instead be allocated
to the Class A-2 Certificates (in addition to other losses borne by such
Certificates) until the Class Certificate Balance of the Class A-2
Certificates has been reduced to zero.
(B) any Excess Losses occurring on the Mortgage Loans shall be
allocated among the Senior Certificates, and each Class of
Subordinate Certificates, pro rata, based upon their respective
Class Certificate Balances after giving effect to distributions of
principal on such Distribution Date.
(b) The Class Certificate Balance of the Class of Subordinate
Certificates then outstanding with the highest numerical Class designation shall
be reduced on each Distribution Date by the amount, if any, by which the
aggregate of the Class Certificate Balances of the Senior Certificates and
Subordinate Certificates (after giving effect to the distribution of principal
and the allocation of Realized Losses with respect to the Mortgage Loans)
exceeds the aggregate Stated Principal Balance of the Mortgage Loans for the
following Distribution Date, less any Deficient Valuations occurring before the
Bankruptcy Loss Coverage Amount has been reduced to zero; and
(c) Any allocation of Realized Losses to a Certificate or any
reduction in the Class Certificate Balance of a Certificate, pursuant to Section
4.03(a) or (b) above shall be accomplished by reducing the Class Certificate
Balance thereof, as applicable, immediately following the distributions made on
the related Distribution Date in accordance with the definition of "Class
Certificate Balance" herein; provided that no Realized Loss shall be allocated
to reduce the Class Certificate Balance of a Senior Certificate to the extent
that such allocation would reduce the aggregate Class Certificate Balance of all
of the Certificates and Subordinate Certificates to an amount less than the
aggregate Stated Principal Balance for the following Distribution Date minus any
related Deficient Valuations occurring before the related Bankruptcy Loss
Coverage Termination Date (such limitation, the "Loss Allocation Limitation").
(d) Prior to the Cross-Over Date, with respect to any Subsequent
Recoveries received during a Principal Prepayment Period with respect to any
Mortgage Loans, the Class Certificate Balance or Component Principal Balance of
one or more Classes of Certificates or PO Components to which Realized Losses
have previously been allocated, will be increased for the related Distribution
Date, as follows:
(i) first, up to the amount of the Subsequent Recoveries, the Class
Certificate Balance or Component Principal Balance of each Class of Senior
Certificates or PO Component, as applicable, will be increased, pro rata,
up to the amount of the excess, if any, of (x) unrecovered Realized Losses
previously allocated to each such Class or PO Component, if any over (y)
amounts previously applied to the increase of the Class Certificate
Balance of such Class or PO Component pursuant to this Section 4.03(d)(i);
and
(ii) second, up to the amount of the Subsequent Recoveries remaining
after allocation pursuant to the preceding clause (i), the Class
Certificate Balance of each related Class of Subordinate Certificates, in
order of seniority, will be increased, by the amount of the excess, if
any, of (x) unrecovered Realized Losses previously allocated to each such
Class, if any, over (y) amounts previously applied to the increase of the
Class Certificate Balance of such Class pursuant to this Section
4.03(d)(ii).
(e) Commencing on the Cross-Over Date, the Securities Administrator
shall distribute the amount of any Subsequent Recovery received during a
Principal Prepayment Period, pro rata, based on Class Certificate Balances, to
the Classes of Senior Certificates and PO Components for which the Subsequent
Recovery was received; provided, however, that any distribution to a Class of
Certificates and Component Principal Balance, as applicable, pursuant to this
Section 4.03(e) shall not reduce the Class Certificate Balance or Component
Principal Balance of such Class or PO Component, as applicable.
Section 4.04 Carryover Shortfall Reserve Fund (a) On each
Distribution Date, all or a portion of the amounts distributable as interest to
the IO Components of the Class A-X Certificates in an amount up to the Carryover
Shortfall Amount, if any, for such Distribution Date, shall be deposited in the
Carryover Shortfall Reserve Fund and shall be distributed on such Distribution
Date, concurrently, as follows:
(i) from amounts on deposit in the Carryover Shortfall Reserve Fund
otherwise distributable to the Class A-X-IO-1 Component, first,
concurrently, to each Class of Senior Certificates (with the exception of
the Class A-X and Class A-R Certificates), pro rata, based on their
respective Class Certificate Balances, up to the amount of the Carryover
Shortfall Amount with respect to each such Class of Certificates for such
Distribution Date, second, concurrently, to each Class of such Senior
Certificates, pro rata, based on their respective Carryover Shortfall
Amounts for such Distribution Date not paid above, up to the amount of the
Carryover Shortfall Amount with respect to each such Class of Certificates
for such Distribution Date not paid and third, any amounts remaining to
the Class A-X Certificates, and
(ii) from amounts on deposit in the Carryover Shortfall Reserve Fund
otherwise distributable to the Class A-X-IO-2 Component, first,
concurrently, to each class of Subordinate Certificates, pro rata, based
on their respective Class Certificate Balances, up to the amount of the
Carryover Shortfall Amount with respect to each such Class of Certificates
for such Distribution Date, second, concurrently, to each Class of
Subordinate Certificates, pro rata, based on their respective Carryover
Shortfall Amounts for such Distribution Date not paid above, up to the
amount of the Carryover Shortfall Amount with respect to each such Class
of Certificates for such Distribution Date not paid and third, any amounts
remaining to the Class A-X Certificates.
(b) To the extent amounts in respect of interest otherwise payable
to an IO Component are used to pay Carryover Shortfall Amounts and are not paid
to the Class A-X Certificates, a holder of the Class A-X Certificates will not
be entitled to reimbursement for such amounts. The Carryover Shortfall Reserve
Fund Account will not be an asset of either Trust REMIC.
Section 4.05 Allocation of Net Deferred Interest. On each
Distribution Date, the Net Deferred Interest will be allocated among the Senior
Certificates and the Subordinate Certificates. Among the Senior Certificates or
Subordinate Certificates, as applicable, the Net Deferred Interest allocated to
a Class of Certificates or its IO Components will be an amount equal to the
excess, if any, for each such Class or IO Component of:
(i) the amount of interest that accrued on such Class of
Certificates or IO Component at its respective Pass-Through Rate during
the Interest Accrual Period related to that Distribution Date, over
(ii) the amount of current interest that would have accrued had the
Pass-Through Rate for that Class of Certificates or IO Component equaled
the related Adjusted Loan Cap for that Distribution Date.
The amount of Net Deferred Interest allocated to a Class of Certificates will be
added to the Class Certificate Balance of such Class of Certificates, provided,
that the amount of Net Deferred Interest allocated to an IO Component will be
added to the Component Principal Balance of the PO Component with the same
alpha-numeric designation.
Section 4.06 Monthly Statements to Certificateholders. (a) Not later
than each Distribution Date, the Securities Administrator shall make available
to each Certificateholder, the Servicer, the Depositor and each Rating Agency a
statement based in part on information provided by the Servicer setting forth
with respect to the related distribution:
(i) the actual Distribution Date, the related Record Date, the
Interest Accrual Period(s) for each Class for such Distribution Date and
the LIBOR Determination Date or MTA Determination Date, as applicable, for
such Interest Accrual Period;
(ii) the amount of Available Funds;
(iii) the amount of Available Funds allocable to principal, the
Senior Optimal Principal Amount (separately identifying the components
thereof) and the Subordinate Optimal Principal Amount (separately
identifying the components thereof);
(iv) the amount of Available Funds allocable to interest;
(v) the aggregate amount of any Principal Prepayment and repurchase
proceeds included in the distributions to Certificateholders;
(vi) the Class Certificate Balance or the Notional Amount of each
Class of Certificates before and after giving effect to the distribution
of principal on such Distribution Date and the aggregate amount of all
Advances recovered during the related Due Period;
(vii) the Pool Stated Principal Balance for the related Distribution
Date;
(viii) the amount of the Expense Fees paid to or retained by the
Servicer with respect to such Distribution Date and the amount of any
expenses and fees paid to or retained by the Master Servicer or Securities
Administrator for such Distribution Date, in each case identifying the
general purpose of such fees;
(ix) the Pass-Through Rate for each such Class of Certificates with
respect to such Distribution Date;
(x) the amount of Advances included in the distribution on such
Distribution Date and the aggregate amount of Advances reported by the
Servicer (and the Master Servicer or the Trustee as successor servicer and
any other successor servicer, if applicable) as outstanding as of the
close of business on the Determination Date immediately preceding such
Distribution Date;
(xi) the number and aggregate outstanding principal balances of
Mortgage Loans (1) as to which the Scheduled Payment is Delinquent 30 to
59 days, 60 to 89 days, 90 or more days, and in such other periods and for
such times as required by Regulation AB, (2) that have become REO
Property, (3) that are in foreclosure, (4) that are in bankruptcy and (5)
that have been modified, in each case as of the close of business on the
last Business Day of the immediately preceding month;
(xii) with respect to any Mortgage Loans that became REO Properties
during the preceding calendar month, the aggregate number of such Mortgage
Loans and the aggregate outstanding principal balance of such Mortgage
Loans as of the close of business on the Determination Date preceding such
Distribution Date of the REO Properties;
(xiii) the amount of Carryover Shortfall Amounts for the related Due
Period and the amount of Carryover Shortfall Amounts in the Carryover
Shortfall Reserve Fund for that Distribution Date;
(xiv) the total number and outstanding principal balance of any REO
Properties (and market value, if available) as of the close of business on
the Determination Date preceding such Distribution Date;
(xv) the aggregate amount of Realized Losses during the related Due
Period and the aggregate amount of Realized Losses since the Cut-off Date;
(xvi) the amount of any Realized Losses during the related Due
Period, if any, allocated to each Class of Certificates;
(xvii) with respect to each Class of Certificates, any amount not
covered by Compensating Interest on such Distribution Date;
(xviii) the amount of any Subsequent Recoveries for such
Distribution Date;
(xix) the amount of any Net Deferred Interest allocated to any Class
for such Distribution Date;
(xx) the number of Mortgage Loans at the beginning and end of the
applicable reporting period, the pool factor, and the WAC Rate, and
weighted average remaining term;
(xxi) if provided by the Servicer, any material changes to
methodology regarding calculations of Delinquencies and charge-offs;
(xxii) if provided by the Servicer, any material modifications,
extensions or waivers to pool asset terms, fees, penalties or payments
during the Due Period or that have cumulatively become material over time;
(xxiii) if provided by the Servicer, any material breaches of pool
asset representations or warranties or transaction covenants;
(xxiv) the Senior Percentage, Senior Prepayment Percentage,
Subordinate Percentage and Subordinate Prepayment Percentage for such
Distribution Date;
(xxv) if provided by the Servicer, and if applicable, information
regarding any new issuance of asset-backed securities backed by the same
asset pool, any pool asset changes (other than in connection with a pool
asset converting into cash in accordance with its terms), such as
additions or removals in connection with a prefunding period and pool
asset substitutions and repurchases (and purchase rates, if applicable),
and cash flows available for future purchases, such as the balances of any
prefunding or revolving accounts, if applicable; and
(xxvi) if provided by the Servicer, any material changes in the
solicitation, credit-granting, underwriting, origination, acquisition or
pool selection criteria or procedures, as applicable, used to originate,
acquire or select the new pool assets.
In addition, each Form 10-D prepared and filed by the Securities
Administrator pursuant to Section 8.15 shall include the following information
with respect to the related distribution:
(i) material breaches of Mortgage Loan representations and
warranties of which the Securities Administrator has knowledge or has
received written notice; and
(ii) material breaches of any covenants under this Agreement of
which the Securities Administrator has knowledge or has received written
notice.
(b) The Securities Administrator's responsibility for providing the
above statement to the Certificateholders, each Rating Agency and the Depositor
is limited, if applicable, to the availability, timeliness and accuracy of the
information derived from the Servicer. The Securities Administrator shall make
available the above statement via the Securities Administrator's internet
website. The Securities Administrator's website will initially be located at
▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇.▇▇▇ and assistance in using the website can be obtained by
calling the Securities Administrator's customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇.
Parties that are unable to use the website are entitled to have a paper copy
mailed to them via first class mail by calling the customer service desk and
indicating such. The Securities Administrator may change the way the monthly
statements to Certificateholders are distributed in order to make such
distribution more convenient and/or more accessible to the above parties and the
Securities Administrator shall provide timely and adequate notification to all
above parties regarding any such changes. As a condition to access the
Securities Administrator's internet website, the Securities Administrator may
require registration and the acceptance of a disclaimer. The Securities
Administrator will not be liable for the dissemination of information in
accordance with this Agreement.
The Securities Administrator shall make available to each Analytics
Company via the Securities Administrator's internet website each statement to
Certificateholders prepared pursuant to this Section 4.02(b). The Securities
Administrator and the Servicer shall cooperate in good faith with the Depositor
to reconcile any discrepancies in such statements, and the Securities
Administrator shall provide any corrections to such statements to each Analytics
Company within ten Business Days of the related Distribution Date, provided that
the Securities Administrator shall only be obligated to report to one Analytics
Company in any month.
(c) Within a reasonable period of time after the end of each
calendar year, the Securities Administrator 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)(iii), and (a)(iv)
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
Securities Administrator shall be deemed to have been satisfied to the extent
that substantially comparable information shall be provided by the Securities
Administrator pursuant to any requirements of the Code as from time to time in
effect.
(d) Notwithstanding any other provision of this Agreement, the
Securities Administrator shall comply with all federal withholding requirements
respecting distributions to Certificateholders of interest or original issue
discount that the Securities Administrator reasonably believes are applicable
under the Code. The consent of Certificateholders shall not be required for such
withholding. If the Securities Administrator does withhold any amount from
interest or original issue discount payments or advances thereof to any
Certificateholder pursuant to federal withholding requirements, the Securities
Administrator shall indicate the amount withheld to such Certificateholders.
Such amounts shall be deemed to have been distributed to such Certificateholders
for all purposes of this Agreement.
Section 4.07 Certain Matters Relating to the Determination of LIBOR.
LIBOR shall be calculated by the Securities Administrator in accordance with the
definition of LIBOR. Until all of the LIBOR Certificates are paid in full, the
Securities Administrator shall at all times retain at least four Reference Banks
for the purpose of determining LIBOR with respect to each LIBOR Determination
Date. The Securities Administrator initially shall designate the Reference Banks
(after consultation with the Depositor). 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 Securities Administrator 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 Securities Administrator should terminate its
appointment as Reference Bank, the Securities Administrator shall promptly
appoint or cause to be appointed another Reference Bank (after consultation with
the Depositor). The Securities Administrator 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.
(i) The Pass-Through Rate for each Class of LIBOR Certificates for
each Interest Accrual Period shall be determined by the Securities
Administrator on each LIBOR Determination Date so long as the LIBOR
Certificates are Outstanding on the basis of LIBOR and the respective
formulae appearing in footnotes corresponding to the LIBOR Certificates in
the table relating to the Certificates in the Preliminary Statement. The
Securities Administrator shall not have any liability or responsibility to
any Person for its inability, following a good-faith reasonable effort, to
obtain quotations from the Reference Banks or to determine the arithmetic
mean referred to in the definition of LIBOR, all as provided for in this
Section 4.07 and the definition of LIBOR. The establishment of LIBOR and
each Pass-Through Rate for the LIBOR Certificates by the Securities
Administrator shall (in the absence of manifest error) be final,
conclusive and binding upon each Holder of a Certificate and the
Securities Administrator.
Section 4.08 Certain Matters Relating to the Determination of MTA.
(a) On each related MTA Determination Date, so long as the MTA Certificates are
outstanding, the Securities Administrator shall determine MTA on the basis of
the most recent MTA figure available as of such related MTA Determination Date.
(b) If on any MTA Determination Date, MTA is no longer available,
the Securities Administrator shall select a new index for the MTA Certificates
that is based on comparable information. When the Securities Administrator
selects a new index for the MTA Certificates, the Pass-Through Rate for each
Class of MTA Certificates shall increase or decrease by the difference between
the average MTA for the final three years it was in effect and the average of
the most recent three years for the replacement index. The Pass-Through Rate for
each Class of MTA Certificates will be increased by that difference if the
average MTA is greater than the average replacement index, and the Pass-Through
Rate for each Class of MTA Certificates will be decreased by that difference if
the replacement index is greater than the average MTA.
(c) The Pass-Through Rate for each Class of MTA Certificates for
each Interest Accrual Period shall be determined by the Securities Administrator
on each MTA Determination Date so long as the MTA Certificates are outstanding
on the basis of MTA and the respective formulae appearing in footnotes
corresponding to the MTA Certificates in the table relating to the Certificates
in the Preliminary Statement.
(d) The determination of MTA and the Pass-Through Rates for the MTA
Certificates by the Securities Administrator shall (in the absence of manifest
error) be final, conclusive and binding upon each Holder of a MTA Certificate
and the Securities Administrator.
ARTICLE V
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
in excess thereof (except that one Certificate in each Class may be issued in a
different amount) and aggregate denominations per Class set forth in the
Preliminary Statement.
Subject to Section 11.02 respecting the final distribution on the
Certificates, on each Distribution Date the Securities Administrator shall make
distributions to each Certificateholder of record on the preceding Record Date
either (x) by wire transfer in immediately available funds to the account of
such Holder at a bank or other entity having appropriate facilities therefor, if
such Holder has so notified the Securities Administrator at least five Business
Days prior to the related Record Date or (y) by check mailed by first class mail
to such Certificateholder at the address of such Holder appearing in the
Certificate Register.
The Certificates shall be executed by manual or facsimile signature
on behalf of the Securities Administrator by 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 Securities
Administrator shall bind the Securities Administrator, notwithstanding that such
individuals or any of them have ceased to be so authorized prior to the
authentication 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 authenticated
by the Securities Administrator by manual signature, and such authentication
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 authentication. On the Closing
Date, the Securities Administrator shall authenticate the Certificates to be
issued at the direction of the Depositor, or any Affiliate thereof.
Section 5.02......Certificate Register; Registration of Transfer and Exchange of
Certificates. (a) The Securities Administrator shall maintain, or cause to be
maintained in accordance with the provisions of this Section 5.02, a Certificate
Register for the Trust Fund in which, subject to the provisions of subsections
(b) and (c) below and to such reasonable regulations as it may prescribe, the
Securities Administrator 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 Securities Administrator
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 Securities
Administrator. Whenever any Certificates are so surrendered for exchange, the
Securities Administrator shall execute, authenticate, and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive. Every Certificate presented or surrendered for registration of transfer
or exchange shall be accompanied by a written instrument of transfer in form
satisfactory to the Securities Administrator duly executed by the Holder thereof
or his attorney duly authorized in writing.
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 Securities
Administrator in accordance with the Securities Administrator'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. In determining whether a transfer is being made pursuant to an effective
registration statement, the Securities Administrator shall be entitled to rely
solely upon a written notice to such effect from the Depositor. Except with
respect to the transfer of the Class A-X Certificates or the Residual
Certificates to the Depositor or an Affiliate of the Depositor, in the event
that a transfer of a Private Certificate which is a Physical Certificate 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 shall certify to the
Securities Administrator in writing the facts surrounding the transfer in
substantially the form set forth in Exhibit H (the "Transferor Certificate") and
either (i) there shall be delivered to the Securities Administrator a letter in
substantially the form of Exhibit I (the "Rule 144A Letter") or (ii) there shall
be delivered to the Securities Administrator at the expense of the transferor an
Opinion of Counsel that such transfer may be made without registration under the
Securities Act. In the event that a transfer of a Private Certificate which is a
Book-Entry Certificate 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 will
be deemed to have made as of the transfer date each of the certifications set
forth in the Transferor Certificate in respect of such Certificate and the
transferee will be deemed to have made as of the transfer date each of the
certifications set forth in the Rule 144A Letter in respect of such Certificate,
in each case as if such Certificate were evidenced by a Physical Certificate. As
directed by the Depositor, the Securities Administrator shall provide to any
Holder of a Private Certificate and any prospective transferee designated by any
such Holder, information regarding the related Certificates and the Mortgage
Loans and such other information as shall be necessary to satisfy the condition
to eligibility set forth in Rule 144A(d)(4) for transfer of any such Certificate
without registration thereof under the Securities Act pursuant to the
registration exemption provided by Rule 144A. The Depositor shall cooperate with
the Securities Administrator and the Servicer in providing the Rule 144A
information referenced in the preceding sentence, including providing to the
Securities Administrator such information regarding the Certificates, the
Mortgage Loans and other matters regarding the Trust Fund as the Depositor shall
reasonably determine to meet its obligation under the preceding sentence. Each
Holder of a Private Certificate desiring to effect such transfer shall, and does
hereby agree to, indemnify the Securities Administrator, the Servicer 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.
Except with respect to the transfer of the Class A-X Certificates or
the Residual Certificates to the Depositor or an Affiliate of the Depositor, no
transfer of an ERISA-Restricted Certificate shall be made unless the Securities
Administrator shall have received either (i) a representation from the
transferee of such Certificate acceptable to and in form and substance
satisfactory to the Securities Administrator (in the event such Certificate is a
Private Certificate, such requirement is satisfied only by the Securities
Administrator's receipt of a representation letter from the transferee
substantially in the form of Exhibit I), to the effect that such transferee is
not an employee benefit plan or arrangement subject to Section 406 of ERISA, a
plan subject to Section 4975 of the Code or a plan subject to any Federal, state
or local law ("Similar Law") materially similar to the foregoing provisions of
ERISA or the Code, nor a Person acting on behalf of any such plan or arrangement
nor using the assets of any such plan or arrangement to effect such transfer, or
(ii) in the case of an ERISA-Restricted Certificate other than a Residual
Certificate that has been the subject of an ERISA-Qualifying Underwriting, and
the purchaser is an insurance company, a representation that the purchaser is an
insurance company that is purchasing such Certificates with funds contained in
an "insurance company general account" (as such term is defined in Section V(e)
of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the
purchase and holding of such Certificates are covered under Sections I and III
of PTCE 95-60 or (iii) in the case of any such ERISA-Restricted Certificate
other than a Class L Certificate, a Class P Certificate or a Residual
Certificate presented for registration in the name of an employee benefit plan
subject to Title I of ERISA, a plan or arrangement subject to Section 4975 of
the Code (or comparable provisions of any subsequent enactments), or a plan
subject to Similar Law, or a trustee of any such plan or any other Person acting
on behalf of any such plan or arrangement or using such plan's or arrangement's
assets, an Opinion of Counsel satisfactory to the Securities Administrator,
which Opinion of Counsel shall not be an expense of the Depositor, the
Securities Administrator, the Servicer, the Master Servicer, the Custodian or
the Trust Fund, addressed to the Securities Administrator, to the effect that
the purchase or holding of such ERISA-Restricted Certificate will not constitute
or result in a non-exempt prohibited transaction within the meaning of ERISA,
Section 4975 of the Code or any Similar Law and will not subject the Depositor,
the Securities Administrator, the Master Servicer, the Custodian or the 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 Physical Certificate, in the event
the representation letter referred to in the preceding sentence is not
furnished, such representation shall be deemed to have been made to the
Securities Administrator by the transferee's (including an initial acquirer's)
acceptance of the ERISA-Restricted Certificates. Notwithstanding anything else
to the contrary herein, (a) any purported transfer of an ERISA-Restricted
Certificate, other than a Class L Certificate, a Class P Certificate or a
Residual Certificate, to or on behalf of an employee benefit plan subject to
ERISA, the Code or Similar Law without the delivery to the Securities
Administrator of an Opinion of Counsel satisfactory to the Securities
Administrator as set forth above shall be void and of no effect and (b) any
purported transfer of a Class L Certificate, a Class P Certificate or a Residual
Certificate to a transferee that does not make the representation in clause (i)
above shall be void and of no effect.
None of the Class L Certificates, the Class P Certificates or the
Residual Certificates may be sold to any employee benefit plan subject to Title
I of ERISA, any plan subject to Section 4975 of the Code, or any plan subject to
any Similar Law or any Person investing on behalf or with plan assets of such
plan.
To the extent permitted under applicable law (including, but not
limited to, ERISA), the Securities Administrator 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 the provisions of this Agreement so long as the
transfer was registered by the Securities Administrator 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 Securities Administrator 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
Securities Administrator shall not register the Transfer of any Residual
Certificate unless, in addition to the certificates required to be
delivered to the Securities Administrator under subparagraph (b) above,
the Securities Administrator 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 G;
(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 a
Non-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 Securities Administrator 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 related Transfer Affidavit, Transferor
Certificate and the Rule 144A Letter. The Securities Administrator shall
be entitled but not obligated to recover from any Holder of a Residual
Certificate that was in fact a Non-Permitted Transferee at the time it
became a Holder or, at such subsequent time as it became a Non-Permitted
Transferee, all payments made on such Residual Certificate at and after
either such time. Any such payments so recovered by the Securities
Administrator shall be paid and delivered by the Securities Administrator
to the last preceding Permitted Transferee of such Certificate; and
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Securities Administrator, 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 a Non-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 Securities Administrator of an Opinion of
Counsel, which Opinion of Counsel shall not be an expense of the Trust Fund, the
Securities Administrator, the Master Servicer, the Custodian or the Servicer, to
the effect that the elimination of such restrictions will not cause either Trust
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 Securities
Administrator, 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 a Non-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 a Non-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
Securities Administrator 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 Securities
Administrator shall deal with the Depository, Depository Participants and
indirect participating firms 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 Securities Administrator
may rely and shall be fully protected in relying upon information furnished by
the Depository with respect to its Depository Participants and furnished by the
Depository Participants with respect to indirect participating firms and persons
shown on the books of such indirect participating firms as direct or indirect
Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall
be made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Certificate Owner. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
If (x) (i) the Depository or the Depositor advises the Securities
Administrator in writing that the Depository is no longer willing or able to
properly discharge its responsibilities as Depository, and (ii) the Securities
Administrator or the Depositor is unable to locate a qualified successor, or (y)
the Depositor notifies the Depository of its intent to terminate the book-entry
system through the Depository and, upon receipt of notice of such intent from
the Depository, the Depository Participants holding beneficial interests in the
Book-Entry Certificates agree to initiate such termination, the Securities
Administrator 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 Securities Administrator of the
related Class of Certificates by the Depository, accompanied by the instructions
from the Depository for registration, the Securities Administrator shall issue
the Definitive Certificates. None of the Depositor or the Securities
Administrator 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 Depositor shall provide the Securities Administrator 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 Securities
Administrator, to the extent applicable with respect to such Definitive
Certificates and the Securities Administrator shall recognize the Holders of the
Definitive Certificates as Certificateholders hereunder; provided, that the
Securities Administrator 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.
(f) Each Private Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer and accompanied by IRS Form W-8ECI, W-8BEN, W-8IMY (and
all appropriate attachments) or W-9 in form satisfactory to the Securities
Administrator, duly executed by the Certificateholder or his attorney duly
authorized in writing. Each Private Certificateholder by its purchase of a
Certificate is deemed to consent to any such IRS Form being so forwarded.
(g) Each Certificate presented or surrendered for registration of
transfer or exchange shall be canceled and subsequently disposed of by the
Securities Administrator in accordance with its customary practice. No service
charge shall be made for any registration of transfer or exchange of Private
Certificates, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Private Certificates.
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates. If
(a) any mutilated Certificate is surrendered to the Securities Administrator, or
the Securities Administrator receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there is delivered to the
Depositor and the Securities Administrator such security or indemnity as may be
required by them to hold each of them harmless, then, in the absence of notice
to the Securities Administrator that such Certificate has been acquired by a
bona fide purchaser, the Securities Administrator shall execute, authenticate
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 Securities Administrator 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
Securities Administrator) 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 shall be found at any time.
Section 5.04 Persons Deemed Owners. The Trustee, the Securities
Administrator, the Depositor and any agent of the Depositor or the Securities
Administrator 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 the
Trustee, the Securities Administrator, the Depositor, nor any agent of the
Depositor or the Securities Administrator 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 Securities Administrator, (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 Servicer shall request such information in
writing from the Securities Administrator, then the Securities Administrator
shall, within ten Business Days after the receipt of such request, provide the
Depositor, the Servicer or such Certificateholders at such recipients' expense
the most recent list of the Certificateholders of such Trust Fund held by the
Securities Administrator, if any. The Depositor and every Certificateholder, by
receiving and holding a Certificate, agree that the Securities Administrator
shall not be held accountable by reason 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 Securities
Administrator will maintain or cause to be maintained at its expense an office
or offices or agency or agencies where Certificates may be surrendered for
registration of transfer or exchange. The Securities Administrator initially
designates its offices located at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The Securities Administrator shall give prompt
written notice to the Certificateholders of any change in such location of any
such office or agency.
ARTICLE VI
THE DEPOSITOR
Section 6.01 Respective Liabilities of the Depositor. The Depositor
shall be liable in accordance herewith only to the extent of the obligations
specifically and respectively imposed upon and undertaken by them herein.
Section 6.02 Merger or Consolidation of the Depositor. The Depositor
will keep in full effect its existence, rights and franchises as a corporation
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 may be merged or consolidated,
or any Person resulting from any merger or consolidation to which the Depositor
shall be a party, or any Person succeeding to the business of the Depositor,
shall be the successor of the Depositor, 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.
Section 6.03 Limitation on Liability of the Depositor and Others.
Neither the Depositor nor any of its directors, officers, employees or agents
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 or any such Person against any breach of
representations or warranties made by it herein or protect the Depositor 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 by reason of reckless disregard of obligations and duties hereunder. The
Depositor and any director, officer, employee, Affiliate or agent of the
Depositor 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 and any director, officer, employee or agent of the
Depositor 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 or any other unanticipated
or extraordinary expense, other than any loss, liability or expense incurred by
reason of willful misfeasance, bad faith or gross negligence in the performance
of duties hereunder or by reason of reckless disregard of obligations and duties
hereunder. The Depositor shall not be under any obligation to appear in,
prosecute or defend any legal action that is not incidental to its respective
duties hereunder and which in its opinion may involve it in any expense or
liability; provided, however, that the Depositor may in its discretion undertake
any such action (or direct the Trustee to undertake such actions for the benefit
of the Certificateholders) that it may deem necessary or desirable 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 and the
Trustee, if applicable, shall be entitled to be reimbursed therefor out of the
Distribution Account.
Section 6.04 Option to Purchase Defaulted Mortgage Loans. The
Servicer shall have the option, but is not obligated, to purchase from the Trust
any Mortgage Loan that is 90 days or more delinquent. The purchase price
therefor, which shall be deposited in the Distribution Account, shall be 100% of
the unpaid principal balance of such Mortgage Loan, plus all related accrued and
unpaid interest, and the amount of any unreimbursed Servicing Advances made by
the Servicer related to the applicable Mortgage Loan.
ARTICLE VII
SERVICER DEFAULT
Section 7.01 Events of Default. If an Event of Default set forth in
the IndyMac Servicing Agreement shall occur with respect to the Servicer then,
and in each and every such case, so long as such Event of Default shall not have
been remedied, the Master Servicer may, or at the direction of
Certificateholders entitled to a majority of the Voting Rights the Master
Servicer shall, by notice in writing to the Servicer (with a copy to each Rating
Agency), terminate all of the rights and obligations of the Servicer under the
IndyMac Servicing Agreement and in and to the Mortgage Loans serviced by the
Servicer and the proceeds thereof. The Holders of Certificates evidencing at
least 66% of the Voting Rights of Certificates affected by an Event of Default
may waive such Event of Default; provided, however, that (a) an Event of Default
with respect to the Servicer's obligation to make Monthly Advances may be waived
only by all of the holders of the Certificates affected by such Event of Default
and (b) no such waiver is permitted that would materially adversely affect any
non-consenting Certificateholder. On and after the receipt by the Servicer of
such written notice of termination, all authority and power of the Servicer
hereunder, whether with respect to the applicable Mortgage Loans or otherwise,
shall pass to and be vested in the Master Servicer. The Master Servicer is
hereby authorized and empowered to execute and deliver, on behalf of the
Servicer, as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the applicable Mortgage
Loans and related documents, or otherwise.
Section 7.02 Master Servicer to Act; Appointment of Successor.
Within 120 days after the Master Servicer gives, and a Servicer receives a
notice of termination pursuant to Section 7.01, the Master Servicer shall,
subject to and to the extent provided in Section 7.03, and subject to the rights
of the Master Servicer to appoint a successor Servicer pursuant to this Section
7.02, be the successor to the Servicer in its capacity as servicer under the
IndyMac Servicing Agreement and the transactions set forth or provided for
herein and in the IndyMac Servicing Agreement and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the Servicer
by the terms and provisions of the IndyMac Servicing Agreement and applicable
law including the obligation to make Monthly Advances or Servicing Advances
pursuant to the IndyMac Servicing Agreement (it being understood and agreed that
if the Servicer fails to make an Advance, the Master Servicer (in its capacity
as successor servicer) shall do so unless a determination has been made that
such Advance would constitute a Nonrecoverable Monthly Advance or a
Nonrecoverable Servicing Advance). As compensation therefor, the Master Servicer
shall be entitled to all funds relating to the Mortgage Loans that the Servicer
would have been entitled to charge to the Collection Account if the Servicer had
continued to act under the IndyMac Servicing Agreement including, if the
Servicer was receiving the Servicing Fee at the Servicing Fee Rate set forth in
the IndyMac Servicing Agreement (as set forth in the Mortgage Loan Schedule with
respect to the related Mortgage Loans), such Servicing Fee and the income on
investments or gain related to the Collection Account.
Notwithstanding the foregoing, the Master Servicer may, if it shall
be unwilling to so act, or shall, if it is prohibited by applicable law from
making Monthly Advances and Servicing Advances pursuant to the IndyMac Servicing
Agreement, or if it is otherwise unable to so act, or, at the written request of
Certificateholders entitled to a majority of the Voting Rights, appoint, or
petition a court of competent jurisdiction to appoint, any established mortgage
loan servicing institution the appointment of which does not adversely affect
the then current rating of the Certificates by each Rating Agency, as the
successor to the Servicer under the IndyMac Servicing Agreement in the
assumption of all or any part of the responsibilities, duties or liabilities of
the Servicer. No such appointment of a successor to the Servicer hereunder shall
be effective until the Depositor shall have consented thereto. Any successor to
the Servicer shall be an institution which is a ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac
approved seller/servicer in good standing, which has a net worth of at least
$25,000,000, which is willing to service the Mortgage Loans and which executes
and delivers to the Depositor and the Master Servicer an agreement accepting
such delegation and assignment, containing an assumption by such Person of the
rights, powers, duties, responsibilities, obligations and liabilities of such
terminated Servicer, (other than liabilities of the terminated Servicer incurred
prior to termination of the Servicer under Section 7.01), with like effect as if
originally named as a party to this Agreement; provided, that each Rating Agency
acknowledges that its rating of the Certificates in effect immediately prior to
such assignment and delegation will not be qualified or reduced, as a result of
such assignment and delegation. Pending appointment of a successor to a Servicer
hereunder, the Master Servicer, unless the Master Servicer is prohibited by law
from so acting, shall, subject to this Section 7.02, act in such capacity as
hereinabove provided. In connection with such appointment and assumption, the
Master Servicer may make such arrangements for the compensation of such
successor out of payments on Mortgage Loans as it, the Depositor and such
successor shall agree; provided, however, that no such compensation shall be in
excess of the Servicing Fee Rate and amounts paid to the Servicer from
investments. The Master Servicer and such successor shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession. Neither the Master Servicer nor any other successor to a Servicer
shall be deemed to be in default hereunder by reason of any failure to make, or
any delay in making, any distribution hereunder or any portion thereof or any
failure to perform, or any delay in performing, any duties or responsibilities
hereunder, in either case caused by the failure of the predecessor Servicer to
deliver or provide, or any delay in delivering or providing, any cash,
information, documents or records to it.
Any successor Servicer shall be responsible for giving notice to the
related Mortgagors of such change of Servicer, in accordance with applicable
federal and state law, and shall, during the term of its service as Servicer,
maintain in force the policy or policies that the Servicer is required to
maintain pursuant to the IndyMac Servicing Agreement.
Notwithstanding the foregoing, the Master Servicer may not terminate
the Servicer without cause.
Section 7.03 Master Servicer to Act as Servicer. In the event that a
Servicer shall for any other reason no longer be the Servicer, the Master
Servicer or another successor Servicer, shall thereupon assume all of the rights
and obligations of the predecessor Servicer hereunder arising thereafter
pursuant to Section 7.02.
Section 7.04 Notification to Certificateholders. (a) Upon any
termination of or appointment of a successor to the Servicer, the Master
Servicer shall give prompt written notice thereof to Certificateholders and to
each Rating Agency.
(b) Promptly after the occurrence of any Event of Default, the
Master Servicer shall transmit by mail to all Certificateholders and each Rating
Agency notice of each such Event of Default hereunder known to the Master
Servicer, unless such Event of Default shall have been cured or waived.
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE CUSTODIAN, VARIOUS TAX MATTERS,
SERVICING REPORTS AND PERIODIC FILINGS
Section 8.01 Duties of the Trustee. The Trustee, before the
occurrence of a Master Servicer Event of Default and after the curing of all
Master Servicer 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 a Master Servicer 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.
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 bad faith or willful misfeasance; provided, however, that:
(a) unless a Master Servicer Event of Default of which a Responsible
Officer of the Trustee obtains actual knowledge has occurred and is continuing,
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 the 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 [Reserved].
Section 8.03 Certain Matters Affecting the Custodian and the
Trustee. Except as otherwise provided in Section 8.01:
(a) the Custodian and the Trustee may request and rely upon and
shall be protected in acting or refraining from acting upon any resolution,
Officer's Certificate, opinions (including an Opinion of Counsel), 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 neither the Custodian nor the Trustee shall have any
responsibility to ascertain or confirm the genuineness of any signature of any
such party or parties;
(b) the Custodian and 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 advice or
Opinion of Counsel;
(c) neither the Custodian nor the Trustee shall 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 nor shall either the Trustee or the Custodian be liable for acts
or omissions of the other;
(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 to do so by Holders of
Certificates evidencing not less than 25% of the Voting Rights allocated to each
Class of Certificates; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not assured to the Trustee by the security afforded to it by the terms
of this Agreement, the Trustee may require indemnity satisfactory to the Trustee
against such cost, expense or liability as a condition to taking any such
action. The reasonable expense of every such examination shall be paid by the
Servicer or, if paid by the Trustee, shall be repaid by the Servicer upon demand
from the Servicer's own funds;
(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) neither the Custodian nor the Trustee shall 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) unless a Responsible Officer of the Trustee has actual knowledge
of the occurrence of a Master Servicer Event of Default, the Trustee shall not
be deemed to have knowledge of an Event of Default, until a Responsible Officer
of the Trustee shall have received written notice thereof;
(i) the Trustee shall be under no obligation to exercise any of the
trusts, rights or powers vested in it by this Agreement or to institute, conduct
or defend any litigation hereunder or in relation hereto at the request, order
or direction of any of the Certificateholders, pursuant to this Agreement,
unless such Certificateholders shall have offered to the Trustee reasonable
security or indemnity satisfactory to the Trustee against the costs, expenses
and liabilities which may be incurred therein or thereby;
(j) the right of the Trustee to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty, and the Trustee
shall not be answerable for other than its negligence or willful misconduct in
the performance of such act;
(k) the Trustee shall not be required to give any bond or surety in
respect of the execution of the Trust Fund created hereby or the powers granted
hereunder;
(l) notwithstanding anything to the contrary in the applicable
Servicing Agreement, the Trustee shall not consent to the Servicer's request of
assigning the IndyMac Servicing Agreement or the servicing rights thereunder to
any other party;
(m) should the Trustee deem the nature of any action required on its
part to be unclear, the Trustee may require prior to such action that it be
provided by the Depositor with reasonable further instructions; and
(n) the Trustee shall not have any duty to conduct any affirmative
investigation (including, but not limited to reviewing any reports delivered to
the Trustee in connection with the review of Mortgage Files) as to the
occurrence of any condition requiring the repurchase of any Mortgage Loan by the
Purchaser or the Original Loan Seller pursuant to the Pooling and Servicing
Agreement or the IndyMac Purchase Agreement, as applicable, or the eligibility
of any Mortgage Loan for purposes of this Agreement.
Section 8.04 Trustee and Custodian Not Liable for Certificates or
Mortgage Loans. The recitals contained herein and in the Certificates shall be
taken as the statements of the Depositor and the Trustee assumes no
responsibility for their correctness. Neither the Trustee nor the Custodian
makes any representations as to the validity or sufficiency of this Agreement or
of the Certificates or of any Mortgage Loan or related document. The Trustee
shall not be accountable for the use or application by the Depositor or the
Servicer of any funds paid to the Depositor or the Servicer in respect of the
Mortgage Loans or deposited in or withdrawn from the Collection Account or the
Distribution Account by the Depositor or the Servicer.
The Trustee shall have no responsibility (i) 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 and remains the
successor Servicer), (ii) to see to any insurance (unless the Trustee shall have
become the successor Servicer), or (iii) to confirm or verify the contents of
any reports or certificates of a Servicer, delivered to the Trustee pursuant to
this Agreement believed by the Trustee to be genuine and to have been signed or
presented by the proper party or parties.
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 8.05 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 8.06 Trustee's and Custodian's Fees and Expenses. As
compensation for its activities under this Agreement, the Trustee shall be paid
its fees by the Securities Administrator from the Securities Administrator's own
funds pursuant to a separate agreement. The Trustee shall have no lien on the
Trust Fund for the payment of such fees. As compensation for its activities
under this Agreement, the Custodian shall be paid its fees by the Master
Servicer from the Master Servicer's own funds pursuant to a separate agreement.
The obligations of the Securities Administrator and the Master Servicer under
this Section 8.06 shall survive the resignation, termination or removal of the
Custodian for payment of the Custodian Fee accrued prior to such termination,
resignation or removal. The Trustee, the Custodian and their respective
directors, officers, employees, or agents shall be indemnified by the Trust Fund
and held harmless against any loss, liability, or expense (including reasonable
attorneys' fees) 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 or the Custodian's
duties under this Agreement,
other than any loss, liability, or expense (i) with respect to the Trustee,
resulting from any breach of the Servicer's obligations in connection with the
IndyMac Servicing Agreement for which that Servicer has completed performance of
its obligation to indemnify the Trustee pursuant to the IndyMac Servicing
Agreement, (ii) with respect to the Trustee, resulting from any breach of the
Original Loan Seller's obligations in connection with the IndyMac Purchase
Agreement for which it has completed performance of its obligation to indemnify
the Trustee pursuant to such IndyMac Purchase Agreement, or (iii) incurred
because of willful misfeasance, bad faith, or negligence in the performance of
any of the Custodian's or Trustee's duties under this Agreement, as applicable.
This indemnity shall survive the termination of this Agreement or the
resignation or removal of the Trustee or the Custodian 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
misfeasance, the Trust Fund 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) the reasonable out-of-pocket costs and expenses incurred
in connection with the termination of the Master Servicer and the
transfer of the Master Servicer's responsibilities and rights to a
successor Master Servicer pursuant to Section 9.04.
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 under
this Agreement; provided, however, no expense shall be reimbursed hereunder if
it would not constitute an "unanticipated expense incurred by the REMIC" within
the meaning of the REMIC Provisions.
Section 8.07 Eligibility Requirements for the Trustee. The Trustee
hereunder shall at all times be a corporation, banking association or other
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 any 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 8.07 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 8.07, the Trustee shall resign immediately in the manner and with the
effect specified in Section 8.08. The entity serving as Trustee may have normal
banking and trust relationships with the Depositor and its Affiliates or with
the Servicer and its Affiliates; provided, however, that such entity cannot be
an Affiliate of the Depositor or of the Servicer other than the Trustee in its
role as successor to the Servicer.
Section 8.08 Resignation and Removal of the Trustee. The Trustee may
at any time resign and be discharged from the trusts hereby created by giving
written notice of resignation to the Depositor, the Servicer, the Custodian and
each Rating Agency not less than 60 days before the date specified in such
notice, when, subject to Section 8.09, such resignation is to take effect, and
acceptance by a successor trustee in accordance with Section 8.09 meeting the
qualifications set forth in Section 8.07. 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 8.07 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 may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, one copy of which shall
be delivered to the Trustee and one copy to the successor trustee.
The Holders of Certificates entitled to a majority 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 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 8.08 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section 8.09.
Section 8.09 Successor Trustee. Any successor trustee appointed as
provided in Section 8.08 shall execute, acknowledge and deliver to the Depositor
and to its predecessor trustee 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 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 8.09 unless at the time of its acceptance, the successor trustee is
eligible under Section 8.07 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 8.09, 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 8.10 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 8.07
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. In
connection with the succession to the Trustee under this Agreement by any Person
(i) into which the Trustee may be merged or consolidated, or (ii) which may be
appointed as a successor to the Trustee, the Trustee shall notify the Depositor
and the Securities Administrator of such succession or appointment and shall
furnish to the Depositor and the Securities Administrator in writing and in form
and substance reasonably satisfactory to the Depositor and the Securities
Administrator, all information reasonably necessary for the Depositor and the
Securities Administrator to accurately and timely report, pursuant to Section
8.15(e), the event under Item 6.02 of Form 8-K pursuant to the Exchange Act (if
such reports under the Exchange Act are required to be filed under the Exchange
Act).
Section 8.11 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 Trustee shall have the power and shall execute and deliver all
instruments to appoint one or more Persons 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 8.11, such powers, duties, obligations, rights and
trusts as the Trustee may consider appropriate. No co-trustee or separate
trustee hereunder shall be required to meet the terms of eligibility as a
successor trustee under Section 8.09 and no notice to Certificateholders of the
appointment of any co-trustee or separate trustee shall be required under
Section 8.09.
Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and conditions:
(a) To the extent necessary to effectuate the purposes of this
Section 8.11, 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 (as successor 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 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 Trust Fund, 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 and indemnity to, the
Trustee. Every such instrument shall be filed with the Trustee and a copy
thereof given to the Servicer and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 8.12 Tax Matters. It is intended that the assets with
respect to which any REMIC election pertaining to the Trust Fund is to be made,
as set forth in the Preliminary Statement, shall constitute, and that the
conduct of matters relating to such assets shall be such as to qualify such
assets as, a "real estate mortgage investment conduit" as defined in, and in
accordance with, the REMIC Provisions. In furtherance of such intention, the
Securities Administrator covenants and agrees that it shall act as agent (and
the Securities Administrator is hereby appointed to act as agent) on behalf of
each Trust REMIC and that in such capacity it shall:
(a) prepare (and the Trustee shall sign) and file, in a timely
manner, a U.S. Real Estate Mortgage Investment Conduit (REMIC) Income Tax Return
(Form 1066 or any successor form adopted by the IRS) and prepare (and the
Trustee shall sign) and file with the IRS and applicable state or local tax
authorities income tax or information returns for each taxable year with respect
to each Trust REMIC 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, apply for an employer
identification number from the IRS via Form SS-4 or any other acceptable method
for all Trust REMICs and the grantor trust and shall also furnish to the IRS, on
Form 8811 or as otherwise may be required by the Code, the name, title, address,
and telephone number of the person that the Holders of the Certificates may
contact for tax information relating thereto, together with such additional
information as may be required by such Form, and update such information at the
time or times in the manner required by the Code;
(c) make an election that each Trust REMIC 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 IRS
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 described 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 a "Non-Permitted
Transferee," or an agent (including a broker, nominee or other middleman) of a
Non-Permitted Transferee, or a pass through entity in which a Non-Permitted
Transferee is the record holder of an interest (the reasonable cost of computing
and furnishing such information may be charged to the Person liable for such
tax);
(f) to the extent that they are under its control, conduct matters
relating to such assets at all times that any Certificates are Outstanding so as
to maintain the status of each Trust REMIC as a REMIC under the REMIC
Provisions;
(g) not knowingly or intentionally take any action or omit to take
any action that would cause the termination of the REMIC status of either Trust
REMIC created hereunder;
(h) pay, from the sources specified in the last paragraph of this
Section 8.12, the amount of any federal or state tax, including prohibited
transaction taxes as described below, imposed on each Trust REMIC before its
termination when and as the same shall be due and payable (but such obligation
shall not prevent the Securities Administrator or any other appropriate Person
from contesting any such tax in appropriate proceedings and shall not prevent
the Securities Administrator from withholding payment of such tax, if permitted
by law, pending the outcome of such proceedings);
(i) cause federal, state or local income tax or information returns
to be signed by the Trustee or, if required by applicable tax law, the
Securities Administrator or such other Person as may be required to sign such
returns by the Code or state or local laws, regulations or rules;
(j) maintain records relating to each of the Trust REMICs, including
the income, expenses, assets, and liabilities thereof on a calendar year basis
and on the accrual method of accounting and the fair market value and adjusted
basis of the assets determined at such intervals as may be required by the Code,
as may be necessary to prepare the foregoing returns, schedules, statements or
information; and
(k) as and when necessary and appropriate, represent each Trust
REMIC in any administrative or judicial proceedings relating to an examination
or audit by any governmental taxing authority, request an administrative
adjustment as to any taxable year of each Trust REMIC, enter into settlement
agreements with any governmental taxing agency, extend any statute of
limitations relating to any tax item of either Trust REMIC, and otherwise act on
behalf of each Trust REMIC in relation to any tax matter or controversy
involving it.
The Holder of the largest Percentage Interest of the Class A-R
Certificates shall act as Tax Matters Person for each Trust REMIC within the
meaning of Treasury Regulations Section 1.860F-4(d), and the Securities
Administrator is hereby designated as agent of such Certificateholder for such
purpose (or if the Securities Administrator is not so permitted, such Holder
shall be the Tax Matters Person in accordance with the REMIC Provisions). In
such capacity, the Securities Administrator shall, as and when necessary and
appropriate, represent each Trust REMIC in any administrative or judicial
proceedings relating to an examination or audit by any governmental taxing
authority, request an administrative adjustment as to any taxable year of each
Trust REMIC, enter into settlement agreements with any governmental taxing
agency, extend any statute of limitations relating to any tax item of either
Trust REMIC, and otherwise act on behalf of each Trust REMIC in relation to any
tax matter or controversy involving it.
The Securities Administrator shall treat the rights of the Class A-X
Certificateholders to receive amounts deposited in the Carryover Shortfall
Reserve Fund Account and the rights of the Principal Certificateholders to
receive Carryover Shortfall Amounts as the beneficial ownership of interests in
a grantor trust, and not as an obligation of either Trust REMIC created
hereunder, for federal income tax purposes. The Securities Administrator shall
file or cause to be filed with the IRS together with Form 1099 or such other
form as may be applicable and shall furnish or cause to be furnished, to the
Principal Certificateholders and the Offered Certificateholders, the respective
amounts set forth above that are received, in the time or times and in the
manner required by the Code.
To enable the Securities Administrator to perform its duties under
this Agreement, the Depositor shall provide to the Securities Administrator
within ten days after the Closing Date all information or data that the
Securities Administrator requests in writing and determines to be relevant for
tax purposes to the valuations and offering prices of the Certificates,
including the price, yield, prepayment assumption, and projected cash flows of
the Certificates and the Mortgage Loans. Moreover, the Depositor shall provide
information to the Securities Administrator concerning the value to each Class
of Principal Certificates of the right to receive Carryover Shortfall Amounts
from the Carryover Shortfall Reserve Fund Account. Unless otherwise advised by
the Depositor, for federal income tax purposes, the Securities Administrator is
hereby directed to assign a value of zero to the right of each Holder allocating
the purchase price of an initial Principal Certificateholder between such right
and the related Upper Tier Regular Interest. Thereafter, the Depositor shall
provide to the Securities Administrator promptly upon written request therefor
any additional information or data that the Securities Administrator may, from
time to time, reasonably request to enable the Securities Administrator to
perform its duties under this Agreement; provided, however, that the Depositor
shall not be required to provide any information regarding the Mortgage Loans
after the Closing Date or any information that the Servicer is required to
provide to the Securities Administrator. The Depositor hereby indemnifies the
Securities Administrator for any losses, liabilities, damages, claims, or
expenses of the Securities Administrator arising from any errors or
miscalculations of the Securities Administrator that result from any failure of
the Depositor to provide, pursuant to this paragraph, accurate information or
data to the Securities Administrator on a timely basis.
The Securities Administrator shall not (i) cause the creation of any
interests in either Trust REMIC other than the regular and residual interests
set forth in the Preliminary Statement, (ii) receive any amount representing a
fee or other compensation for services (except as otherwise permitted by this
Agreement) or (iii) otherwise knowingly or intentionally take any action, cause
the Trust Fund to take any action or fail to take (or fail to cause to be taken)
any action reasonably within its control and the scope of duties more
specifically set forth herein, that, under the REMIC Provisions, if taken or not
taken, as the case may be, could (i) endanger the status of either Trust REMIC
as a REMIC or (ii) result in the imposition of a tax upon either Trust REMIC or
the Trust Fund (including but not limited to the tax on "prohibited
transactions" as defined in Section 860F(a)(2) of the Code and the tax on
contributions to a Trust REMIC set forth in Section 860G(d) of the Code, or the
tax on "net income from foreclosure property") unless the Securities
Administrator receives an Opinion of Counsel (at the expense of the Trust Fund,
but in no event at the expense of the Securities Administrator), to the effect
that the contemplated action will not, with respect to the Trust Fund, result in
the imposition of a tax upon either Trust REMIC created hereunder or endanger
the status of either Trust REMIC.
If any tax is imposed on "prohibited transactions" of either Trust
REMIC as defined in Section 860F(a)(2) of the Code, on the "net income from
foreclosure property" of the Lower-Tier REMIC, as defined in Section 860G(c) of
the Code, on any contribution to either Trust 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 either Trust REMIC pursuant to Sections 23153 and
24874 of the California Revenue and Taxation Code, if not paid as otherwise
provided for herein, the tax shall be paid by (i) the Securities Administrator
if such tax arises out of or results from negligence of the Securities
Administrator in the performance of any of its obligations under this Agreement,
(ii) the Servicer, in the case of any such minimum tax, and otherwise if such
tax arises out of or results from a breach by the Servicer of any of its
obligations under the IndyMac Servicing Agreement, (iii) the Original Loan
Seller if such tax arises out of or results from the Original Loan Seller's
obligation to repurchase a Mortgage Loan pursuant to the IndyMac Purchase
Agreement or (iv) in all other cases, or if the Securities Administrator, the
Servicer or the Original Loan Seller fails to honor its obligations under the
preceding clause (i), (ii), or (iii), any such tax will be paid with amounts
otherwise to be distributed to the Certificateholders, as provided in Section
4.01(a).
For as long as each Trust REMIC shall exist, the Securities
Administrator shall act as specifically required herein, and the Securities
Administrator shall comply with any directions of the Depositor stating that
such directions are being given to assure such continuing treatment. In
particular, the Securities Administrator shall not (a) sell or authorize the
sale of all or any portion of the Mortgage Loans or of any investment of
deposits in an Account unless such sale is as a result of a purchase or
repurchase of the Mortgage Loans pursuant to this Agreement or (b) accept any
contribution to either Trust REMIC after the Startup Day without receipt of an
Opinion of Counsel that such action described in clause (a) or (b) will not
result in the imposition of a tax on either Trust REMIC or cause either Trust
REMIC to fail to qualify as a REMIC at any time that any Certificates are
outstanding.
The grantor trust shall be treated as a WHFIT that is a NMWHFIT. The
Securities Administrator shall report as required under the WHFIT Regulations to
the extent such information as is reasonably necessary to enable the Securities
Administrator to do so, and is not in its possession, is provided to the
Securities Administrator on a timely basis. The Securities Administrator is
hereby directed to assume that DTC is the only "middleman" (as such term is
defined in the WHFIT Regulations) unless the Depositor provides the Securities
Administrator with the identities of other "middlemen" that are
Certificateholders. The Securities Administrator shall be entitled to rely on
the first sentence of this subparagraph and shall be entitled to indemnification
in accordance with the terms of this Agreement in the event that the IRS makes a
determination that the first sentence of this subparagraph is incorrect.
The Securities Administrator, in its discretion, shall report
required WHFIT information using either the cash or accrual method, except to
the extent the WHFIT Regulations specifically require a different method. The
Securities Administrator shall be under no obligation to determine whether any
Certificateholder or other beneficial owner of a Certificate, to the extent the
Securities Administrator knows of any other beneficial owner of a Certificate,
uses the cash or accrual method. The Securities Administrator shall make
available information as required by the WHFIT Regulations to Certificateholders
annually. In addition, the Securities Administrator shall not be responsible or
liable for providing subsequently amended, revised or updated information to any
Certificateholder, unless requested by the Certificateholder.
The Securities Administrator shall not be liable for failure to meet
the reporting requirements of the WHFIT Regulations nor for any penalties
thereunder if such failure is due to: (i) the lack of reasonably necessary
information that is not in its possession being provided to the Securities
Administrator or (ii) incomplete, inaccurate or untimely information being
provided to the Securities Administrator. Absent receipt of information
regarding any sale of Certificates, including the price, amount of proceeds and
date of sale from the beneficial owner thereof or the Depositor, the Securities
Administrator may assume there is no secondary market trading of WHFIT
interests.
To the extent required by the WHFIT Regulations, the Securities
Administrator shall use reasonable efforts to publish on an appropriate website
the CUSIP Numbers for the Certificates that represent ownership of a WHFIT. The
CUSIP Numbers so published will represent the Rule 144A CUSIP Numbers. The
Securities Administrator shall make reasonable good faith efforts to keep the
website accurate and updated to the extent CUSIP Numbers have been received. The
Securities Administrator shall not be liable for investor reporting delays that
result from the receipt of inaccurate or untimely CUSIP Number information.
The Securities Administrator shall be entitled to additional
reasonable compensation for changes in reporting required in respect of the
WHFIT Regulations that arise as a result of a change in the WHFIT Regulations or
a change in interpretation of the WHFIT Regulations by the IRS, if such change
requires, in the Securities Administrator's sole discretion, a material increase
in the Securities Administrator's reporting obligations in respect of the
related Grantor Trust.
Section 8.13 Annual Statement as to Compliance. The Master Servicer
and Securities Administrator shall deliver (or otherwise make available) and
cause any Subservicer or Subcontractor that meets the criteria in Item
1108(a)(2)(i), (ii) or (iii) of Regulation AB to deliver, to the Depositor, the
Rating Agencies on or before March 15th of each calendar year, commencing in
2009, an Officer's Certificate stating, as to each signatory thereof, that (i) a
review of the activities of the Master Servicer and Securities Administrator, as
applicable, during the preceding calendar year and of its performance under this
Agreement has been made under such officers' supervision, and (ii) to the best
of such officers' knowledge, based on such review, the Master Servicer and
Securities Administrator, as applicable, has fulfilled all of its obligations
under this Agreement in all material respects, throughout such year, or, if
there has been a default in the fulfillment of any such obligation in any
material respect, specifying each such default known to such officers and the
nature and status thereof. Promptly after receipt of each such Officer's
Certificate, the Depositor shall review such Officer's Certificate and, if
applicable, consult with the Master Servicer and Securities Administrator, as
applicable, as to the nature of any defaults by the Master Servicer and
Securities Administrator, as applicable, in the fulfillment of any of the Master
Servicer's and Securities Administrator's obligations, as applicable. The
obligations of the Master Servicer and Securities Administrator, as applicable,
under this Section apply to each Master Servicer and Securities Administrator,
that acted as Master Servicer and Securities Administrator during the applicable
period, whether or not such Person is acting as the Master Servicer and
Securities Administrator at the time such Officer's Certificate is required to
be delivered.
Section 8.14 Annual Reports on Assessment of Compliance with
Servicing Criteria; Annual Independent Public Accountants' Attestation Report.
(a) Not later than March 15th of each calendar year commencing in
2009, the Master Servicer, Securities Administrator and Custodian shall deliver,
and shall cause each Subcontractor utilized by the Master Servicer, Securities
Administrator and Custodian, as applicable, and determined by the Master
Servicer, Securities Administrator and Custodian, as applicable, pursuant to
Section 8.01 to be "participating in a servicing function" within the meaning of
Item 1122 of Regulation AB (in each case, a "Servicing Function Participant"),
to deliver, each at its own expense, to the Depositor, a report on an assessment
of compliance with the Servicing Criteria applicable to it that contains (A) a
statement by such party of its responsibility for assessing compliance with the
Servicing Criteria applicable to it, (B) a statement that such party used the
Servicing Criteria to assess compliance with the applicable Servicing Criteria,
(C) such party's assessment of compliance with the applicable Servicing Criteria
as of and for the period ending the end of the fiscal year covered by the Form
10-K required to be filed pursuant to Section 8.15, including, if there has been
any material instance of noncompliance with the applicable Servicing Criteria, a
discussion of each such failure and the nature and status thereof, and (D) a
statement that a registered public accounting firm has issued an attestation
report on such Person's assessment of compliance with the applicable Servicing
Criteria as of and for such period. Each such assessment of compliance report
shall be addressed to the Depositor and signed by an authorized officer of such
Person, and shall address each of the applicable Servicing Criteria set forth on
Exhibit O hereto, or as set forth in the notification furnished to the Depositor
pursuant to Section 8.14(c). The Master Servicer, Securities Administrator and
Custodian each hereby acknowledges and agrees that its assessments of compliance
will cover the items identified on Exhibit O hereto as being covered by the
Master Servicer, Securities Administrator and Custodian, as applicable. The
parties to this Agreement acknowledge that where a particular Servicing Criteria
has multiple components, each party's assessment of compliance and related
attestation of compliance) will relate only to those components that are
applicable to such party. Promptly after receipt of each such report on
assessment of compliance, the Depositor shall review each such report and, if
applicable, consult with the Master Servicer, Securities Administrator or
Custodian, as applicable, as to the nature of any material instance of
noncompliance with the Servicing Criteria applicable to it (and each Servicing
Function Participant engaged or utilized by the Master Servicer, Securities
Administrator or Custodian, as applicable), as the case may be. The Custodian
shall not be required to cause the delivery of any such assessments by March
15th in any given year so long as Form 10-K is not required to be filed in
respect of the Trust for the preceding calendar year.
(b) Not later than March 15th of each calendar year commencing in
2009, the Master Servicer, Securities Administrator and Custodian shall cause,
and the Master Servicer, Securities Administrator and Custodian shall cause each
Servicing Function Participant utilized by such Person, to cause, each at its
own expense, a registered public accounting firm (which may also render other
services to such party) and that is a member of the American Institute of
Certified Public Accountants to furnish a report to the Depositor, with a copy
to the Rating Agencies, to the effect that (i) it has obtained a representation
regarding certain matters from the management of such Person, which includes an
assertion that such Person has complied with the Servicing Criteria applicable
to it pursuant to Section 8.14(a) and (ii) on the basis of an examination
conducted by such firm in accordance with standards for attestation engagements
issued or adopted by the PCAOB, that attests to and reports on such Person's
assessment of compliance with the Servicing Criteria applicable to it. In the
event that an overall opinion cannot be expressed, such registered public
accounting firm shall state in such report why it was unable to express such an
opinion. Each such related accountant's attestation report shall be made in
accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the
Securities Act and the Exchange Act. Such report must be available for general
use and not contain restricted use language. The Custodian shall not be required
to cause the delivery of any such attestation required by this paragraph in any
given year so long as Form 10-K is not required to be filed in respect of the
Trust for the preceding calendar year.
(c) No later than February 1 of each fiscal year, commencing in
2009, the Master Servicer, Securities Administrator and Custodian shall notify
the Depositor as to the name of each Servicing Function Participant utilized by
it during the preceding calendar year, and each such notice will specify what
specific Servicing Criteria will be addressed in the report on assessment of
compliance prepared by such Servicing Function Participant in each case, to the
extent of any change from the prior year's notice, if any. When the Master
Servicer, Securities Administrator or Custodian submits its assessment pursuant
to Section 8.14(a), the Master Servicer, Securities Administrator or Custodian
will also at such time include the assessment (and related attestation pursuant
to Section 8.14(b)) of each Servicing Function Participant utilized by it.
Section 8.15 Periodic Filings. (a) The Master Servicer, Securities
Administrator, Custodian and Trustee shall reasonably cooperate with the
Depositor in connection with the reporting requirements of the Trust under the
Exchange Act. The Securities Administrator shall prepare for execution by the
Master Servicer on behalf of the Depositor any Form 8-K (other than any Form 8-K
related to the filing of this Agreement and any amendments thereto), Form 10-D
and Form 10-K required by the Exchange Act and the rules and regulations of the
Commission thereunder, in order to permit the timely filing thereof, and the
Securities Administrator shall file (via the Commission's Electronic Data
Gathering and Retrieval System) such Forms executed by the Master Servicer.
(b) Within 15 days after each Distribution Date (subject to
permitted extensions under the Exchange Act), the Securities Administrator shall
prepare and file, and the Master Servicer shall sign, on behalf of the Trust any
Form 10-D required by the Exchange Act, in form and substance as required by the
Exchange Act. The Securities Administrator shall file each Form 10-D with a copy
of the related Monthly Statement attached thereto. Any disclosure in addition to
the Monthly Statement that is required to be included on Form 10-D ("Additional
Form 10-D Disclosure") shall be reported to the Depositor and the Securities
Administrator by the parties set forth on Exhibit P and directed and approved by
the Depositor pursuant to the following paragraph and the Securities
Administrator shall compile such disclosure pursuant to the following paragraph.
The Securities Administrator will have no duty or liability for any failure
hereunder to determine or prepare any Additional Form 10-D Disclosure, except as
set forth in the next paragraph.
As set forth on Exhibit P hereto, within 5 calendar days after the
related Distribution Date, (i) certain parties to this Agreement shall be
required to provide to the Securities Administrator and the Depositor, to the
extent known by such applicable parties, in ▇▇▇▇▇-compatible form, or in such
other form as otherwise agreed upon by the Securities Administrator and such
party, the form and substance of any Additional Form 10-D Disclosure, if
applicable (together with an Additional Disclosure Notification in the form of
Exhibit S hereto called "Additional Disclosure Notification") and (ii) the
Depositor will approve, as to form and substance, or disapprove, as the case may
be, the inclusion of the Additional Form 10-D Disclosure on Form 10-D. The
Securities Administrator has no duty under this Agreement to monitor or enforce
the performance by the parties listed on Exhibit P (other than with respect to
the Securities Administrator) of their duties under this paragraph or
proactively solicit from such parties any Additional Form 10-D Disclosure
information; provided, however, the Securities Administrator shall cooperate
with the Depositor in a reasonable manner in order for the Depositor to comply
with its reporting obligations under the Exchange Act as set forth in Section
8.15(a). The Servicer shall be responsible for any reasonable fees and expenses
assessed or incurred by the Securities Administrator in connection with any
Additional Form 10-D Disclosure on Form 10-D pursuant to this Section 8.15(b).
After preparing the Form 10-D, the Securities Administrator shall
forward electronically a copy of the Form 10-D to the Depositor for review and
verification by the Depositor. No later than two Business Days following the
10th calendar day after the related Distribution Date, a duly authorized
representative of the Master Servicer shall sign the Form 10-D and return an
electronic or fax copy of such signed Form 10-D (with an original executed hard
copy to follow by overnight mail) to the Securities Administrator and the
Depositor, and no later than 5:00 p.m. New York City time on the 15th calendar
day after such Distribution Date, the Securities Administrator shall file such
Form 10-D with the Commission. If a Form 10-D cannot be filed on time or if a
previously filed Form 10-D needs to be amended, the Securities Administrator
will follow the procedures set forth in Section 8.15(e)(ii). Promptly (but no
later than one Business Day) after filing with the Commission, the Securities
Administrator will make available on its internet website (as of the Closing
Date located at ▇▇▇.▇▇▇▇▇▇▇.▇▇▇) a final executed copy of each Form 10-D
prepared and filed by the Securities Administrator. The signing party at the
Master Servicer can be contacted at the Master Servicer's address for notices
set forth in Section 12.05(c)(iii), or such other address as to which the Master
Servicer has provided prior written notice to the Securities Administrator. The
parties to this Agreement acknowledge that the performance by the Master
Servicer and the Securities Administrator of their duties under this Section
8.15(b) related to the timely preparation, execution and filing of Form 10-D is
contingent upon such parties and the Servicer and any Subservicer or Servicing
Function Participant engaged by the Servicer strictly observing all applicable
deadlines in the performance of their duties under this Section 8.15(b) and any
other applicable agreement. Neither the Master Servicer nor the Securities
Administrator shall have any liability for any loss, expense, damage, or claim
arising out of or with respect to any failure to properly prepare, execute
and/or timely file such Form 10-D, where such failure results from the
Securities Administrator's inability or failure to obtain or receive, on a
timely basis, any information from any party hereto (other than the Securities
Administrator or any Subcontractor utilized by the Securities Administrator) or
the Servicer or any Subservicer or Servicing Function Participant engaged by the
Servicer needed to prepare, arrange for execution or file such Form 10-D, not
resulting from its own negligence, bad faith or willful misconduct.
Form 10-D requires the registrant to indicate (by checking "yes" or
"no") that it "(1) has filed all reports required to be filed by Section 13 or
15(d) of the Exchange Act during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days." The Depositor hereby
represents to the Securities Administrator that the Depositor has filed or
caused to be filed all such required reports during the preceding 12 months and
that it has been subject to such filing requirement for the past 90 days. The
Depositor shall notify the Securities Administrator in writing no later than the
fifth calendar day after the related Distribution Date with respect to the
filing of a report on Form 10-D if the answer to the questions should be no. The
Securities Administrator shall be entitled to rely on such representations in
preparing, executing and/or filing any such report.
(c) On or before 90 days after the end of each fiscal year of the
Trust or such earlier date as may be required by the Exchange Act (the "10-K
Filing Deadline"), commencing in March 2009, the Securities Administrator shall
prepare, the Master Servicer shall execute, and the Securities Administrator
shall file on behalf of the Trust a Form 10-K, in form and substance as required
by the Exchange Act. Each such Form 10-K shall include the following items, in
each case to the extent they have been delivered to the Securities Administrator
within the applicable time frames set forth in this Agreement or the IndyMac
Servicing Agreement, as the case may be (i) an annual compliance statement for
the Securities Administrator, the Master Servicer, the Servicer and each
Subservicer engaged by the Servicer, as set forth under Section 8.13, and under
the IndyMac Servicing Agreement, (ii)(A) the annual reports on assessment of
compliance with servicing criteria for the Securities Administrator, the Master
Servicer, the Servicer, the Custodian, each Servicing Function Participant
utilized by the Servicer, the Custodian, the Securities Administrator or the
Master Servicer, as set forth under Section 8.14 and the IndyMac Servicing
Agreement, and (B) if any such report on assessment of compliance with servicing
criteria identifies any material instance of noncompliance, disclosure
identifying such instance of noncompliance, or such report on assessment of
compliance with Servicing Criteria is not included as an exhibit to such Form
10-K, disclosure that such report is not included and an explanation why such
report is not included, (iii)(A) the registered public accounting firm
attestation report for the Master Servicer, the Securities Administrator, the
Servicer, the Custodian, each Servicing Function Participant utilized by the
Custodian, the Servicer, the Securities Administrator or the Master Servicer, as
set forth under Section 8.14 and under the applicable Servicing Agreement, and
(B) if any registered public accounting firm attestation report set forth under
Section 8.14 identifies any material instance of noncompliance, disclosure
identifying such instance of noncompliance, or if any such registered public
accounting firm attestation report is not included as an exhibit to such Form
10-K, disclosure that such report is not included and an explanation why such
report is not included, and (iv) a certification in the form attached hereto as
Exhibit J, with such changes as may be necessary or appropriate as a result of
changes promulgated by the Commission (the "Sarbanes Certification"), which
shall be signed by the senior officer of the Master Servicer in charge of the
master servicing function. Any disclosure or information in addition to (i)
through (iv) above that is required to be included on Form 10-K ("Additional
Form 10-K Disclosure") shall be reported to the Depositor and the Securities
Administrator by the parties set forth on Exhibit Q and directed and approved by
the Depositor pursuant to the following paragraph and the Securities
Administrator shall compile such disclosure pursuant to the following paragraph.
The Securities Administrator will have no duty or liability for any failure
hereunder to determine or prepare any Additional Form 10-K Disclosure, except as
set forth in the next paragraph.
As set forth on Exhibit Q hereto, no later than March 1 of each year
(or, in the case of the Servicer, March 5th of each year) that the Trust is
subject to the Exchange Act reporting requirements, commencing in 2009, the
parties, to the extent set forth on Exhibit Q, shall be required to provide to
the Securities Administrator and the Depositor, to the extent known by such
applicable parties, in ▇▇▇▇▇-compatible form, or in such other form as otherwise
agreed upon by the Securities Administrator and such party, the form and
substance of any Additional Form 10-K Disclosure set forth on Exhibit Q
applicable to such party (and shall include with such Additional Form 10-K
Disclosure an Additional Disclosure Notification in the form attached hereto as
Exhibit S), and the Depositor will approve, as to form and substance, or
disapprove, as the case may be, the inclusion of the Additional Form 10-K
Disclosure on Form 10-K. The Securities Administrator has no duty under this
Agreement to monitor or enforce the performance by the parties listed on Exhibit
Q (other than with respect to the Securities Administrator) of their duties
under this paragraph or proactively solicit from such parties any Additional
Form 10-K Disclosure information; provided, however, the Securities
Administrator shall cooperate with the Depositor in a reasonable manner in order
for the Depositor to comply with its reporting obligations under the Exchange
Act as set forth in Section 8.15(a). The Servicer will be responsible for any
reasonable fees and expenses assessed or incurred by the Securities
Administrator in connection with including any Additional Form 10-K Disclosure
on Form 10-K pursuant to this paragraph. The Securities Administrator shall
compile all such information provided to it in a Form 10-K prepared by it.
After preparing the Form 10-K, the Securities Administrator shall
forward electronically a copy of the Form 10-K to the Depositor for approval.
Form 10-K requires the registrant to indicate (by checking "yes" or "no") that
it "(1) has filed all reports required to be filed by Section 13 or 15(d) of the
Exchange Act during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days." The Depositor hereby represents to
the Securities Administrator that the Depositor has filed all such required
reports during the preceding 12 months and that it has been subject to such
filing requirement for the past 90 days. The Depositor shall notify the
Securities Administrator in writing, no later than the 15th calendar day of
March in any year in which the Trust is subject to the reporting requirements of
the Exchange Act, if the answer to the questions should be "no." The Securities
Administrator shall be entitled to rely on such representations in preparing
and/or filing any such Form 10-K. No later than 5:00 p.m. EST on the 4th
Business Day prior to the 10-K Filing Deadline, a senior officer of the Master
Servicer in charge of the master servicing function shall sign the Form 10-K and
return an electronic or fax copy of such signed Form 10-K (with an original
executed hard copy to follow by overnight mail) to the Securities Administrator.
If a Form 10-K cannot be filed on time or if a previously filed Form 10-K needs
to be amended, the Securities Administrator will follow the procedures set forth
in Section 8.15(e)(ii). Promptly (but no later than one Business Day) after
filing with the Commission, the Securities Administrator will make available on
its internet website a final executed copy of each Form 10-K prepared and filed
by the Securities Administrator. The parties to this Agreement acknowledge that
the performance by the Master Servicer and the Securities Administrator of its
duties under this Section 8.15(c) related to the timely preparation, execution
and filing of Form 10-K is contingent upon such parties and the Servicer (and
any Subservicer or Servicing Function Participant engaged by the Servicer)
observing all applicable deadlines in the performance of their duties under this
Section 8.15(c), Section 8.15(d), Section 8.13 and Section 8.14 or any other
applicable agreement. Neither the Master Servicer nor the Securities
Administrator shall have any liability for any loss, expense, damage, claim
arising out of or with respect to any failure to properly prepare, execute
and/or timely file such Form 10-K, where such failure results from the
Securities Administrator's inability or failure to receive, on a timely basis,
any information from any party hereto or any Subservicer or Servicing Function
Participant engaged by any such party hereto (other than the Securities
Administrator or any Servicing Function Participant utilized by the Securities
Administrator) needed to prepare, arrange for execution or file such Form 10-K,
not resulting from its own negligence, bad faith or willful misconduct.
(d) Each Form 10-K shall include a Sarbanes Certification, required
to be included therewith pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The Securities
Administrator shall provide, and shall cause any Servicing Function Participant
engaged by it to provide, to the Person who signs the Sarbanes Certification
(the "Certifying Person"), by March 1 (with a ten-calendar day cure period) of
each year in which the Trust is subject to the reporting requirements of the
Exchange Act and otherwise within a reasonable period of time upon request, a
certification (each, a "Back-Up Certification"), in the form attached hereto as
Exhibit K, upon which the Certifying Person, the entity for which the Certifying
Person acts as an officer, and such entity's officers, directors and Affiliates
(collectively with the Certifying Person, "Certification Parties") can
reasonably rely. The senior officer of the Master Servicer in charge of the
master servicing function shall serve as the Certifying Person on behalf of the
Trust. Such officer of the Certifying Person can be contacted by e-mail at
▇▇▇.▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇ or by facsimile at ▇▇▇-▇▇▇-▇▇▇▇. In the
event any such party or any Servicing Function Participant engaged by such party
is terminated or resigns pursuant to the terms of this Agreement, or any
applicable sub-servicing agreement, as the case may be, such party shall provide
a Back-Up Certification to the Certifying Person pursuant to this Section
8.15(d) with respect to the period of time it was subject to this Agreement or
any applicable sub-servicing agreement, as the case may be. Notwithstanding the
foregoing, (i) the Master Servicer and the Securities Administrator shall not be
required to deliver a Back-Up Certification to each other if both are the same
Person and the Master Servicer is the Certifying Person and (ii) the Master
Servicer shall not be obligated to sign the Sarbanes Certification in the event
that it does not receive any Back-Up Certification required to be furnished to
it pursuant to this section or the IndyMac Servicing Agreement or Custodial
Agreement.
(e) (i) The obligations set forth in paragraphs (a) through (d) of
this Section shall only apply with respect to periods for which reports are
required to be filed with respect to the Trust under the Exchange Act. On or
prior to January 30 of the first year in which the Securities Administrator is
able to do so under applicable law, the Securities Administrator shall prepare
and file a Form 15 Suspension Notification with respect to the Trust, with a
copy to the Depositor. At the start of any fiscal year, including any fiscal
year after the filing of a Form 15 Suspension Notification, if the number of
Holders of the Offered Certificates of record exceeds the number set forth in
Section 15(d) of the Exchange Act or the regulations promulgated pursuant
thereto which would cause the Trust to again become subject to the reporting
requirements of the Exchange Act, the Securities Administrator shall recommence
preparing and filing reports on Form 10-K, Form 10-D and Form 8-K as required
pursuant to this Section 8.15 and the parties hereto shall again have the
obligations set forth in this Section 8.15.
(ii) In the event that the Securities Administrator is unable to
timely file with the Commission all or any required portion of any Form
8-K, Form 10-D or Form 10-K required to be filed pursuant to this
Agreement because required disclosure information was either not delivered
to it or delivered to it after the delivery deadlines set forth in this
Agreement, the Securities Administrator will promptly notify
electronically the Depositor. In the case of Form 10-D and Form 10-K, the
Depositor and Securities Administrator will thereupon prepare and file,
and the other parties shall cooperate in connection with such preparation
and filing, a Form 12b-25 and a Form 10-D/A and Form 10-K/A as applicable,
pursuant to Rule 12b-25 of the Exchange Act. In the case of Form 8-K, the
Securities Administrator will, upon receipt of all required Form 8-K
Disclosure Information and, upon the approval and direction of the
Depositor, include such disclosure information on the next succeeding Form
10-D. In the event that any previously filed Form 8-K, Form 10-D or Form
10-K needs to be amended, in connection with any Additional Form 10-D
Disclosure (other than, in the case of Form 10-D, for the purpose of
restating any Monthly Statement), Additional Form 10-K Disclosure or Form
8-K Disclosure Information, the Securities Administrator will notify the
Depositor and such other parties to the transaction as are affected by
such amendment, and the Depositor and the Securities Administrator shall
prepare and file, and such other parties will cooperate in connection with
such preparation and filing, any necessary Form 8-K/A, Form 10-D/A or Form
10-K/A. Any Form 15, Form 12b-25 or any amendment to Form 8-K, Form 10-D
or Form 10-K shall be signed by a duly authorized representative or a
senior officer in charge of master servicing of the Master Servicer, as
applicable. The parties to this Agreement acknowledge that the performance
by the Master Servicer and Securities Administrator of their duties under
this Section 8.15(e) related to the timely preparation, execution and
filing of Form 15, a Form 12b-25 or any amendment to Form 8-K, Form 10-D
or Form 10-K is contingent upon each such party and the Servicer observing
all applicable deadlines in the performance of their duties under the
IndyMac Servicing Agreement. Neither the Master Servicer nor the
Securities Administrator shall have any liability for any loss, expense,
damage, claim arising out of or with respect to any failure to properly
prepare, execute and/or timely file any such Form 15, Form 12b-25 or any
amendments to Form 8-K, Form 10-D or Form 10-K, where such failure results
from the Securities Administrator's inability or failure to obtain or
receive, on a timely basis, any information from any party hereto, the
Servicer or any Subservicer or any Servicing Function Participant engaged
by any such party hereto or under the IndyMac Servicing Agreement (other
than the Securities Administrator or any Servicing Function Participant
utilized by the Securities Administrator) needed to prepare, arrange for
execution or file such Form 15, Form 12b-25 or any amendments to Form 8-K,
Form 10-D or Form 10-K, not resulting from its own negligence, bad faith
or willful misconduct.
Within four (4) Business Days after the occurrence of an event
requiring disclosure on Form 8-K (each such event, a "Reportable Event"), and
also if requested by the Depositor, the Securities Administrator shall prepare
and file on behalf of the Trust any Form 8-K, as required by the Exchange Act,
provided that the Depositor shall file the initial Form 8-K in connection with
the issuance of the Certificates. Any disclosure or information related to a
Reportable Event or that is otherwise required to be included on Form 8-K
(other than the initial Form 8-K) ("Form 8-K Disclosure Information") shall be
reported to the Depositor and the Securities Administrator by the parties set
forth on Exhibit R and directed and approved by the Depositor pursuant to the
following paragraph. The Securities Administrator will have no duty or
liability for any failure hereunder to determine or prepare any Form 8-K
Disclosure Information or any Form 8-K, except as set forth in the next
paragraph.
As set forth on Exhibit R hereto, for so long as the Trust is
subject to the Exchange Act reporting requirements, no later than the end of
business (New York City time) on the 2nd Business Day after the occurrence of a
Reportable Event the parties, to the extent set forth on Exhibit R, shall be
required to provide to the Securities Administrator and the Depositor, to the
extent known by such applicable parties, in ▇▇▇▇▇-compatible form, or in such
other form as otherwise agreed upon by the Securities Administrator and such
party, the form and substance of any Form 8-K Disclosure Information, if
applicable (and shall include with such Form 8-K Disclosure Information), an
Additional Disclosure Notification in the form attached hereto as Exhibit S, and
the Depositor will approve, as to form and substance, or disapprove, as the case
may be, the inclusion of the Form 8-K Disclosure Information on Form 8-K. The
Securities Administrator has no duty under this Agreement to monitor or enforce
the performance by the parties listed on Exhibit R (other than with respect to
the Securities Administrator) of their duties under this paragraph or
proactively solicit or procure from such parties any Form 8-K Disclosure
Information; provided, however, the Securities Administrator shall cooperate
with the Depositor in a reasonable manner in order for the Depositor to comply
with its reporting obligations under the Exchange Act as set forth in Section
8.15(a). The Servicer will be responsible for any reasonable fees and expenses
assessed or incurred by the Securities Administrator in connection with any Form
8-K Disclosure Information on Form 8-K pursuant to this paragraph. The
Securities Administrator shall compile all such information provided to it in a
Form 8-K prepared by it.
After preparing the Form 8-K, the Securities Administrator shall no
later than 12:00 noon (New York City time) on the 3rd Business Day after the
Reportable Event but in no case without having had notice for 24 hours forward
electronically a copy of the Form 8-K to the Depositor for review. No later than
12:00 noon (New York City time) on the 4th Business Day after the Reportable
Event, a duly authorized representative of the Master Servicer shall sign the
Form 8-K and return an electronic or fax copy of such signed Form 8-K (with an
original executed hard copy to follow by overnight mail) to the Securities
Administrator. If a Form 8-K cannot be filed on time or if a previously filed
Form 8-K needs to be amended, the Securities Administrator will follow the
procedures set forth in this Section 8.15(e)(ii). Promptly (but no later than
one Business Day) after filing with the Commission, the Securities Administrator
will make available on its internet website a final executed copy of each Form
8-K prepared and filed by the Securities Administrator. The signing party at the
Master Servicer can be contacted at the Master Servicer's address for notices
set forth in Section 12.05, or such other address as to which the Depositor has
provided prior written notice to the Securities Administrator. The parties to
this Agreement acknowledge that the performance by the Master Servicer and the
Securities Administrator of their duties under this Section 8.15(e) related to
the timely preparation, arrangement for execution and filing of Form 8-K is
contingent upon such parties and the Servicer and any Subservicer or Servicing
Function Participant engaged by the Servicer observing all applicable deadlines
in the performance of their duties under this Section 8.15(e) or any other
applicable agreement. Neither the Master Servicer nor the Securities
Administrator shall have any liability for any loss, expense, damage, claim
arising out of or with respect to any failure to properly prepare, execute
and/or timely file such Form 8-K, where such failure results from the Securities
Administrator's inability or failure to obtain or receive, on a timely basis,
any information from any party hereto (other than the Securities Administrator
or any Subcontractor utilized by the Securities Administrator) the Servicer or
any Subservicer or Servicing Function Participant engaged by the Servicer needed
to prepare, arrange for execution or file such Form 8-K, not resulting from its
own negligence, bad faith or willful misconduct.
(f) The Securities Administrator shall have no liability for any
loss, expense, damage or claim arising out of or resulting from (i) the accuracy
or inaccuracy of any Additional Form 10-D Disclosure, Additional Form 10-K
Disclosure or Form 8-K Disclosure Information (excluding any information therein
provided by the Securities Administrator or any Subcontractor utilized by the
Securities Administrator) provided to the Securities Administrator in connection
with the preparation of Forms 10-D, 10-K and 8-K pursuant to this Section 8.15,
or (ii) the failure of the Depositor to approve for filing any Forms 10-D, 10-K
and 8-K required to be prepared by the Securities Administrator pursuant to this
Section 8.15, in either case, not resulting from the Securities Administrator's
own negligence, bad faith or willful misconduct.
Section 8.16 [Reserved]
Section 8.17 Monthly Data File. The Securities Administrator shall
make available on the Securities Administrator's internet website a monthly loan
level data file (based solely on information provided by the Servicer)
containing data provided to the Securities Administrator by the Servicer,
available to those who are permitted to access the website, including the Rating
Agencies. Such data at a minimum shall contain the fields referenced in Exhibit
U.
Section 8.18 Custodial Responsibilities. (a) The Custodian shall
provide access to the Mortgage Loan Documents in possession of the Custodian
regarding the related Mortgage Loans and REO Property and the servicing thereof
to the Trustee, the Master Servicer, the Securities Administrator, the
Certificateholders, the FDIC and the supervisory agents and examiners of the
FDIC, such access being afforded only upon reasonable prior written request and
during normal business hours at the office of the Custodian. The Custodian shall
allow representatives of the above entities to photocopy any of the records and
documentation and shall provide equipment for that purpose at the expense of the
person requesting such access.
(b) The Custodian may resign from its obligations hereunder upon 60
days' prior written notice to the Trustee, the Depositor, the Master Servicer,
the Securities Administrator and the Servicer. Such resignation shall take
effect upon (i) the appointment of a successor Custodian reasonably acceptable
to the Depositor within such 60 day period; and (ii) delivery of all Mortgage
Loan Files to the successor Custodian. The Trustee shall have the right, but not
the obligation, to become the successor Custodian. If no successor Custodian is
appointed within 60 days after written notice of the Custodian's resignation is
received by the Trustee, the Custodian may petition a court of competent
jurisdiction to appoint a successor Custodian.
Upon such resignation and appointment of a successor Custodian, the
predecessor Custodian shall, at the predecessor Custodian's expense, promptly
transfer to the successor Custodian, as directed in writing by the Trustee, all
applicable Mortgage Files being administered under this Agreement.
Notwithstanding the foregoing, the Trust Fund, not the Custodian, shall bear the
costs relating to the transfer of Mortgage Files if the Custodian shall resign
with cause (including a Custodian's resignation due to the failure of the
Custodian to be paid all fees due to such Custodian hereunder).
(c) For so long as reports are required to be filed with the
Commission under the Exchange Act with respect to the Trust, the Custodian shall
not utilize any Subcontractor for the performance of its duties hereunder if
such Subcontractor would be "participating in the servicing function" within the
meaning of Item 1122 of Regulation AB without the prior written consent of the
Depositor, in its sole discretion.
(d) The Custodian shall indemnify the Depositor, the Purchaser and
any director, officer, employee, agent and affiliate of the Depositor or the
Purchaser and hold them harmless against any and all claims, losses, damages,
penalties, fines, forfeitures, reasonably and necessary legal fees and related
costs, judgments, and any other costs, fees and expenses that any of them may
sustain in any way related to (i) the failure of the Custodian to deliver when
required any assessment of compliance required to be delivered by the Custodian
or (ii) any material misstatement or omission contained in any assessment of
compliance provided to be delivered by the Custodian. This indemnity shall
survive the termination of this Agreement or the earlier resignation or removal
of the Custodian.
Section 8.19 Limitations on Custodial Responsibilities.
(a) The Custodian shall be under no duty or obligation to inspect,
review or examine the Mortgage Files to determine that the contents thereof are
appropriate for the represented purpose or that they have been actually recorded
or that they are other than what they purport to be on their face.
(b) The Custodian shall not be responsible for preparing or filing
any reports or returns relating to federal, state or local income taxes with
respect to this Agreement, other than for the Custodian's compensation or for
reimbursement of expenses.
(c) The Custodian shall not be responsible or liable for, and makes
no representation or warranty with respect to, the validity, adequacy,
perfection or priority of any lien upon or security interest in any Mortgage
File.
(d) The duties and obligations of the Custodian shall only be such
as are expressly set forth in this Agreement or as set forth in a written
amendment to this Agreement executed by the parties hereto or their successors
and assigns. In the event that any provision of this Agreement implies or
requires that action or forbearance be taken by a party, but is silent as to
which party has the duty to act or refrain from acting, the parties agree that
the Custodian shall not be the party required to take the action or refrain from
acting. In no event shall the Custodian have any responsibility to ascertain or
take action except as expressly provided herein.
(e) The Custodian makes no representations and shall have no
responsibilities (except as expressly set forth herein) as to the validity,
sufficiency, value, genuineness, ownership or transferability of any of the
Mortgage Loans.
(f) The Custodian shall not be liable for any error of judgment, or
for any act done or step taken or omitted by it, in good faith, or for any
mistake of fact or law, or for anything that it may do or refrain from doing in
connection therewith, except in the case of its negligent performance or
omission or its bad faith or willful misfeasance.
(g) The Custodian shall not be responsible to verify (i) the
validity, legality, enforceability, sufficiency, due authorization or
genuineness of any document in the Mortgage File or of any Mortgage Loans or
(ii) the collectibility, insurability, effectiveness including the authority or
capacity of any Person to execute or issue any document in the Mortgage File, or
suitability of any Mortgage Loans.
(h) The Custodian shall have no obligation to verify the receipt of
any such documents the existence of which was not made known to the Custodian by
receipt of the Mortgage File.
(i) The Custodian shall have no obligation to determine whether the
recordation of any document is necessary.
(j) Except as set forth in this Agreement, in no event shall the
Custodian or its directors, affiliates, officers, agents, and employees be held
liable for any special, indirect or consequential damages resulting from any
action taken or omitted to be taken by it or them hereunder or in connection
herewith even if advised of the possibility of such damages.
(k) In order to comply with laws, rules, regulations and executive
orders in effect from time to time applicable to banking institutions, including
those relating to the funding of terrorist activities and money laundering
("Applicable Law"), the Custodian is required to obtain, verify and record
certain information relating to individuals and entities which maintain a
business relationship with the Custodian. Accordingly, each of the parties
agrees to provide to the Custodian upon its request from time to time such
identifying information and documentation as may be available for such party in
order to enable the Custodian to comply with Applicable Law.
Any Person into which the Custodian may be merged or consolidated,
or any Person resulting from any merger or consolidation to which the Custodian
shall be a party, or any person succeeding to the business of the Custodian,
shall be the successor of the Custodian 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.
ARTICLE IX
ADMINISTRATION OF THE
MORTGAGE LOANS BY THE MASTER SERVICER
Section 9.01 Duties of the Master Servicer; Enforcement of
Servicer's Obligations. (a) The Master Servicer, on behalf of the Trustee, the
Securities Administrator, the Depositor and the Certificateholders, shall
monitor the performance of the Servicer's obligations under the IndyMac
Servicing Agreement, and (except as set forth below) shall use its reasonable
good faith efforts to cause the Servicer to duly and punctually perform its
duties and obligations thereunder. Upon the occurrence of an Event of Default of
which a Responsible Officer of the Master Servicer has actual knowledge, the
Master Servicer shall promptly notify the Securities Administrator and the
Trustee and shall specify in such notice the action, if any, the Master Servicer
plans to take in respect of such default. So long as an Event of Default shall
occur and be continuing, the Master Servicer shall take the actions specified in
Article VII.
If (i) the Servicer reports a delinquency on a monthly report and
(ii) the Servicer, by 11 a.m. (New York Time) on the Servicer Remittance Date,
neither makes an Advance nor provides the Securities Administrator and the
Master Servicer with an Officer's Certificate certifying that such an Advance
would be a Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance, then
the Master Servicer shall, pursuant to Section 7.02 in its capacity as successor
servicer, deposit in the Distribution Account not later than the Business Day
immediately preceding the related Distribution Date an Advance in an amount
equal to the difference between (x) with respect to each Scheduled Payment due
on a Mortgage Loan that is delinquent (other than Relief Act Interest
Shortfalls) and for which the Servicer was required to make an Advance pursuant
to this Agreement and (y) amounts deposited in the Collection Account to be used
for Advances with respect to such Mortgage Loan, except to the extent the Master
Servicer determines any such Advance to be a Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance. Subject to the foregoing and Section 7.02, the
Master Servicer shall continue to make such Advances for so long as the Servicer
is required to do so under the IndyMac Servicing Agreement. If applicable, on
the Business Day immediately preceding the Distribution Date, the Master
Servicer shall deliver an Officer's Certificate to the Trustee and the
Securities Administrator stating that the Master Servicer elects not to make an
Advance in a stated amount and detailing the reason(s) it deems the Advance to
be a Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance. Any amounts
deposited by the Master Servicer pursuant to this Section 9.01 shall be net of
the Expense Fee for the related Mortgage Loans.
(b) The Master Servicer shall pay the costs of monitoring the
Servicer as required hereunder (including costs associated with (i) termination
of the Servicer, (ii) the appointment of a successor servicer or (iii) the
transfer to and assumption of, the servicing by the Master Servicer) and shall,
to the extent permitted by the IndyMac Servicing Agreement, seek reimbursement
therefor initially from the terminated Servicer. In the event the full costs
associated with the transition of servicing responsibilities to the Master
Servicer or to a successor servicer are not paid for by the predecessor or
successor Servicer (provided such successor Servicer is not the Master
Servicer), the Master Servicer may be reimbursed therefor by the Trust for costs
incurred by the Master Servicer associated with any such transfer of servicing
duties from the Servicer to the Master Servicer or any other successor servicer.
(c) If the Master Servicer assumes the servicing with respect to any
of the Mortgage Loans, it will not assume liability for the representations and
warranties of the Servicer it replaces or for any errors or omissions of the
Servicer.
(d) Neither the Depositor nor the Securities Administrator shall
consent to the assignment by the Servicer of the Servicer's rights and
obligations under this Agreement without the prior written consent of the Master
Servicer, which consent shall not be unreasonably withheld.
Section 9.02 Maintenance of Fidelity Bond and Errors and Omissions
Insurance. The Master Servicer, at its expense, shall maintain in effect a
blanket fidelity bond and an errors and omissions insurance policy, affording
coverage with respect to all directors, officers, directors, employees and other
Persons acting on such Master Servicer's behalf, and covering errors and
omissions in the performance of the Master Servicer's obligations hereunder. The
errors and omissions insurance policy and the fidelity bond shall be in such
form and amount generally acceptable for entities serving as master servicers or
trustees.
Section 9.03 Representations and Warranties of the Master Servicer.
(a) The Master Servicer hereby represents and warrants to the Servicer, the
Depositor, the Securities Administrator, the Custodian and the Trustee, for the
benefit of the Certificateholders, as of the Closing Date that:
(i) it is a national banking association validly existing and in
good standing under the laws of the United States of America, and as
Master Servicer has full power and authority to transact any and all
business contemplated by this Agreement and to execute, deliver and comply
with its obligations under the terms of this Agreement, the execution,
delivery and performance of which have been duly authorized by all
necessary corporate action on the part of the Master Servicer;
(ii) the execution and delivery of this Agreement by the Master
Servicer and its performance and compliance with the terms of this
Agreement will not (A) violate the Master Servicer's charter or bylaws,
(B) violate any law or regulation or any administrative decree or order to
which it is subject or (C) constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material contract, agreement or other
instrument to which the Master Servicer is a party or by which it is bound
or to which any of its assets are subject, which violation, default or
breach would materially and adversely affect the Master Servicer's ability
to perform its obligations under this Agreement;
(iii) this Agreement constitutes, assuming due authorization,
execution and delivery hereof by the other respective parties hereto, a
legal, valid and binding obligation of the Master Servicer, enforceable
against it in accordance with the terms hereof, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights in general, and
by general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law);
(iv) the Master Servicer is not in default with respect to any order
or decree of any court or any order or regulation of any federal, state,
municipal or governmental agency to the extent that any such default would
materially and adversely affect its performance hereunder;
(v) the Master Servicer is not a party to or bound by any agreement
or instrument or subject to any charter provision, bylaw or any other
corporate restriction or any judgment, order, writ, injunction, decree,
law or regulation that may materially and adversely affect its ability as
Master Servicer to perform its obligations under this Agreement or that
requires the consent of any third person to the execution of this
Agreement or the performance by the Master Servicer of its obligations
under this Agreement;
(vi) no litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer which would
prohibit its entering into this Agreement or performing its obligations
under this Agreement;
(vii) [Reserved];
(viii) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Master Servicer of or compliance by the Master Servicer
with this Agreement or the consummation of the transactions contemplated
by this Agreement, except for such consents, approvals, authorizations and
orders (if any) as have been obtained; and
(ix) the consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Master Servicer.
(b) [Reserved.]
(c) It is understood and agreed that the representations and
warranties set forth in this Section shall survive the execution and delivery of
this Agreement. The Master Servicer shall indemnify the Servicer, the Depositor,
the Securities Administrator, the Trustee and the Trust hold them harmless
against any loss, damages, penalties, fines, forfeitures, reasonable legal fees
and related costs, judgments, and other reasonable costs and expenses resulting
from any claim, demand, defense or assertion based on or grounded upon, or
resulting from, a material breach of the Master Servicer's representations and
warranties contained in Section 9.03(a) above. It is understood and agreed that
the enforcement of the obligation of the Master Servicer set forth in this
Section 9.03 to indemnify the Servicer, the Depositor, the Securities
Administrator, the Trustee and the Trust constitutes the sole remedy of the
Servicer, the Depositor, the Securities Administrator, the Trustee and the Trust
respecting a breach of the foregoing representations and warranties. Such
indemnification shall survive any termination of the Master Servicer as Master
Servicer hereunder and any termination of this Agreement.
Any cause of action against the Master Servicer relating to or
arising out of the breach of any representations and warranties made in this
Section shall accrue upon discovery of such breach by either the Servicer,
Depositor, the Master Servicer, Securities Administrator or the Trustee or
notice thereof by any one of such parties to the other parties.
Section 9.04 Master Servicer Events of Default. Each of the
following shall constitute a "Master Servicer Event of Default":
(a) any failure by the Master Servicer to deposit in the
Distribution Account any payment received by it from the Servicer or required to
be made by the Master Servicer under the terms of this Agreement which continues
unremedied for a period of one (1) Business Day after the date upon which
written notice of such failure, requiring the same to be remedied, shall have
been given to the Master Servicer by any other party hereto;
(b) failure by the Master Servicer to duly observe or perform, in
any material respect, any other covenants, obligations or agreements of the
Master Servicer as set forth in this Agreement which failure continues
unremedied for a period of thirty (30) days after the date on which written
notice of such failure, requiring the same to be remedied, shall have been given
to the Master Servicer by the Trustee or to the Master Servicer and Trustee by
the holders of Certificates evidencing at least 25% of the Voting Rights;
provided that the cure periods, for the failure to comply with the requirements
set forth in Section 8.15 with respect to delivery of additional disclosure or
with respect to filings of any Forms 8-K, 10-D and 10-K required by the Exchange
Act, shall not exceed the lesser of ten (10) calendar days or such period in
which any applicable Form 8-K, 10-D and 10-K required by the Exchange Act can be
timely filed (without taking into account any extensions);
(c) a decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshaling 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 sixty (60) days;
(d) the Master Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, bankruptcy,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings of or relating to the Master Servicer or relating to all or
substantially all of its property;
(e) the Master Servicer shall admit in writing its inability to pay
its debts as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its obligations for
three (3) Business Days; or
(f) except as otherwise set forth herein, the Master Servicer
attempts to assign this Agreement or its responsibilities hereunder or to
delegate its duties hereunder (or any portion thereof) without the consent of
the Securities Administrator, the Trustee and the Depositor.
In each and every such case, so long as a Master Servicer Event of
Default shall not have been remedied, in addition to whatever rights the Trustee
may have at law or equity to damages, including injunctive relief and specific
performance, the Trustee, by notice in writing to the Master Servicer, may, and
upon the request of the Holders of Certificates representing at least 51% of the
Voting Rights shall, terminate with cause all the rights and obligations of the
Master Servicer under this Agreement.
Upon receipt by the Master Servicer of such written notice, all
authority and power of the Master Servicer under this Agreement, shall pass to
and be vested in any successor master servicer appointed hereunder which accepts
such appointments. Upon written request from the Trustee or the Depositor, the
Master Servicer shall prepare, execute and deliver to the successor entity
designated by the Trustee any and all documents and other instruments related to
the performance of its duties hereunder as the Master Servicer and, place in
such successor's possession all such documents with respect to the master
servicing of the Mortgage Loans and do or cause to be done all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, at the Master Servicer's sole expense. The Master Servicer shall
cooperate with the Trustee and such successor master servicer in effecting the
termination of the Master Servicer's responsibilities and rights hereunder,
including without limitation, the transfer to such successor master servicer for
administration by it of all cash amounts which shall at the time be credited to
the Distribution Account or are thereafter received with respect to the Mortgage
Loans.
All reasonable out-of-pocket costs and expenses incurred by the
Trustee in connection with the transfer of servicing from a terminated Master
Servicer, including, without limitation, any such costs or expenses associated
with the complete transfer of all servicing data and the completion, correction
or manipulation of such servicing data as may be required by the Trustee to
correct any errors or insufficiencies in the servicing data or otherwise to
enable the Trustee (or any successor Master Servicer appointed pursuant to
Section 9.06) to master service shall be paid by the terminated Master Servicer;
provided, however, that to the extent not previously reimbursed by the
terminated Master Servicer, such fees and expenses shall be payable to the
Trustee pursuant to Section 8.06.
Upon the occurrence of a Master Servicer Event of Default, the
Trustee shall provide the Depositor in writing and in form and substance
reasonably satisfactory to the Depositor, all information reasonably requested
by the Depositor in order to comply with its reporting obligation under Item
6.02 of Form 8-K with respect to a successor master servicer in the event the
Trustee should succeed to the duties of the Master Servicer as set forth herein.
Section 9.05 Waiver of Default. By a written notice, the Trustee may
with the consent of a Holders of Certificates evidencing at least 51% of the
Voting Rights waive any default by the Master Servicer in the performance of its
obligations hereunder and its consequences. Upon any waiver of a past default,
such default shall cease to exist, and any Master Servicer Event of Default
arising therefrom shall be deemed to have been remedied for every purpose of
this Agreement. No such waiver shall extend to any subsequent or other default
or impair any right consequent thereon except to the extent expressly so waived.
Section 9.06 Successor to the Master Servicer. Upon termination of
the Master Servicer's responsibilities and duties under this Agreement, the
Trustee shall appoint or may petition any court of competent jurisdiction for
the appointment of a successor, which shall succeed to all rights and assume all
of the responsibilities, duties and liabilities of the Master Servicer under
this Agreement prior to the termination of the Master Servicer. Any successor
shall be a ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac approved servicer in good standing and
acceptable to the Depositor and the Rating Agencies. 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 event shall the master
servicing compensation paid to such successor master servicer exceed that paid
to the Master Servicer hereunder. Notwithstanding anything to the contrary, in
no event shall the Trustee be liable for any master servicing fee or for any
differential in the amount of the master servicing fee paid hereunder and the
amount necessary to induce any successor servicer to act as successor master
servicer under this Agreement and the transactions set forth or provided for
herein. In the event that the Master Servicer's duties, responsibilities and
liabilities under this Agreement are terminated, the Master Servicer shall
continue to discharge its duties and responsibilities hereunder until the
effective date of such termination with the same degree of diligence and
prudence which it is obligated to exercise under this Agreement and shall take
no action whatsoever that might impair or prejudice the rights of its successor.
The termination of the Master Servicer shall not become effective until a
successor shall be appointed pursuant hereto and shall in no event (i) relieve
the Master Servicer of responsibility for the representations and warranties
made pursuant to Section 9.03(a) hereof and the remedies available to the
Trustee under Section 9.03(c) hereof, it being understood and agreed that the
provisions of Section 9.03 hereof shall be applicable to the Master Servicer
notwithstanding any such sale, assignment, resignation or termination of the
Master Servicer or the termination of this Agreement; or (ii) affect the right
of the Master Servicer to receive payment and/or reimbursement of any amounts
accruing to it hereunder prior to the date of termination (or during any
transition period in which the Master Servicer continues to perform its duties
hereunder prior to the date the successor master servicer fully assumes its
duties).
If no successor Master Servicer has accepted its appointment within
90 days of the time the Trustee receives the resignation of the Master Servicer
and the Trustee has not petitioned a court of competent jurisdiction to appoint
a successor Master Servicer, the Trustee shall be the successor Master Servicer
in all respects under this Agreement and shall have all the rights and powers
and be subject to all the responsibilities, duties and liabilities relating
thereto, including the obligation to make Advances; provided, however, that any
failure to perform any duties or responsibilities caused by the Master
Servicer's failure to provide information required by this Agreement shall not
be considered a default by the Trustee hereunder. In the Trustee's capacity as
such successor, the Trustee shall have the same limitations on liability herein
granted to the Master Servicer. As compensation therefor, the Trustee shall be
entitled to receive the compensation, reimbursement and indemnities otherwise
payable to the Master Servicer, including the fees and other amounts payable
pursuant to Section 9.07 hereof.
Any successor master servicer appointed as provided herein, shall
execute, acknowledge and deliver to the Master Servicer and to the Trustee an
instrument accepting such appointment, wherein the successor shall make the
representations and warranties set forth in Section 9.03 hereof, and whereupon
such successor shall become fully vested with all of the rights, powers, duties,
responsibilities, obligations and liabilities of the Master Servicer, with like
effect as if originally named as a party to this Agreement. Any termination or
resignation of the Master Servicer or termination of this Agreement shall not
affect any claims that the Trustee may have against the Master Servicer arising
out of the Master Servicer's actions or failure to act prior to any such
termination or resignation or in connection with the Trustee's assumption as
successor master servicer of such obligations, duties and responsibilities.
Upon a successor's acceptance of appointment as such, the Master
Servicer shall notify by mail the Trustee of such appointment.
Section 9.07 Compensation of the Master Servicer. As compensation
for its activities under this Agreement, the Master Servicer shall be entitled
to a portion of the income earned on investments of funds in the Distribution
Account as agreed with the Securities Administrator.
Section 9.08 Merger or Consolidation. Any Person into which the
Master Servicer may be merged or consolidated, or any Person resulting from any
merger, conversion, other change in form or consolidation to which the Master
Servicer shall be a party, or any Person succeeding to the business of the
Master Servicer, shall be the successor to the Master Servicer 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 resulting Person to the Master Servicer
shall (i) be a Person (or have an Affiliate) that is qualified and approved to
service mortgage loans for ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac (provided further that a
successor Master Servicer that satisfies subclause (i) through an Affiliate
agrees to service the Mortgage Loans in accordance with all applicable ▇▇▇▇▇▇
Mae and ▇▇▇▇▇▇▇ Mac guidelines) and (ii) have a net worth of not less than
$25,000,000.
Section 9.09 Resignation of the Master Servicer. Except as otherwise
provided in Sections 9.08 and 9.10 hereof, the Master Servicer shall not resign
from the obligations and duties hereby imposed on it unless the Master
Servicer's duties hereunder are no longer permissible under applicable law or
are in material conflict by reason of applicable law with any other activities
carried on by it and cannot be cured. Any such determination permitting the
resignation of the Master Servicer shall be evidenced by an Opinion of Counsel
that shall be independent to such effect delivered to the Trustee. No such
resignation shall become effective until the Trustee shall have assumed, or a
successor master servicer satisfactory to the Trustee and the Depositor shall
have assumed, the Master Servicer's responsibilities and obligations under this
Agreement. Notice of such resignation shall be given promptly by the Master
Servicer and the Depositor to the Trustee.
If at any time ▇▇▇▇▇ Fargo Bank, N.A., as Master Servicer, resigns
under this Section 9.09, or is removed as Master Servicer pursuant to Section
9.04, then at such time ▇▇▇▇▇ Fargo Bank, N.A. shall also resign (and shall be
entitled to resign) as Securities Administrator under this Agreement.
Section 9.10 Assignment or Delegation of Duties by the Master
Servicer. Except as expressly provided herein, the Master Servicer shall not
assign or transfer any of its rights, benefits or privileges hereunder to any
other Person, or delegate to or subcontract with, or authorize or appoint any
other Person to perform any of the duties, covenants or obligations to be
performed by the Master Servicer; provided, however, that the Master Servicer
shall have the right with the prior written consent of the Depositor (which
shall not be unreasonably withheld or delayed), and upon delivery to the Trustee
and the Depositor of a letter from each Rating Agency to the effect that such
action shall not result in a downgrade of the ratings assigned to any of the
Certificates, to delegate or assign to or subcontract with or authorize or
appoint any qualified Person to perform and carry out any duties, covenants or
obligations to be performed and carried out by the Master Servicer hereunder.
Notice of such permitted assignment shall be given promptly by the Master
Servicer to the Depositor and the Trustee. If, pursuant to any provision hereof,
the duties of the Master Servicer are transferred to a successor master
servicer, the entire compensation payable to the Master Servicer pursuant hereto
shall thereafter be payable to such successor master servicer but in no event
shall the fee payable to the successor master servicer exceed that payable to
the predecessor master servicer.
Section 9.11 Limitation on Liability of the Master Servicer. Neither
the Master Servicer nor any of the directors, officers, employees or agents of
the Master Servicer shall be under any liability to the Trustee, the Securities
Administrator, the Servicer or 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 Master Servicer or any such person against any liability
that would otherwise be imposed by reason of willful malfeasance, bad faith or
negligence in the performance of its duties or by reason of reckless disregard
for its obligations and duties under this Agreement. The Master Servicer and any
director, officer, employee or agent of the Master Servicer may rely in good
faith on any document prima facie properly executed and submitted by any Person
respecting any matters arising hereunder. The Master Servicer shall be under no
obligation to appear in, prosecute or defend any legal action that is not
incidental to its duties as Master Servicer with respect to the Mortgage Loans
under this Agreement and that in its opinion may involve it in any expenses or
liability; provided, however, that the Master Servicer may in its sole
discretion undertake any such action that it may deem necessary or desirable in
respect to this Agreement and the rights and duties of the parties hereto and
the interests of the Certificateholders hereunder. In such event, the legal
expenses and costs of such action and any liability resulting therefrom, shall
be liabilities of the Trust, and the Master Servicer shall be entitled to be
reimbursed therefor out of the Distribution Account in accordance with the
provisions of Section 9.07 and Section 9.12.
Section 9.12 Indemnification; Third Party Claims. The Master
Servicer agrees to indemnify the Depositor, the Purchaser, the Securities
Administrator and the Trustee, and hold them harmless against any and all
claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments, and any other costs, liability, fees and expenses that the Depositor,
the Purchaser, the Securities Administrator or the Trustee may sustain as a
result of the Master Servicer's willful malfeasance, bad faith or negligence in
the performance of its duties hereunder or by reason of its reckless disregard
for its obligations and duties under this Agreement, including any failure by
the Master Servicer or any Subcontractor utilized by such Master Servicer to
deliver any information, report, certification or accountants' letter when and
as required under Section 8.13 or 8.14, including without limitation any failure
by the Master Servicer to identify any Subcontractor "participating in the
servicing function" within the meaning of Item 1122 of Regulation AB. The
Depositor, the Purchaser, the Securities Administrator and the Trustee shall
immediately notify the Master Servicer if a claim is made by a third party with
respect to this Agreement or the Mortgage Loans which would entitle the
Depositor, the Securities Administrator or the Trustee to indemnification under
this Section 9.12, whereupon the Master Servicer shall assume the defense of any
such claim and pay all expenses in connection therewith, including counsel fees,
and promptly pay, discharge and satisfy any judgment or decree which may be
entered against it or them in respect of such claim. Notwithstanding anything to
the contrary contained herein, the Master Servicer shall not settle any claim
involving the Trustee without the Trustee's prior written consent unless such
settlement involves a complete, unqualified and absolute release of the Trustee
from any and all liability in connection with such claim.
The Trust will indemnify the Master Servicer and hold it harmless
against any and all claims, losses, penalties, fines, forfeitures, legal fees
and related costs, judgments, and any other costs, liabilities, fees and
expenses that the Master Servicer may incur or sustain in connection with,
arising out of or related to this Agreement or the Certificates, except to the
extent that any such loss, liability or expense is a result of (i) a material
breach of the Master Servicer's representations and warranties in this
Agreement, (ii) any breach of the Servicer's obligations in connection with this
Agreement for which the Servicer has performed its obligation to indemnify the
Master Servicer, the Trustee and the Custodian pursuant to the IndyMac Servicing
Agreement, if applicable, (iii) any breach of the Original Loan Seller's
obligations in connection with the IndyMac Assignment Agreement, for which the
Original Loan Seller has performed its obligation to indemnify the Master
Servicer pursuant to the IndyMac Assignment Agreement, or (iv) the Master
Servicer's willful malfeasance, bad faith or negligence or its reckless
disregard of its duties and obligations under this Agreement; provided that any
such loss, liability or expense constitutes an "unanticipated expense incurred
by the REMIC" within the meaning of Treasury Regulations Section
1.860G-1(b)(3)(ii). The Master Servicer shall be entitled to reimbursement for
any such indemnified amount from funds on deposit in the Distribution Account.
The foregoing indemnity shall survive the resignation or removal of the Master
Servicer or the termination of this Agreement.
ARTICLE X
CONCERNING THE SECURITIES ADMINISTRATOR
Section 10.01 .Duties of Securities Administrator. The Securities
Administrator shall undertake to perform such duties and only such duties as are
specifically set forth in this Agreement.
The Securities Administrator, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Securities Administrator 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; provided, however, that the Securities Administrator shall not be
responsible for the accuracy or content of any such resolution, certificate,
statement, opinion, report, document, order or other instrument. If any such
instrument is found not to conform in any material respect to the requirements
of this Agreement, the Securities Administrator shall notify the
Certificateholders of such non-conforming instrument in the event the Securities
Administrator, after so requesting, does not receive a satisfactorily corrected
instrument.
No provision of this Agreement shall be construed to relieve the
Securities Administrator from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct; provided, however, that:
(i) the duties and obligations of the Securities Administrator shall
be determined solely by the express provisions of this Agreement, the
Securities Administrator shall not be liable except for the performance of
such duties and obligations as are specifically set forth in this
Agreement, no implied covenants or obligations shall be read into this
Agreement against the Securities Administrator and the Securities
Administrator 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 Securities Administrator 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;
(ii) the Securities Administrator shall not be liable for an error
of judgment made in good faith by a Responsible Officer or Responsible
Officers of the Securities Administrator, unless it shall be conclusively
determined by a court of competent jurisdiction, such determination no
longer subject to appeal, that the Securities Administrator was negligent
in ascertaining the pertinent facts;
(iii) the Securities Administrator shall not be liable with respect
to any action or inaction 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 Securities Administrator, or exercising or omitting to
exercise any trust or power conferred upon the Securities Administrator
under this Agreement; and
(iv) the Securities Administrator shall not be accountable, shall
have no liability and makes no representation as to any acts or omissions
hereunder of the Master Servicer or the Trustee.
Section 10.02 Certain Matters Affecting the Securities
Administrator. Except as otherwise provided in Section 10.01:
(i) the Securities Administrator may request and conclusively rely
upon and shall be fully 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 Securities Administrator shall have no
responsibility to ascertain or confirm the genuineness of any signature of
any such party or parties;
(ii) the Securities Administrator may consult with counsel,
financial advisers or accountants and the advice of any such counsel,
financial advisers or accountants and any advice or 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 advice or Opinion of Counsel;
(iii) the Securities Administrator shall not be liable for any
action or inaction 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;
(iv) the Securities Administrator shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document, unless
requested in writing so to do by Holders of Certificates evidencing not
less than 25% of the Voting Rights allocated to each Class of
Certificates; provided, however, that if the payment within a reasonable
time to the Securities Administrator of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the
opinion of the Securities Administrator, not reasonably assured to the
Securities Administrator by the security afforded to it by the terms of
this Agreement, the Securities Administrator may require reasonable
indemnity against such expense or liability as a condition to so
proceeding. Nothing in this clause (iv) shall derogate from the obligation
of the Master Servicer to observe any applicable law prohibiting
disclosure of information regarding the Mortgagors, provided that the
Master Servicer shall have no liability for disclosure required by this
Agreement;
(v) the Securities Administrator may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys or a custodian and the Securities
Administrator shall not be responsible for any misconduct or negligence on
the part of any such agent, attorney or custodian appointed by the
Securities Administrator with due care;
(vi) the Securities Administrator 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, and none of the provisions contained in
this Agreement shall in any event require the Securities Administrator to
perform, or be responsible for the manner of performance of, any of the
obligations of the Servicer under this Agreement;
(vii) the Securities Administrator 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 the provisions of this Agreement, unless
such Certificateholders shall have offered to the Securities Administrator
reasonable security or indemnity satisfactory to the Securities
Administrator against the costs, expenses and liabilities which may be
incurred therein or thereby; and
(viii) the Securities Administrator shall have no obligation to
appear in, prosecute or defend any legal action that is not incidental to
its duties hereunder and which in its opinion may involve it in any
expense or liability; provided, however, that the Securities Administrator
may in its discretion undertake any such action that it may deem necessary
or desirable in respect of this Agreement and the rights and duties of the
parties hereto and the 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 Securities Administrator shall be entitled to
be reimbursed therefor out of the Collection Account.
The Securities Administrator shall have no duty (A) to record, file,
or deposit this Agreement or any agreement referred to herein or any financing
statement or continuation statement evidencing a security interest, or to
maintain any such recording or filing or depositing or any rerecording, refiling
or redepositing thereof, (B) to provide any insurance or (C) to pay or discharge
any tax, assessment, or other governmental charge or any lien or encumbrance of
any kind owing with respect to, assessed or levied against, any part of the
Trust Fund other than from funds available in the Distribution Account.
Section 10.03 Securities Administrator Not Liable for Certificates
or Mortgage Loans. The recitals contained herein and in the Certificates shall
be taken as the statements of the Depositor and the Securities Administrator
assumes no responsibility for their correctness. The Securities Administrator
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 Securities Administrator's execution and authentication of the
Certificates. The Securities Administrator shall not be accountable for the use
or application by the Depositor or the Servicer of any funds paid to the
Depositor or the Servicer in respect of the Mortgage Loans or deposited in or
withdrawn from the Collection Account by the Depositor or the Servicer.
Section 10.04 Securities Administrator May Own Certificates. The
Securities Administrator in its individual or any other capacity may become the
owner or pledgee of Certificates and may transact business with the parties
hereto and their Affiliates with the same rights as it would have if it were not
the Securities Administrator.
Section 10.05 Securities Administrator's Fees and Expenses. The
Securities Administrator shall be entitled to the investment income earned on
amounts in the Distribution Account. The Securities Administrator and any
director, officer, employee, agent or "control person" within the meaning of the
Securities Act of 1933, as amended, and the Securities Exchange of 1934, as
amended ("Control Person"), of the Securities Administrator shall be indemnified
by the Trust and held harmless against any loss, liability or expense (including
reasonable attorney's fees) (i) incurred in connection with any claim or legal
action relating to (a) this Agreement, (b) the Mortgage Loans or (c) the
Certificates, other than any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of any of the
Securities Administrator's duties hereunder, (ii) incurred in connection with
the performance of any of the Securities Administrator's duties hereunder, other
than any loss, liability or expense incurred by reason of willful misfeasance,
bad faith or negligence in the performance of any of the Securities
Administrator's duties hereunder or (iii) incurred by reason of any action of
the Securities Administrator taken at the direction of the Certificateholders,
provided that any such loss, liability or expense constitutes an "unanticipated
expense incurred by the REMIC" within the meaning of Treasury Regulations
Section 1.860G-1(b)(3)(ii). Such indemnity shall survive the termination of this
Agreement or the resignation or removal of the Securities Administrator
hereunder. Without limiting the foregoing, and except for any such expense,
disbursement or advance as may arise from the Securities Administrator's
negligence, bad faith or willful misconduct, or which would not be an
"unanticipated expense" within the meaning of the second preceding sentence, the
Securities Administrator shall be reimbursed by the Trust for all reasonable
expenses, disbursements and advances incurred or made by the Securities
Administrator in accordance with any of the provisions of this Agreement with
respect to: (A) the reasonable compensation and the 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, appraiser or other agent that is not regularly employed by
the Securities Administrator, to the extent that the Securities Administrator
must engage such Persons to perform acts or services hereunder and (C) printing
and engraving expenses in connection with preparing any Definitive Certificates.
The Trust shall fulfill its obligations under this paragraph from amounts on
deposit from time to time in the Distribution Account. The Securities
Administrator shall be required to pay all expenses incurred by it in connection
with its activities hereunder and shall not be entitled to reimbursement
therefor except as provided in this Agreement.
Section 10.06 Eligibility Requirements for Securities Administrator.
The Securities Administrator hereunder shall at all times be a corporation or
association organized and doing business under the laws the United States of
America or any state thereof, 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 of at least investment grade. 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 10.06 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 Securities Administrator shall cease to be eligible in
accordance with the provisions of this Section 10.06, the Securities
Administrator shall resign immediately in the manner and with the effect
specified in Section 10.07 hereof. The entity serving as Securities
Administrator may have normal banking and trust relationships with the Depositor
and its affiliates or the Trustee and its affiliates.
Any successor Securities Administrator (i) may not be an originator,
a Servicer, the Depositor or an affiliate of the Depositor unless the Securities
Administrator functions are operated through an institutional trust department
of the Securities Administrator, (ii) must be authorized to exercise corporate
trust powers under the laws of its jurisdiction of organization, and (iii) must
be rated at least "A/F1" by Fitch, if Fitch is a Rating Agency and rates such
successor, or the equivalent rating by Standard & Poor's or ▇▇▇▇▇'▇. If no
successor Securities Administrator shall have been appointed and shall have
accepted appointment within 60 days after the Securities Administrator ceases to
be the Securities Administrator pursuant to Section 10.07, then the Trustee may
(but shall not be obligated to) become the successor Securities Administrator.
The Depositor shall appoint a successor to the Securities Administrator in
accordance with Section 10.07. The Trustee shall notify the Rating Agencies of
any change of Securities Administrator.
Section 10.07 Resignation and Removal of Securities Administrator.
The Securities Administrator may at any time resign by giving written notice of
resignation to the Depositor and the Trustee and each Rating Agency not less
than 60 days before the date specified in such notice when, subject to Section
10.08, such resignation is to take effect, and acceptance by a successor
Securities Administrator in accordance with Section 10.08 meeting the
qualifications set forth in Section 10.06. If no successor Securities
Administrator meeting such qualifications shall have been so appointed by the
Depositor and have accepted appointment within 30 days after the giving of such
notice of resignation, the resigning Securities Administrator may petition any
court of competent jurisdiction for the appointment of a successor Securities
Administrator.
If at any time the Securities Administrator shall cease to be
eligible in accordance with the provisions of Section 10.06 hereof and shall
fail to resign after written request thereto by the Depositor, or if at any time
the Securities Administrator shall become incapable of acting, or shall be
adjudged as bankrupt or insolvent, or a receiver of the Securities Administrator
or of its property shall be appointed, or any public officer shall take charge
or control of the Securities Administrator 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 Securities Administrator or
the Trust Fund is located and the imposition of such tax would be avoided by the
appointment of a different Securities Administrator, then the Depositor may
remove the Securities Administrator and appoint a successor Securities
Administrator by written instrument, in triplicate, one copy of which instrument
shall be delivered to the Securities Administrator so removed, one copy of which
shall be delivered to the Master Servicer and one copy to the successor
Securities Administrator.
The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Securities Administrator and appoint a
successor Securities Administrator by written instrument or instruments, in
triplicate, signed by such Holders or their attorneys in fact duly authorized,
one complete set of which instruments shall be delivered by the successor
Securities Administrator to the Trustee, one complete set to the Securities
Administrator so removed and one complete set to the successor so appointed.
Notice of any removal of the Securities Administrator shall be given to each
Rating Agency by the successor Securities Administrator.
Any resignation or removal of the Securities Administrator and
appointment of a successor Securities Administrator pursuant to any of the
provisions of this Section 10.07 shall become effective upon acceptance by the
successor Securities Administrator of appointment as provided in Section 10.08
hereof.
If at any time, ▇▇▇▇▇ Fargo Bank, N.A., as Securities Administrator,
resigns under this Section 10.07, or is removed as Securities Administrator
pursuant to this Section 10.07, then at such time ▇▇▇▇▇ Fargo Bank, N.A. shall
also resign (and shall be entitled to resign) as Master Servicer under this
Agreement.
Notwithstanding the foregoing, if at any time the Securities
Administrator resigns pursuant to Section 10.07, the Trustee shall be authorized
to appoint, with the Depositor's consent, a successor Securities Administrator
concurrently with the appointment of a successor Master Servicer.
Section 10.08 Successor Securities Administrator. Any successor
Securities Administrator (which may be the Trustee) appointed as provided in
Section 10.07 hereof shall execute, acknowledge and deliver to the Depositor and
to its predecessor securities administrator and the Trustee an instrument
accepting such appointment hereunder and thereupon the resignation or removal of
the predecessor Securities Administrator shall become effective and such
successor Securities Administrator, 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
Securities Administrator herein. The Depositor, the Trustee, the Master Servicer
and the predecessor Securities Administrator 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 Securities
Administrator all such rights, powers, duties, and obligations.
No successor Securities Administrator shall accept appointment as
provided in this Section 10.08 unless at the time of such acceptance such
successor Securities Administrator shall be eligible under the provisions of
Section 10.06 hereof and its appointment shall not adversely affect the then
current rating of the Certificates, as confirmed in writing by each Rating
Agency.
Upon acceptance by a successor Securities Administrator of
appointment as provided in this Section 10.08, the Depositor shall mail notice
of the succession of such Securities Administrator hereunder to all Holders of
Certificates. If the Depositor fails to mail such notice within 10 days after
acceptance by the successor Securities Administrator of appointment, the
successor Securities Administrator shall cause such notice to be mailed at the
expense of the Depositor.
Section 10.09 Merger or Consolidation of Securities Administrator.
Any corporation or other entity into which the Securities Administrator may be
merged or converted or with which it may be consolidated or any corporation or
other entity resulting from any merger, conversion or consolidation to which the
Securities Administrator shall be a party, or any corporation or other entity
succeeding to the business of the Securities Administrator, shall be the
successor of the Securities Administrator hereunder, provided that such
corporation or other entity shall be eligible under the provisions of Section
10.06 hereof, 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 10.10 Assignment or Delegation of Duties by the Securities
Administrator. Except as expressly provided herein, the Securities Administrator
shall not assign or transfer any of its rights, benefits or privileges hereunder
to any other Person, or delegate to or subcontract with, or authorize or appoint
any other Person to perform any of the duties, covenants or obligations to be
performed by the Securities Administrator; provided, however, that the
Securities Administrator shall have the right with the prior written consent of
the Depositor (which shall not be unreasonably withheld or delayed), and upon
delivery to the Trustee and the Depositor of a letter from each Rating Agency to
the effect that such action shall not result in a downgrade of the ratings
assigned to any of the Certificates, to delegate or assign to or subcontract
with or authorize or appoint any qualified Person to perform and carry out any
duties, covenants or obligations to be performed and carried out by the
Securities Administrator hereunder. Notice of such permitted assignment shall be
given promptly by the Securities Administrator to the Depositor and the Trustee.
If, pursuant to any provision hereof, the duties of the Securities Administrator
are transferred to a successor securities administrator, the entire compensation
payable to the Securities Administrator pursuant hereto shall thereafter be
payable to such successor securities administrator but in no event shall the fee
payable to the successor securities administrator exceed that payable to the
predecessor securities administrator.
ARTICLE XI
TERMINATION
Section 11.01 Termination upon Liquidation or Purchase of the
Mortgage Loans. Subject to Section 11.03, the obligations and responsibilities
of the Depositor, the Master Servicer, the Custodian, the Securities
Administrator and the Trustee created hereby with respect to the Trust Fund
shall terminate upon the earlier of (a) the purchase on or after the Optional
Termination Date, by the Servicer of all Mortgage Loans (and REO Properties), at
the price (the "Termination Price") equal to the sum of (i) 100% of the unpaid
principal balance of each Mortgage Loan (other than in respect of REO Property)
plus accrued and unpaid interest thereon at the applicable Mortgage Interest
Rate, and (ii) the lesser of (x) the appraised value of any REO Property as
determined by the higher of two appraisals completed by two independent
appraisers selected by the Servicer at the expense of the Servicer and (y) the
unpaid principal balance of each Mortgage Loan related to any REO Property, in
each case plus accrued and unpaid interest thereon at the applicable Mortgage
Rate, (iii) all unreimbursed Monthly Advances, Servicing Advances and
indemnification payments payable to the Servicer, and (iv) any unreimbursed
indemnification payments payable to the Custodian, the Master Servicer, the
Securities Administrator and the Trustee under this Agreement; and (b) the later
of (i) the maturity or other liquidation (or any Advance with respect thereto)
of the last Mortgage Loan remaining in the Trust Fund and the disposition of all
REO Property and (ii) the distribution to Certificateholders of all amounts
required to be distributed to them pursuant to this Agreement. In no event shall
the trusts created hereby continue beyond the expiration of 21 years from the
death of the survivor of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late
Ambassador of the United States to the Court of St. James's, living on the date
hereof.
Section 11.02 Final Distribution on the Certificates. If, on the
Servicer Remittance Date, the Servicer notifies the Securities Administrator
that there are no Outstanding Mortgage Loans and no other funds or assets in the
Trust Fund other than the funds in the Collection Account, the Securities
Administrator shall promptly send a Notice of Final Distribution to the
applicable Certificateholders. If the electing Person elects to terminate the
Trust pursuant to clause (a) of Section 11.01, by no later than the 10th day of
the month of the final distribution, the Securities Administrator upon request
by the electing Person will notify the Depositor of the final Distribution Date
and of the Termination Price of the Mortgage Loans and the related REO
Properties.
A Notice of Final Distribution, 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 Securities
Administrator by letter to Certificateholders mailed not later than the 15th day
of the month of such final distribution. Any such Notice of Final Distribution
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 such Distribution
Date is not applicable, distributions being made only upon presentation and
surrender of the Certificates at the office therein specified. The Securities
Administrator will give such Notice of Final Distribution to each Rating Agency
at the time such Notice of Final Distribution is given to Certificateholders.
In the event the electing Person purchases the Mortgage Loans (and
REO Properties) pursuant to Section 11.01, such electing Person is required to
remit to the Securities Administrator the Termination Price on the Servicer
Remittance Date immediately preceding the applicable final Distribution Date.
Upon such final deposit with respect to the Trust Fund and the receipt by the
Custodian of the Request for Release, the Custodian shall promptly release to
such electing Person or its designee the Custodial Files for the Mortgage Loans.
Upon presentation and surrender of the Certificates, the Securities
Administrator shall cause to be distributed to the Certificateholders of each
Class (after reimbursement of all amounts due the Master Servicer, the
Securities Administrator, the Depositor and the Trustee hereunder), in each case
on the final Distribution Date and in the order set forth in Section 4.01, in
proportion to their respective Percentage Interests, with respect to
Certificateholders of the same Class, an amount up to an amount equal to (i) as
to each Class of Regular Certificates, the Class Certificate Balance thereof
plus for each such Class accrued interest thereon in the case of an
interest-bearing Certificate and all other amounts to which such Classes are
entitled pursuant to Section 4.01, (ii) as to the Residual Certificates, the
amount, if any, which remains on deposit in the Distribution Account after
application pursuant to clause (i) above (other than the amounts retained to
meet claims, which retained amounts shall also be released to the Residual
Certificates, as applicable, as and to the extent such amounts shall no longer
be required to be so retained). The foregoing provisions are intended to
distribute to each Class of Regular Certificates any accrued and unpaid interest
and principal to which they are entitled based on the Pass-Through Rates and
actual Class Certificate Balances or notional principal balances set forth in
the Preliminary Statement upon liquidation of the Trust.
In the event that any affected Certificateholders shall not
surrender Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Securities Administrator
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
Securities Administrator 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 Certificateholders shall be entitled to all
unclaimed funds and other assets of the Trust Fund which remain subject hereto.
Section 11.03 Additional Termination Requirements. In the event the
electing Person elects to purchase the Mortgage Loans as provided in Section
11.01, the related Trust REMICs shall be terminated in accordance with the
following additional requirements, unless the Securities Administrator has been
supplied with an Opinion of Counsel, at the expense of the electing Person, to
the effect that the failure to comply with the requirements of this Section
11.03 will not (i) result in the imposition of taxes on "prohibited
transactions" on either Trust REMIC as defined in Section 860F of the Code, or
(ii) cause either Trust REMIC to fail to qualify as a REMIC at any time that any
Certificates are Outstanding:
(a) The Trustee shall sell all of the assets of the Trust Fund to
the person electing to terminate or its designee, and, by the next Distribution
Date after such sale, the Securities Administrator shall distribute to the
related Certificateholders the proceeds of such sale in complete liquidation of
each of the related Trust REMICs; and
(b) The Securities Administrator shall attach a statement to the
final federal income tax return for each of the terminated Trust REMICs stating
that pursuant to Treasury Regulations Section 1.860F-1, the first day of the 90
day liquidation period for each such Trust REMIC was the date on which the
Trustee sold the assets of the Trust Fund to the electing Person.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment. This Agreement may be amended from time to
time by the Master Servicer, the Securities Administrator, the Depositor, the
Custodian and the Trustee (and the Master Servicer may request an amendment or
consent to any amendment of the IndyMac Agreements) without the consent of any
of the Certificateholders (i) to cure any ambiguity or mistake, (ii) to correct
any defective provision herein or in the IndyMac Servicing Agreement, or to
supplement any provision in this Agreement which may be inconsistent with any
other provision herein or in the IndyMac Agreements, (iii) to add to the duties
of the Master Servicer, the Securities Administrator, the Depositor, the
Custodian or the Trustee (or with respect to the IndyMac Agreements), (iv) to
add any other provisions with respect to matters or questions arising hereunder
or under the IndyMac Agreements, or (v) to modify, alter, amend, add to or
rescind any of the terms or provisions contained in this Agreement or in the
IndyMac Agreements; provided that any action pursuant to clause (iv) or (v)
above shall not, as evidenced by an Opinion of Counsel (which Opinion of Counsel
shall be an expense of the requesting party, but in any case shall not be an
expense of the Trustee, the Master Servicer, the Securities Administrator, the
Custodian or the Trust Fund), adversely affect in any material respect the
interests of any Certificateholder; provided, further, that 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; it being understood and agreed that any such letter in and of
itself will not represent a determination as to the materiality of any such
amendment and will represent a determination only as to the credit issues
affecting any such rating. The Trustee, the Master Servicer, the Securities
Administrator, the Custodian and the Depositor also may at any time and from
time to time amend this Agreement (and the Master Servicer shall request the
Servicer to amend the IndyMac Servicing Agreement), without the consent of the
Certificateholders, to modify, eliminate or add to any of its provisions to such
extent as shall be necessary or helpful to (i) maintain the qualification of
each Trust REMIC under the REMIC Provisions, (ii) avoid or minimize the risk of
the imposition of any tax on each Trust REMIC pursuant to the Code that would be
a claim at any time prior to the final redemption of the Certificates or (iii)
comply with any other requirements of the Code; provided, that the Securities
Administrator 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 Securities Administrator or the Trust Fund, to the effect that
such action is necessary or helpful to, as applicable, (i) maintain such
qualification, (ii) avoid or minimize the risk of the imposition of such a tax
or (iii) comply with any such requirements of the Code.
This Agreement may also be amended from time to time by the
Depositor, the Master Servicer, the Securities Administrator, the Custodian and
the Trustee (and the Master Servicer shall consent to any amendment to the
IndyMac Servicing Agreement) with the consent of the Holders of Certificates
evidencing Percentage Interests aggregating not less than 66-2/3% of each Class
of Certificates affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Holders of Certificates; provided,
however, that no such amendment shall (i) reduce in any manner the amount of, or
delay the timing of, payments required to be distributed on any Certificate
without the consent of the Holder of such Certificate, (ii) adversely affect in
any material respect the interests of the Holders of any Class of Certificates
in a manner other than as set forth in clause (i), without the consent of the
Holders of Certificates of such Class evidencing, as to such Class, Percentage
Interests aggregating not less than 66-2/3%, or (iii) reduce the aforesaid
percentages of Certificates the Holders of which are required to consent to any
such amendment, without the consent of the Holders of all such Certificates then
Outstanding.
Notwithstanding any contrary provision of this Agreement, the
Securities Administrator shall not consent to any amendment to this Agreement or
the IndyMac Agreements unless (i) it shall have first received an Opinion of
Counsel, which opinion shall not be an expense of the Securities Administrator
or the Trust Fund, to the effect that such amendment will not cause the
imposition of any tax on either Trust REMIC or the Certificateholders or cause
either such Trust REMIC to fail to qualify as a REMIC or the grantor trust to
fail to qualify as a grantor trust at any time that any Certificates are
Outstanding and (ii) the party seeking such amendment shall have provided
written notice to the Rating Agencies (with a copy of such notice to the
Securities Administrator and the Trustee) of such amendment, stating the
provisions of the Agreement to be amended.
Notwithstanding the foregoing provisions of this Section 12.01, with
respect to any amendment that significantly modifies the permitted activities of
the Trustee or the Servicer under the IndyMac Servicing Agreement, any
Certificate beneficially owned by the Depositor or any of its Affiliates or by
the Original Loan Seller or any of its Affiliates shall be deemed not to be
Outstanding (and shall not be considered when determining the percentage of
Certificateholders consenting or when calculating the total number of
Certificates entitled to consent) for purposes of determining if the requisite
consents of Certificateholders under this Section 12.01 have been obtained.
Promptly after the execution of any amendment to this Agreement or
the IndyMac Servicing Agreement requiring the consent of Certificateholders, the
Securities Administrator shall furnish written notification of the substance or
a copy of such amendment to each Certificateholder and each Rating Agency.
Notwithstanding the above, promptly after execution of any amendment to the
IndyMac Servicing Agreement that relates to or affects the modification of
Mortgage Loans, the Securities Administrator should furnish written notification
of the substance or a copy of such amendment to each Rating Agency.
It shall not be necessary for the consent of Certificateholders
under this Section 12.01 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 Securities Administrator may prescribe.
Nothing in this Agreement shall require the Custodian, Trustee or
the Securities Administrator to enter into an amendment which modifies its
obligations or liabilities without its consent and in all cases without
receiving an Opinion of Counsel (which Opinion shall not be an expense of the
Custodian, the Trustee, Securities Administrator or the Trust Fund),
satisfactory to the Trustee and the Securities Administrator that (i) such
amendment is permitted and is not prohibited by this Agreement or the IndyMac
Servicing Agreement and that all requirements for amending this Agreement or the
IndyMac Servicing 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 immediately preceding
clause (A) is not required to be reached pursuant to this Section 12.01.
Notwithstanding the Securities Administrator's consent to, or
request for, any amendment of the IndyMac Servicing Agreement pursuant to the
terms of this Section 12.01, the IndyMac Servicing Agreement cannot be amended
without the consent of the Servicer.
The Trustee may, but shall not be obligated to, enter into any
amendment which negatively affects the Trustee's own rights, duties or
immunities under this Agreement.
Section 12.02 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 shall be
effected by the Depositor at the expense of the Trust, but only if an Opinion of
Counsel to the effect that such recordation materially and beneficially affects
the interests of the Certificateholders is delivered to the Depositor.
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 12.03 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 12.04 Intention of Parties. It is the express intent of the
parties hereto that the conveyance (i) of the Mortgage Loans by the Depositor
and (ii) of the Trust Fund by the Depositor to the Trustee each be, and be
construed as, an absolute sale thereof. It is, further, not the intention of the
parties that such conveyances be deemed a pledge thereof. However, in the event
that, notwithstanding the intent of the parties, either of such assets are held
to be the property of the Depositor, or if for any other reason this Agreement
is held or deemed to create a security interest in either of such assets, then
(i) this Agreement shall be deemed to be a security agreement within the meaning
of the Uniform Commercial Code of the State of New York and (ii) the conveyances
provided for in this Agreement shall be deemed to be an assignment and a grant
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 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 12.05 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:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default or Master Servicer Event
of Default that has not been cured;
(iii) the resignation or termination of the Servicer, the Master
Servicer, the Securities Administrator, the Custodian or the Trustee and
the appointment of any successor;
(iv) the repurchase or substitution of Mortgage Loans pursuant to
this Agreement or the IndyMac Purchase Agreement;
(v) any notice of a repurchase of a Mortgage Loan pursuant to this
Agreement or IndyMac Purchase Agreement; and
(vi) the final payment to Certificateholders.
(b) In addition, the Securities Administrator shall promptly make
available on its internet website to each Rating Agency copies of the following:
(i) each report to Certificateholders set forth in Section 4.02;
(ii) the Servicer's annual statement of compliance and the
accountant's attestation set forth in the IndyMac Servicing Agreement; and
(c) All directions, demands and notices hereunder shall be in
writing and shall be deemed to have been duly given when delivered to (i) in the
case of the Depositor, BCAP LLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: General Counsel, Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇, or such other address as
the Depositor may hereafter furnish to the Servicer and the Trustee; (ii) in the
case of the Trustee to ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, telephone:
(▇▇▇) ▇▇▇-▇▇▇▇ or in each case such other address as the Trustee may hereafter
furnish to the Depositor; (iii) In the case of the Securities Administrator
and/or Master Servicer to ▇▇▇▇▇ Fargo Bank, N.A., ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: Corporate Trust Services-BCAP 2008-IND1
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇, with a copy to ▇.▇. ▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Client Manager-BCAP 2008-IND1 and for the purpose of certificate
transfers, ▇▇▇▇▇ Fargo Center, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; (iv) in the case of the Custodian, Deutsche Bank National Trust
Company, ▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Mortgage Custody - BC081C; and (v) 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 12.06 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 12.07 Limitation on Rights of Certificateholders. The death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust created hereby, nor entitle such Certificateholder's
legal representative or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a petition or winding up of the Trust
created hereby, or otherwise affect the rights, obligations and liabilities of
the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as
provided herein) or in any manner otherwise control the operation and management
of the Trust Fund, or the obligations of the parties hereto, nor shall anything
herein set forth or contained in the terms of the Certificates be construed so
as to constitute the Certificateholders from time to time as partners or members
of an association; nor shall any Certificateholder be under any liability to any
third party by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Agreement,
unless such Holder previously shall have given to the Securities Administrator a
written notice of an Event of Default and of the continuance thereof, as herein
provided, and unless the Holders of Certificates evidencing not less than 25% of
the Voting Rights evidenced by the Certificates shall also have made written
request to the Securities Administrator to institute such action, suit or
proceeding in its own name as Securities Administrator hereunder and shall have
offered to the Securities Administrator such reasonable indemnity as it may
require against the costs, expenses, and liabilities to be incurred therein or
thereby, and the Securities Administrator, 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 Securities Administrator, that no one or more Holders
of Certificates shall have any right in any manner whatever by virtue or by
availing itself or themselves of any provisions of this Agreement to affect,
disturb or prejudice the rights of the Holders of any other of the Certificates,
or to obtain or seek to obtain priority over or preference to any other such
Holder or to enforce any right under this Agreement, except in the manner herein
provided and for the common benefit of all Certificateholders. For the
protection and enforcement of the provisions of this Section 12.07, each and
every Certificateholder and the Trustee shall be entitled to such relief as can
be given either at law or in equity.
Section 12.08 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
Securities Administrator pursuant to this Agreement, are and shall be deemed
fully paid.
Section 12.09 Waiver of Jury Trial. EACH PARTY HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES (TO THE EXTENT PERMITTED BY APPLICABLE LAW)
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR
RELATING TO THIS AGREEMENT AND AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED
BEFORE A JUDGE SITTING WITHOUT A JURY.
Section 12.10 Regulation AB Compliance; Intent of the Parties;
Reasonableness. The parties hereto acknowledge that interpretations of the
requirements of Regulation AB may change over time, whether due to interpretive
guidance provided by the Commission or its staff, consensus among participants
in the asset-backed securities markets, advice of counsel, or otherwise, and
agree to comply with all reasonable requests made by the Depositor in good faith
for delivery of information under these provisions on the basis of evolving
interpretations of Regulation AB. In connection with the Trust, the Master
Servicer and the Securities Administrator shall cooperate fully with the
Depositor to deliver to the Depositor (including its assignees or designees),
any and all statements, reports, certifications, records and any other
information available to such party and reasonably necessary in the good faith
determination of the Depositor to permit the Depositor to comply with the
provisions of Regulation AB, together with such disclosures relating to the
Master Servicer and the Securities Administrator reasonably believed by the
Depositor to be necessary in order to effect such compliance.
Section 12.11 Third Party Rights. Each Person entitled to
indemnification hereunder who is not a party hereto, shall be deemed a
third-party beneficiary of this Agreement to the same extent as if it were a
party hereto and shall have the right to enforce its rights under this
Agreement.
* * *
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of the
day and year first above written.
BCAP LLC
By:_______________________________________
Name:
Title:
▇▇▇▇▇ FARGO BANK, N.A., as Master
Servicer and Securities Administrator
By:_______________________________________
Name:
Title:
DEUTSCHE BANK NATIONAL TRUST COMPANY, as
Custodian
By:_______________________________________
Name:
Title:
By:_______________________________________
Name:
Title:
HSBC BANK USA, NATIONAL ASSOCIATION, as
Trustee
By:_______________________________________
Name:
Title:
SCHEDULE I
Mortgage Loan Schedule
EXHIBIT A
FORM OF CLASS A-1, CLASS A-2, CLASS A-3, CLASS A-X, CLASS
B-1, CLASS B-2, CLASS B-3, CLASS B-4, CLASS B-5 and
CLASS B-6 CERTIFICATES.
IF THIS CERTIFICATE IS A BOOK-ENTRY CERTIFICATE, THE PROPOSED TRANSFEROR WILL BE
DEEMED TO HAVE MADE EACH OF THE CERTIFICATIONS SET FORTH IN THE TRANSFEROR
LETTER AND THE PROPOSED TRANSFEREE WILL BE DEEMED TO HAVE MADE EACH OF THE
CERTIFICATIONS SET FORTH IN THE RULE 144A LETTER, IN EACH CASE AS IF SUCH
CERTIFICATE WERE EVIDENCED BY A PHYSICAL CERTIFICATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN
INTEREST IN 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"), AND CERTAIN OTHER
ASSETS.
[To be added to the Class B-4, Class B-5 and Class B-6 Certificates: NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR EITHER A REPRESENTATION
LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR A PLAN
SUBJECT TO APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR A PERSON INVESTING
ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN, OR, IF THE TRANSFEREE IS AN
INSURANCE COMPANY, A REPRESENTATION LETTER THAT IT IS USING THE ASSETS OF ITS
GENERAL ACCOUNT AND THE PURCHASE AND HOLDING OF THIS CERTIFICATE ARE COVERED
UNDER SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR AN
OPINION OF COUNSEL SATISFACTORY TO THE SECURITIES ADMINISTRATOR, TO THE EFFECT
THAT THE PURCHASE OR HOLDING OF THIS CERTIFICATE WILL NOT CONSTITUTE OR RESULT
IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA, SECTION 4975
OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE, THE SECURITIES
ADMINISTRATOR, THE MASTER SERVICER, THE DEPOSITOR OR THE SERVICER TO ANY
OBLIGATION IN ADDITION TO THOSE EXPRESSLY UNDERTAKEN IN THE AGREEMENT OR TO ANY
LIABILITY. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED
TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT
TO TITLE I OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW WITHOUT THE
REPRESENTATION LETTER OR OPINION OF COUNSEL SATISFACTORY TO THE SECURITIES
ADMINISTRATOR AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.]
Certificate No. :
Cut-off Date : January 1, 2008
First Distribution Date : February 25, 2008
Initial Certificate Balance or
Notional Amount of this
Certificate :
("Denomination")
Initial Certificate Balances
or Notional Amounts of : [A-1] $189,416,000
all Certificates of this Class [A-2] $68,245,000
[A-3] $68,245,000
[A-X] $371,403,042
[B-1] $17,270,000
[B-2] $8,357,000
[B-3] $5,571,000
[B-4] $5,385,000
[B-5] $4,457,000
[B-6] $4,456,942
CUSIP [A-1] 05531C AA8
[A-2] 05531C AB6
: [A-3] 05531C AC4
[A-X] 05531C ▇▇▇
[▇-▇] 05531C AF7
[B-2] 05531C AG5
[B-3] 05531C AH3
[B-4] 05531C AJ9
[B-5] 05531C AK6
[B-6] 05531C AL4
ISIN [A-1] US05531CAA80
[A-2] US05531CAB63
: [A-3] US05531CAC47
[A-X] ▇▇▇▇▇▇▇▇▇▇▇▇
[▇-▇] US05531CAF77
[B-2] US05531CAG50
[B-3] US05531CAH34
[B-4] US05531CAJ99
[B-5] US05531CAK62
[B-6] US05531CAL46
BCAP LLC
BCAP LLC Trust 2008-IND1
Mortgage Pass-Through Certificates, Series 2008-IND1
[Class A-1] [Class A-2] [Class A-3] [Class A-X] [Class
B-1] [Class B-2][Class B-3] [Class B-4][Class B-5]
[Class B-6]
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class.
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Class Certificate Balance at any time may be
less than the Class 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 or the Securities Administrator referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that [__________] is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions pursuant to a Pooling and Servicing Agreement dated as of the
Cut-off Date specified above (the "Agreement") between BCAP LLC, as depositor
(the "Depositor"), ▇▇▇▇▇ Fargo Bank, N.A., as Master Servicer (the "Master
Servicer"), and as Securities Administrator (the "Securities Administrator"),
Deutsche Bank National Trust Company (the "Custodian") and HSBC Bank USA,
National Association, 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.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
* * *
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
▇▇▇▇▇ FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities
Administrator
By:_________________________________
Authenticated:
By:____________________________________
Authorized Signatory of
▇▇▇▇▇ FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
BCAP LLC
BCAP LLC Trust 2008-IND1
Mortgage Pass-Through Certificates, Series 2008-IND1
This Certificate is one of a duly authorized issue of Certificates
designated as BCAP LLC Trust 2008-IND1 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 Securities Administrator 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 Securities Administrator and the other parties to
the Agreement.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such 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 for each
Distribution Date is the last Business Day of the applicable Interest Accrual
Period for the related Distribution Date; provided, however, that for any
Definitive Certificates, the Record Date shall be the last Business Day of the
month immediately 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 Securities Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder shall
satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office designated by the
Securities Administrator for such purposes, 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
Securities Administrator and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Securities Administrator and the
other parties to the Agreement with the consent of the Holders of Certificates
affected by such amendment evidencing the requisite Percentage Interest, as
provided in the Agreement. Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Securities Administrator upon surrender of this
Certificate for registration of transfer at the office designated by the
Securities Administrator for such purposes, accompanied by a written instrument
of transfer in form satisfactory to the Securities Administrator 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 Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Securities Administrator and the Depositor and any agent of the
Securities Administrator or the Depositor may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
the Depositor, the Securities Administrator, nor any such agent shall be
affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Person specified in Section 11.01 of the Agreement
will have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans in and all property acquired in respect of the Mortgage Loans at
a purchase price determined as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
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 Securities Administrator 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.
EXHIBIT B
FORM OF [CLASS A-R] CERTIFICATES
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN TWO "REAL ESTATE MORTGAGE INVESTMENT CONDUITS," 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 SECURITIES ADMINISTRATOR A TRANSFER
AFFIDAVIT IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A REPRESENTATION LETTER TO
THE EFFECT THAT SUCH TRANSFEREE IS 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 A PLAN SUBJECT TO MATERIALLY SIMILAR
PROVISIONS OF APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") OR A PERSON
INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN. IN THE EVENT THAT
SUCH REPRESENTATION IS VIOLATED, OR ANY ATTEMPT IS MADE TO TRANSFER TO A PLAN OR
ARRANGEMENT SUBJECT TO SECTION 406 OF ERISA, A PLAN SUBJECT TO SECTION 4975 OF
THE CODE OR A PLAN SUBJECT TO SIMILAR LAW, OR A PERSON ACTING ON BEHALF OF ANY
SUCH PLAN OR ARRANGEMENT OR USING THE ASSETS OF ANY SUCH PLAN OR ARRANGEMENT,
SUCH ATTEMPTED TRANSFER OR ACQUISITION SHALL BE VOID AND OF NO EFFECT.
Certificate No. : A-R
Cut-off Date : January 1, 2008
First Distribution Date : February 25, 2008
CUSIP : 05531C AE0
ISIN : US05531CAE03
BCAP LLC
BCAP LLC Trust 2008-IND1
Mortgage Pass-Through Certificates, Series 2008-IND1
Class A-R
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class.
This Certificate does not evidence an obligation of, or an interest
in, and is not guaranteed by the Depositor or the Securities Administrator
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 specified above of any monthly distributions due to the
Class A-R Certificates pursuant to a Pooling and Servicing Agreement dated as of
the Cut-off Date specified above (the "Agreement") between BCAP LLC, as
depositor (the "Depositor"), ▇▇▇▇▇ Fargo Bank, N.A., as Master Servicer (the
"Master Servicer"), and as Securities Administrator (the "Securities
Administrator"), Deutsche Bank National Trust Company, as Custodian (the
"Custodian") and HSBC Bank USA, National Association, 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 office designated by the Securities Administrator for such
purposes.
No transfer of a Class A-R Certificate shall be made unless the
Securities Administrator shall have received a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Securities Administrator, to the effect that such transferee
is not an employee benefit plan or arrangement subject to Section 406 of ERISA,
a plan or arrangement subject to Section 4975 of the Code or a plan subject to
Similar Law, or a person acting on behalf of any such plan or arrangement or
using the assets of any such plan or arrangement to effect such transfer, which
representation letter shall not be an expense of the Securities Administrator or
the Trust Fund. In the event that such 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 plan subject to Similar
Law, or a person acting on behalf of any such plan or arrangement or using the
assets of any such plan or arrangement, such attempted transfer or acquisition
shall be void and of no effect.
Each Holder of this Class A-R Certificate shall be deemed by the
acceptance or acquisition an Ownership Interest in this Class A-R Certificate to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in this Class A-R Certificate are
expressly subject to the following provisions: (i) each Person holding or
acquiring any Ownership Interest in this Class A-R Certificate shall be a
Permitted Transferee and shall promptly notify the Securities Administrator of
any change or impending change in its status as a Permitted Transferee, (ii) no
Ownership Interest in this Class A-R Certificate may be registered on the
Closing Date or thereafter transferred, and the Securities Administrator shall
not register the Transfer of this Certificate unless, in addition to the
certificates required to be delivered to the Securities Administrator under
Section 5.02(b) of the Agreement, the Securities Administrator shall have been
furnished with a Transfer Affidavit of the initial owner or the proposed
transferee in the form attached as Exhibit G to the Agreement, (iii) each Person
holding or acquiring any Ownership Interest in this Class A-R Certificate shall
agree (A) to obtain a Transfer Affidavit from any other Person to whom such
Person attempts to Transfer its Ownership Interest this Class A-R Certificate,
(B) to obtain a Transfer Affidavit from any Person for whom such Person is
acting as nominee, Securities Administrator or agent in connection with any
Transfer of this Class A-R Certificate, (C) not to cause income with respect to
the Class A-R Certificate to be attributable to a foreign permanent
establishment or fixed base, within the meaning of an applicable income tax
treaty, of such Person or any other U.S. Person and (D) not to Transfer the
Ownership Interest in this Class A-R Certificate or to cause the Transfer of the
Ownership Interest in this Class A-R Certificate to any other Person if it has
actual knowledge that such Person is a Non-Permitted Transferee and (iv) any
attempted or purported Transfer of the Ownership Interest in this Class A-R
Certificate in violation of the provisions herein shall be absolutely null and
void and shall vest no rights in the purported Transferee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
▇▇▇▇▇ FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
By:____________________________________
Authenticated:
By:_________________________________
Authorized Signatory of
▇▇▇▇▇ FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
BCAP LLC
BCAP LLC Trust 2008-IND1
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as BCAP LLC Trust 2008-IND1 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 Securities Administrator 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 Securities Administrator and the other parties to
the Agreement.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such 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 for each
Distribution Date is the last Business Day of the monthly immediately preceding
the month in which such Distribution Date occurs.
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 Securities Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder shall
satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office designated by the
Securities Administrator for such purposes, 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
Securities Administrator and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Securities Administrator and the
other parties to the Agreement with the consent of the Holders of Certificates
affected by such amendment evidencing the requisite Percentage Interest, as
provided in the Agreement. Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Securities Administrator upon surrender of this
Certificate for registration of transfer at the office designated by the
Securities Administrator for such purposes, accompanied by a written instrument
of transfer in form satisfactory to the Securities Administrator 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 Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Securities Administrator, the Depositor, and any agent of the
Securities Administrator or the Depositor may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
the Depositor, the Securities Administrator, nor any such agent shall be
affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Person specified in Section 11.01 of the Agreement
will have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
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 Securities Administrator 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.
EXHIBIT C
FORM OF CLASS P AND CLASS L CERTIFICATE
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFEROR
CERTIFICATE IN THE FORM OF EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND
EITHER (I) THE SECURITIES ADMINISTRATOR RECEIVES A RULE 144A LETTER IN THE FORM
OF EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN OR (II) THE SECURITIES
ADMINISTRATOR RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE EXPENSE OF THE
TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT-REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR EITHER A REPRESENTATION
LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR A PLAN
SUBJECT TO APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR A PERSON INVESTING
ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN. NOTWITHSTANDING ANYTHING ELSE
TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON
BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF ERISA, SECTION 4975 OF
THE CODE OR SIMILAR LAW WITHOUT THE REPRESENTATION LETTER SATISFACTORY TO THE
SECURITIES ADMINISTRATOR AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
Certificate No. : [P][L]
Cut-off Date : January 1, 2008
First Distribution Date : February 25, 2008
Percentage Interest of this
Certificate ("Denomination") : 100%
CUSIP : Class P: [05531C AM2]
Class L: [05531C AN0]
ISIN : Class P: [US05531CAM29]
Class L: [US05531CAN02]
BCAP LLC
BCAP LLC Trust 2008-IND1
Mortgage Pass-Through Certificates, Series 2008-IND1
[Class P] [Class L]
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Certificate does not evidence an obligation
of, or an interest in, and is not guaranteed by the Depositor or the Securities
Administrator referred to below or any of their respective affiliates. Neither
this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that [_______________________] is the registered
owner of the Percentage Interest evidenced by this Certificate (obtained by
dividing the Denomination of this Certificate by the aggregate of the
Denominations of all Certificates of the Class to which this Certificate
belongs) in certain monthly distributions pursuant to a Pooling and Servicing
Agreement dated as of the Cut-off Date specified above (the "Agreement") between
BCAP LLC, as depositor (the "Depositor"), ▇▇▇▇▇ Fargo Bank, N.A., as Master
Servicer (the "Master Servicer"), and as Securities Administrator (the
"Securities Administrator"), Deutsche Bank National Trust Company, as Custodian
(the "Custodian") and HSBC Bank USA, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
This Certificate does not have a Pass-Through Rate and will be
entitled to distributions only to the extent set forth in the Agreement. In
addition, any distribution of the proceeds of any remaining assets of the Trust
will be made only upon presentment and surrender of this Certificate at the
office designated by the Securities Administrator for such purposes or the
office or agency maintained by the Securities Administrator.
No transfer of a Certificate of this Class shall be made unless such
disposition is exempt from the registration requirements of the Securities Act
of 1933, as amended (the "1933 Act"), and any applicable state securities laws
or is made in accordance with the 1933 Act and such laws. In the event of any
such transfer, the Securities Administrator shall require the transferor to
execute a transferor certificate (in substantially the form attached to the
Agreement) and deliver either (i) a Rule 144A Letter, in either case
substantially in the form attached to the Agreement, or (ii) a written Opinion
of Counsel to the Securities Administrator that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from the 1933 Act or is being made pursuant to the 1933 Act, which
Opinion of Counsel shall be an expense of the transferor. No transfer of a
Certificate of this Class shall be made unless the Securities Administrator
shall have received either (i) a representation letter from the transferee of
such Certificate, acceptable to and in form and substance satisfactory to the
Securities Administrator, to the effect that such transferee is not an employee
benefit plan subject to Section 406 of ERISA or Section 4975 of the Code or any
materially similar provisions of applicable federal, state or local law
("Similar Law") or a person acting on behalf of or investing plan assets of any
such plan, which representation letter shall not be an expense of the Securities
Administrator.
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 authenticated by an
authorized signatory of the Securities Administrator.
* * *
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
▇▇▇▇▇ FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
By:____________________________________
Authenticated:
By:_________________________________
Authorized Signatory of
▇▇▇▇▇ FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
BCAP LLC
BCAP LLC Trust 2008-IND1
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as BCAP LLC Trust 2008-IND1 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 Securities Administrator 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 and the other parties to the Agreement.
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 for each
Distribution Date is the last Business Day of the month immediately 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 Securities Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder shall
satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office designated by the
Securities Administrator for such purposes 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
Securities Administrator and the rights of the Certificateholders under the
Agreement at any time by the Securities Administrator and the other parties to
the Agreement with the consent of the Holders of Certificates affected by such
amendment evidencing the requisite Percentage Interest, as provided in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Securities Administrator upon surrender of this
Certificate for registration of transfer at the office designated by the
Securities Administrator for such purposes, accompanied by a written instrument
of transfer in form satisfactory to the Securities Administrator 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 Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Securities Administrator, the Depositor and any agent of the
Securities Administrator or the Depositor may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
the Securities Administrator, the Depositor, nor any such agent shall be
affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Principal Balance, the Person specified in Section 11.01 of the Agreement will
have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
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 Securities Administrator 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.
EXHIBIT D
FORM OF REQUEST FOR RELEASE
(for Deutsche Bank National Trust Company, as custodian)
In connection with the administration of the Mortgage Loans held by
you as custodian, we request the release, and acknowledge receipt, of the
(Custodial File/[specify documents]) for the Mortgage Loan described below, for
the reason indicated.
Mortgagor's Name, Address & Zip Code:
-------------------------------------
Mortgage Loan Number:
---------------------
Send Custodial File to:
-----------------------
Reason for Requesting Documents (check one)
-------------------------------------------
_______ 1. Mortgage Loan Paid in Full. (The requestor hereby certifies
that all amounts received in connection therewith have been
credited to the Collection Account pursuant to the Pooling and
Servicing Agreement.)
_______ 2. Mortgage Loan Repurchased Pursuant to any or all of the
Pooling and Servicing Agreement, the applicable Servicing
Agreements or the Assignment Agreements. (The requestor hereby
certifies that the Repurchase Price (as defined in the
applicable agreement) has been credited to the Collection
Account pursuant to the Pooling and Servicing Agreement.)
_______ 3. Mortgage Loan Liquidated by _________________. (The requestor
hereby certifies that all proceeds of foreclosure, insurance,
condemnation or other liquidation have been finally received
and credited to the Collection Account pursuant to the Pooling
and Servicing Agreement.)
_______ 4. Mortgage Loan in Foreclosure.
_______ 5. Other (explain).
If box 1, 2 or 3 above is checked, and if all or part of the
Custodial File was previously released to us, please release to us our previous
request and receipt on file with you, as well as any additional documents in
your possession relating to the specified Mortgage Loan.
Capitalized terms not defined herein shall have the meanings set
forth in the Pooling and Servicing Agreement, dated as of January 1, 2008 (the
"Pooling and Servicing Agreement"), between BCAP LLC, as depositor, ▇▇▇▇▇ Fargo
Bank, N.A., as master servicer and securities administrator, Deutsche Bank
National Trust Company, as custodian and HSBC Bank USA, National Association, as
trustee.
I, the undersigned, hereby certify that the above statements are
true and correct and set my name hereof on this __ day of ___________, 200_.
[REQUESTOR]
By: ____________________________________
Name:
Title:
If box 4 or 5 above is checked, upon our return of all of the above
documents to you as the custodian, please acknowledge your receipt by signing in
the space indicated below, and returning this form, if requested.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as a Custodian
By: _______________________________
Name:
Title
EXHIBIT E
FORM OF INITIAL CERTIFICATION OF CUSTODIAN
[date]
BCAP LLC
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
IndyMac Bank, F.S.B.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Secondary Marketing - Transaction
HSBC Bank USA, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Pooling and Servicing Agreement, dated as of January 1,
2008, among BCAP LLC, as depositor, ▇▇▇▇▇ Fargo Bank,
N.A., as master servicer and securities administrator,
Deutsche Bank National Trust Company, as custodian and
HSBC Bank USA, National Association, as trustee
------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned, as
Custodian, certifies that it has received:
(i) the original Mortgage Note, endorsed as provided in the
following form: "Pay to the order of ________, without recourse"; and
(ii) except with respect to a MERS Loan, an executed Assignment
of the Mortgage (which may be included in a blanket assignment or
assignments).
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to such
Mortgage Loan.
The Custodian 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 Custodian makes no representations as to:
(i) the validity, legality, sufficiency, enforceability, recordability 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, ownership, title, effectiveness or suitability of
any such Mortgage Loan or the perfection or priority of any Mortgage.
Notwithstanding anything herein to the contrary, the Custodian 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 Custodian
By:_________________________________
Name:
Title:
EXHIBIT F
FORM OF DOCUMENT CERTIFICATION
AND EXCEPTION REPORT OF CUSTODIAN
[date]
BCAP LLC
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
IndyMac Bank, F.S.B.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Secondary Marketing - Transaction
HSBC Bank USA, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Pooling and Servicing Agreement, dated as of January 1,
2008, among BCAP LLC, as depositor, ▇▇▇▇▇ Fargo Bank,
N.A., as master servicer and securities administrator,
Deutsche Bank National Trust Company, as custodian and
HSBC Bank USA, National Association, as trustee
-----------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned, as
Custodian, hereby certifies that as to each Mortgage Loan (other than any
Mortgage Loan paid in full or listed on the attached Document Exception Report)
it has received:
(a) the original Mortgage Note, endorsed without recourse in blank
by the last endorsee, including all intervening endorsements showing a
complete chain of endorsement from the originator to the last endorsee;
(b) the original Assignment of Mortgage in blank (except if
recorded), unless the Mortgage Loan is a MERS Mortgage Loan;
(c) the related original Mortgage and evidence of its recording or,
in certain limited circumstances, a certified copy of the mortgage with
evidence of recording;
(d) except with respect to a MERS Loan, originals of any intervening
Mortgage assignment or certified copies in either case evidencing
recording;
(e) originals of all assumption or modification agreements or
certified copies thereof, in either case with evidence of recording
thereon;
(f) an original or copy of a title insurance policy or, in the event
such title policy is unavailable, a certified true copy of the related
policy binder or commitment for title certified to be true and complete by
the title insurance company, Original Loan Seller or escrow company;
(g) to the extent applicable, an original or copy of a power of
attorney; and
(h) the original or, if unavailable, a copy of a security agreement,
chattel mortgage or equivalent document executed in connection with the
Mortgage, if any.
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 2, 8, 32 and 34 of the
Mortgage Loan Schedule accurately reflects information set forth in the
Custodial File.
The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review of the Custodial File
specifically required in the Pooling and Servicing Agreement. The Custodian
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, ownership, title, effectiveness or
suitability of any such Mortgage Loan or the perfection or priority of any
Mortgage. Notwithstanding anything herein to the contrary, the Custodian 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 Custodian
By:____________________________________
Name:
Title:
EXHIBIT G
FORM OF RESIDUAL TRANSFER AFFIDAVIT
BCAP LLC Trust 2008-IND1,
Mortgage Pass-Through Certificates, Series 2008-IND1
STATE OF )
) ss.:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as
follows:
1. The undersigned is an officer of ___________________, the
proposed Transferee of an Ownership Interest in a Class A-R Certificate (the
"Certificate") issued pursuant to the Pooling and Servicing Agreement (the
"Agreement"), between BCAP LLC, as depositor (the "Depositor"), ▇▇▇▇▇ Fargo
Bank, N.A., as master servicer (the "Master Servicer") and securities
administrator (the "Securities Administrator"), Deutsche Bank National Trust
Company, as custodian (the "Custodian") and HSBC Bank USA, National Association,
as trustee (the "Trustee"). Capitalized terms used, but not defined herein,
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 for the benefit of the Depositor, the Securities Administrator and
the Trustee.
2. The Transferee is, as of the date hereof, and will be, as of the
date of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate for its own account. The Transferee has no
knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a
tax will be imposed on Transfers of the Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability for
the tax if the 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 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) 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 Securities Administrator a certificate
substantially in the form set forth as Exhibit H 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 has historically paid its debts as they have come
due, intends to pay its debts as they come due in the future, and understands
that the taxes payable with respect to the Certificate may exceed the cash flow
with respect thereto in some or all periods and intends to pay such taxes as
they become due. 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 will not cause income from the Certificate to be
attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of the Transferee or any other U.S.
person.
12. Check one of the following:
[_] The present value of the anticipated tax liabilities associated
with holding the Certificate, as applicable, does not exceed the sum of:
(i) the present value of any consideration given to the Transferee
to acquire such Certificate;
(ii) the present value of the expected future distributions on such
Certificate; and
(iii) the present value of the anticipated tax savings associated
with holding such Certificate as the related REMIC generates losses.
For purposes of this calculation, (i) the Transferee is assumed to
pay tax at the highest rate currently specified in Section 11(b) of the Code
(but the tax rate in Section 55(b)(1)(B) of the Code may be used in lieu of the
highest rate specified in Section 11(b) of the Code if the Transferee has been
subject to the alternative minimum tax under Section 55 of the Code in the
preceding two years and will compute its taxable income in the current taxable
year using the alternative minimum tax rate) and (ii) present values are
computed using a discount rate equal to the short-term Federal rate prescribed
by Section 1274(d) of the Code for the month of the transfer and the compounding
period used by the Transferee:
[_] The transfer of the Certificate complies with U.S. Treasury
Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly:
(i) the Transferee is an "eligible corporation," as defined in U.S.
Treasury Regulations Section 1.860E-1(c)(6)(i), as to which income from
the Certificate will only be taxed in the United States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the transfer, the
Transferee had gross assets for financial reporting purposes (excluding
any obligation of a person related to the Transferee within the meaning of
U.S. Treasury Regulations Section 1.860E-1(c)(6)(ii)) in excess of $100
million and net assets in excess of $10 million;
(iii) the Transferee will transfer the Certificate only to another
"eligible corporation," as defined in U.S. Treasury Regulations Section
1.860E-1(c)(6)(i), in a transaction that satisfies the requirements of
Sections 1.860E-1(c)(4)(i), (ii) and (iii) and Section 1.860E-1(c)(5) of
the U.S. Treasury Regulations; and
(iv) the Transferee determined the consideration paid to it to
acquire the Certificate based on reasonable market assumptions (including,
but not limited to, borrowing and investment rates, prepayment and loss
assumptions, expense and reinvestment assumptions, tax rates and other
factors specific to the Transferee) that it has determined in good faith.
[_] None of the above.
13. The Transferee is not an employee benefit plan that is subject
to Title I of ERISA or a plan that is subject to Section 4975 of the Code or a
plan subject to any federal, state or local law that is substantially similar to
Title I of ERISA or Section 4975 of the Code, and the Transferee is not acting
on behalf of or investing plan assets of such a plan.
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__
EXHIBIT H
FORM OF TRANSFEROR CERTIFICATE
__________, 20__
BCAP LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Ian ▇▇▇▇▇▇▇▇
▇▇▇▇▇ Fargo Bank, N.A.,
as Securities Administrator
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: BCAP 2008-IND1
Re: BCAP LLC Trust 2008-IND1,
Mortgage Pass-Through Certificates Series 2008-IND1, Class [o]
--------------------------------------------------------------
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we
certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being disposed
by us in a transaction that is exempt from the registration requirements of the
Act, (b) we have not offered or sold any Certificates to, or solicited offers to
buy any Certificates from, any person, or otherwise approached or negotiated
with any person with respect thereto, in a manner that would be deemed, or taken
any other action which would result in, a violation of Section 5 of the Act and
(c) to the extent we are disposing of a Residual Certificate, (A) we have no
knowledge the Transferee is not a Permitted Transferee and (B) after conducting
a reasonable investigation of the financial condition of the Transferee, we have
no knowledge and no reason to believe that the Transferee will not pay all taxes
with respect to the Residual Certificates as they become due and (C) we have no
reason to believe that the statements made in paragraphs 7, 10 and 11 of the
Transferee's Residual Transfer Affidavit are false.
Very truly yours,
______________________________________
Print Name of Transferor
By:
Authorized Officer
EXHIBIT I
FORM OF RULE 144A LETTER
____________, 20__
BCAP LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Ian ▇▇▇▇▇▇▇▇
▇▇▇▇▇ Fargo Bank, N.A.,
as Securities Administrator
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: BCAP 2008-IND1
Re: BCAP LLC Trust 2008-IND1,
Mortgage Pass-Through Certificates Series 2008-IND1, Class [o]
--------------------------------------------------------------
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 we are purchasing a Class A-1 Certificate,
Class A-2 Certificate, Class A-3 Certificate, Class A-X Certificate, Class B-1
Certificate, Class B-2 Certificate or Class B-3 Certificate, or we are not an
employee benefit plan that is subject to Title I of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or a plan or arrangement that
is subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the
"Code"), or a plan subject to any federal, state or local law materially similar
to the foregoing provisions of ERISA or the Code, 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, with respect to a Class B-4 Certificate, Class
B-5 Certificate or Class B-6 Certificate that has been the subject of an
ERISA-Qualifying Underwriting, the purchaser is an insurance company that is
purchasing this certificate with funds contained in an "insurance company
general account" (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 ("PTCE 95-60")) and the purchase and holding
of such 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 Securities Act or
that would render the disposition of the Certificates a violation of Section 5
of the Securities Act or require registration pursuant thereto, nor will act,
nor has authorized or will authorize any person to act, in such manner with
respect to the Certificates and (f) we are a "qualified institutional buyer" as
that term is defined in Rule 144A under the Securities Act and have completed
either of the forms of certification to that effect attached hereto as Annex 1
or Annex 2. We are aware that the sale to us is being made in reliance on Rule
144A. We are acquiring the Certificates for our own account or for resale
pursuant to Rule 144A and further, understand that such Certificates may be
resold, pledged or transferred only (i) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (ii)
pursuant to another exemption from registration under the Securities Act.
ANNEX 1 TO EXHIBIT I
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A"), because (i) the Buyer owned
and/or invested on a discretionary basis $___________(1) in securities (except
for the excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance with Rule 144A
and (ii) the Buyer satisfies the criteria in the category marked below.
____ Corporation, etc. The Buyer is a corporation (other than a bank, savings
and loan association or similar institution), Massachusetts or similar business
trust, partnership, or charitable organization described in Section 501(c)(3) of
the Internal Revenue Code of 1986, as amended.
____ Bank. The Buyer (a) is a national bank or banking institution organized
under the laws of any State, territory or the District of Columbia, the business
of which is substantially confined to banking and is supervised by the State or
territorial banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at least $25,000,000
as demonstrated in its latest annual financial statements, a copy of which is
attached hereto.
____ Savings and Loan. The Buyer (a) is a savings and loan association, building
and loan association, cooperative bank, homestead association or similar
institution, which is supervised and examined by a State or Federal authority
having supervision over any such institutions or is a foreign savings and loan
association or equivalent institution and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual financial statements, a
copy of which is attached hereto.
____ Broker-dealer. The Buyer is a dealer registered pursuant to Section 15 of
the Securities Exchange Act of 1934.
____ Insurance Company. The Buyer is an insurance company whose primary and
predominant business activity is the writing of insurance or the reinsuring of
risks underwritten by insurance companies and which is subject to supervision by
the insurance commissioner or a similar official or agency of a State, territory
or the District of Columbia.
____ State or Local Plan. The Buyer is a plan established and maintained by a
State, its political subdivisions, or any agency or instrumentality of the State
or its political subdivisions, for the benefit of its employees.
____ ERISA Plan. The Buyer is an employee benefit plan within the meaning of
Title I of the Employee Retirement Income Security Act of 1974.
____ Investment Advisor. The Buyer is an investment advisor registered under the
Investment Advisors Act of 1940.
____ Small Business Investment Company. Buyer is a small business investment
company licensed by the U.S. Small Business Administration under Section 301(c)
or (d) of the Small Business Investment Act of 1958.
____ Business Development Company. Buyer is a business development company as
defined in Section 202(a)(22) of the Investment Advisors Act of 1940.
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer is
a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned but
subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer, the Buyer used the
cost of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the Buyer
will notify each of the parties to which this certification is made of any
changes in the information and conclusions herein. Until such notice is given,
the Buyer's purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the Buyer is a
bank or savings and loan as provided above, the Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after they
become available.
________________________________
Print Name of Transferee
By:____________________________________
Name:
Title:
Date:
-------------
(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.
ANNEX 2 TO EXHIBIT I
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.
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 Transferee
By:_______________________________
Name:
Title:
IF AN ADVISER:
__________________________________
Print Name of Buyer
Date:______________________________
EXHIBIT J
▇▇▇▇▇▇▇▇-▇▇▇▇▇ CERTIFICATION
[DATE]
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: BCAP TRUST LLC 2008-IND1
I, [identify the certifying individual], certify that:
1. I have reviewed the report on Form 10-K and all reports on Form
10-D required to be filed in respect of the period covered by this report on
Form 10-K of BCAP TRUST LLC 2008-IND1 (the "Exchange Act periodic reports");
2. Based on my knowledge, the Exchange Act periodic reports, taken
as a whole, do not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading with respect
to the period covered by this report;
3. Based on my knowledge, all of the distribution, servicing and
other information required to be provided under Form 10-D for the period covered
by this report is included in the Exchange Act periodic reports;
4. [I am responsible for reviewing the activities performed by the
servicer(s) and based on my knowledge and the compliance review(s) conducted in
preparing the servicer compliance statement(s) required in this report under
Item 1123 of Regulation AB, and except as disclosed in the Exchange Act periodic
reports, the servicer(s) [has/have] fulfilled [its/their] obligations under the
servicing agreement(s) in all material respects and]
5. All of the reports on assessment of compliance with servicing
criteria for ABS and their related attestation reports on assessment of
compliance with servicing criteria for asset-backed securities required to be
included in this report in accordance with Item 1122 of Regulation AB and
Exchange Act Rules 13a-18 and 15d-18 have been included as an exhibit to this
report, except as otherwise disclosed in this report. Any material instances of
noncompliance described in such reports have been disclosed in this report on
Form 10-K.
[In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties [name of
servicer, sub-servicer, co-servicer, depositor or trustee].]
Date: _______________________
___________________________________
[Signature]
[Title]
EXHIBIT K
FORM OF SECURITIES ADMINISTRATOR CERTIFICATION TO
BE PROVIDED TO MASTER SERVICER
Re: BCAP LLC Trust 2008-IND1 (the "Trust") Mortgage Pass-Through
Certificates Series 2008-IND1, issued pursuant to the Pooling
and Servicing Agreement, dated as of January 1, 2008 (the
"Pooling and Servicing Agreement"), between BCAP LLC, as
depositor (the "Depositor"), Deutsche Bank National Trust
Company, as custodian, HSBC Bank USA, National Association, as
trustee, and ▇▇▇▇▇ Fargo Bank, N.A., as master servicer and
securities administrator
------------------------
The Securities Administrator hereby certifies to the Depositor
and its officers, directors and affiliates, and with the knowledge and intent
that they will rely upon this certification, that:
1. I have reviewed the annual report on Form 10-K for the fiscal
year [___] (the "Annual Report"), and all reports on Form 10-D required to be
filed in respect of period covered by the Annual Report (collectively with the
Annual Report, the "Reports"), of the Trust;
2. Based on my knowledge, the Reports, taken as a whole, do not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances under which
such statements were made, not misleading with respect to the period covered by
the Annual Report;
3. Based on my knowledge, the distribution information required to
be provided by the Securities Administrator under the Pooling and Servicing
Agreement for inclusion in the Reports is included in the Reports; and
4. I am responsible for reviewing the activities performed by the
Securities Administrator under the Pooling and Servicing Agreement, and based on
my knowledge and the compliance review conducted in preparing the compliance
statement of the Securities Administrator required in the Annual Report under
Item 1123 of Regulation AB, and except as disclosed in the Reports, the
Securities Administrator has fulfilled its obligations under the Pooling and
Servicing Agreement in all material respects; and
5. The report on assessment of compliance with servicing criteria
for asset-backed securities applicable of the Securities Administrator and each
Subcontractor utilized by the Securities Administrator and the related
attestation reports on assessment of compliance with servicing criteria
applicable to the Securities Administrator and any subcontractor required to be
included in the Annual Report in accordance with Item 1122 of Regulation AB and
Exchange Act Rules 13a-18 and 15d-18 has been included as an exhibit to the
Annual Report. Any material instances of non-compliance are described in such
report and have been disclosed in the Annual Report.
Date: _________________________________
▇▇▇▇▇ FARGO BANK, N.A.
By: _______________________________________
[Signature]
[Title]
EXHIBIT L
ASSIGNMENT AND RECOGNITION AGREEMENT
THIS ASSIGNMENT AND RECOGNITION AGREEMENT, dated February 13, 2008
("Agreement"), among Barclays Bank PLC (the "Assignor"), BCAP LLC ("Assignee"),
IndyMac Bank, F.S.B. (the "Servicer" or the "Company"), HSBC Bank USA, National
Association (the "Trustee") and ▇▇▇▇▇ Fargo Bank, N.A. ("▇▇▇▇▇ Fargo Bank"):
For and in consideration of the mutual promises and agreements
contained herein, and for other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
Assignment and Conveyance
1. The Assignor hereby conveys, sells, grants, transfers and assigns
to the Assignee all of the right, title, interest and obligations of the
Assignor, as purchaser, in, to and under (a) those certain Mortgage Loans listed
on the schedule (the "Mortgage Loan Schedule") attached hereto as Exhibit A (the
"Mortgage Loans") and (b) except as described below, that certain Amended and
Restated Mortgage Loan Purchase Agreement (the "Sale Agreement"), dated as of
January 1, 2008, between the Assignor, as purchaser (the "Purchaser"), and the
Company, as seller, and the Servicing Agreement (the "Servicing Agreement"),
dated as of October 1, 2006 (together with the Sale Agreement, the "Sale and
Servicing Agreements"), between the Purchaser and the Company, as
seller/servicer, solely insofar as the Sale and Servicing Agreements relate to
the Mortgage Loans.
From and after the date hereof, the Servicer shall service the
Mortgage Loans in accordance with the Servicing Agreement as modified by this
Agreement.
The Assignor specifically reserves and does not assign to the
Assignee hereunder any and all right, title and interest in, to and under and
any obligations of the Assignor with respect to Sections 9.04 and 9.05 of the
Sale Agreement and any mortgage loans subject to the Sale and Servicing
Agreements that are not the Mortgage Loans set forth on the Mortgage Loan
Schedule and are not the subject of this Agreement.
Recognition of the Company
2. From and after the date hereof (the "Securitization Closing
Date"), each of the Company and the Servicer shall and does hereby recognize
that the Assignee, in connection with a securitization of the Mortgage Loans
(the "Securitization"), will transfer the Mortgage Loans and assign its rights
under the Sale and Servicing Agreements (solely to the extent set forth herein)
and this Agreement to BCAP LLC Trust 2008-IND1 (the "Trust") created pursuant to
a Pooling and Servicing Agreement, dated as of January 1, 2008 (the "Pooling and
Servicing Agreement"), among the Assignee, the Trustee, Deutsche Bank National
Trust Company and ▇▇▇▇▇ Fargo Bank, N.A., as master servicer and securities
administrator (including its successors in interest and any successor master
servicers under the Pooling and Servicing Agreement, the "Master Servicer").
Each of the Assignor, the Assignee, the Company, the Servicer, the Trustee and
the Master Servicer on behalf of the Trust hereby acknowledges and agrees that
from and after the date hereof (i) the Trust will be the owner of the Mortgage
Loans, (ii) the Company and the Servicer shall look solely to the Trust for
performance of any obligations of the Assignor insofar as they relate to the
Mortgage Loans, (iii) the Trust shall have and assume all the rights, remedies
and obligations available to the Assignor, insofar as they relate to the
Mortgage Loans, under the Sale and Servicing Agreements, including, without
limitation, the enforcement of the document delivery requirements set forth in
Section 6.03 of the Sale Agreement, and shall be entitled to enforce all of the
obligations of the Company thereunder insofar as they relate to the Mortgage
Loans, (iv) all references to the Purchaser under the Sale and Servicing
Agreements insofar as they relate to the Mortgage Loans, shall be deemed to
refer to the Trust and (v) the Mortgage Loans will be part of a "real estate
mortgage investment conduit" within the meaning of Section 860D of the Code (a
"REMIC"), and the Servicer shall service the Mortgage Loans and any real
property acquired upon default thereof (including, without limitation, making or
permitting any modification, waiver or amendment of any term of any Mortgage
Loan) in accordance with the Sale and Servicing Agreement but in no event in a
manner that would (A) cause the REMIC to fail to qualify as a REMIC or (B)
result in the imposition of a tax upon the REMIC, and all custodial accounts and
escrow accounts maintained under the Servicing Agreement with respect to the
Mortgage Loans shall be Eligible Accounts as set forth in this Agreement. None
of the Company, the Servicer or the Assignor shall amend or agree to amend,
modify, waive, or otherwise alter any of the terms or provisions of the Sale and
Servicing Agreements which amendment, modification, waiver or other alteration
would in any way affect the Mortgage Loans or the Company's or the Servicer's
performance under the Sale and Servicing Agreements with respect to the Mortgage
Loans without the prior written consent of the Master Servicer on behalf of the
Trust, which consent shall not be unreasonably withheld.
Representations and Warranties of the Company and the Servicer
3. Each of the Company and the Servicer warrants and represents to
the Assignor, the Assignee, the Trustee, the Master Servicer and the Trust as of
the date hereof that:
(a) It is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or organization, as
applicable;
(b) It has full power and authority to execute, deliver and perform
its obligations under this Agreement and has full power and authority to perform
its obligations under the Sale and Servicing Agreements to which it is a party.
The execution by it of this Agreement is in the ordinary course of its business
and will not conflict with, or result in a breach of, any of the terms,
conditions or provisions of its charter or bylaws or organization documents, as
applicable, or any legal restriction, or any material agreement or instrument to
which it is now a party or by which it is bound, or result in the violation of
any law, rule, regulation, order, judgment or decree to which its or its
property is subject. The execution, delivery and performance by it of this
Agreement have been duly authorized by all necessary action on its part. This
Agreement has been duly executed and delivered by it, and, upon the due
authorization, execution and delivery by the Assignor and the Assignee, will
constitute its valid and legally binding obligation, enforceable against it in
accordance with its terms except as enforceability may be limited by bankruptcy,
reorganization, insolvency, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally, and by general principles of
equity regardless of whether enforceability is considered in a proceeding in
equity or at law;
(c) No consent, approval, order or authorization of, or declaration,
filing or registration with, any governmental entity is required to be obtained
or made by it in connection with the execution, delivery or performance by it of
this Agreement; and
(d) There is no action, suit, proceeding or investigation pending or
to the best of its knowledge threatened against it, before any court,
administrative agency or other tribunal, which would draw into question the
validity of this Agreement or the Sale and Servicing Agreements, or which,
either in any one instance or in the aggregate, would result in any material
adverse change in its ability to perform its obligations under this Agreement or
the Sale and Servicing Agreements, and it is solvent.
Amendments to the Servicing Agreement:
4. Notwithstanding anything to the contrary contained herein or in
the Servicing Agreement, and solely with respect to mortgage loans being
serviced under the BCAP 2008-IND1 transaction, the following amendments to the
Servicing Agreement shall be effected:
(a) The following definitions set forth in the Servicing Agreement
are amended and restated in their entirety as follows:
Ancillary Income: All assumption fees, escrow account benefits, reinstatement
fees, and similar types of fees arising from or in connection with any Mortgage
(excluding late payment fees and Prepayment Penalties), to the extent not
otherwise payable to the Mortgagor under applicable law or pursuant to the terms
of the related Mortgage Note.
Business Day: Any day other than (i) a Saturday or Sunday, or (ii) a day on
which banking and savings and loan institutions in either the State of
California, the State of Maryland, the State of Minnesota or the State of Texas
are authorized or obligated by law or executive order to be closed.
Principal Prepayment Period: With respect to any Distribution Date, the calendar
month immediately preceding the month in which such Distribution Date occurs.
Remittance Date: 1:00 P.M. Eastern Standard Time on the 19th day (or if such
19th day is not a Business Day, the first Business Day immediately following) of
any month.
(b) The following definitions are hereby added to the Servicing
Agreement:
Eligible Account: The accounts of the Custodian or another depository which
accounts are (i) maintained at an Eligible Institution, or (ii) a trust account
or accounts maintained with the corporate trust department of a federal or state
chartered depository institution or trust company having capital and surplus of
not less than $50,000,000, acting in its fiduciary capacity or (iii) any other
account acceptable to the applicable Rating Agency(ies), as evidenced in
writing. Each such account may bear interest unless otherwise specified herein.
This Agreement may be amended to reduce the rating requirements in clause (i)
above pursuant to Section 12.03, provided that, the Person requesting such
amendment obtains a letter from the applicable Rating Agency(ies) stating that
such reduction in rating requirements would not result in the downgrading or
withdrawal of the respective ratings then assigned to the related securities.
Eligible Institution: A federal or state chartered depository institution or
trust company, the short-term debt obligations of which (or, in the case of a
depository institution or trust company that is the principal subsidiary of a
holding company, the debt obligations of such holding company) have a minimum
short-term rating of "A-2" by S&P, "P-2" by ▇▇▇▇▇'▇, or "F-2" by Fitch, as
applicable ("Ratings"), respectively, at the time any amounts are held on
deposit therein; provided, that following a downgrade, withdrawal, or suspension
of such institution's rating above, each account shall, within 30 calendar days,
be moved to one or more segregated trust accounts in the trust department of
such institution, or to an account at another institution that complies with the
above requirements. This Agreement may be amended to reduce the above rating
requirements pursuant to Section 12.03, provided that, the Person requesting
such amendment obtains a letter from the applicable Rating Agency(ies) stating
that such reduction in rating requirements would not result in the downgrading
or withdrawal of the respective ratings then assigned to the related securities.
Each Eligible Account shall be a separate account.
Loan in Breach: Any Mortgage Loan with respect to which a material breach of a
representation and warranty in Section 9.02 of the Purchase Agreement, as
amended by Exhibit E in this Agreement, is discovered and cannot be cured.
Permitted Investments: Any one or more of the following obligations or
securities acquired at a purchase price of not greater than par, regardless of
whether issued by the Seller or any of their respective affiliates:
(1) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or any agency or
instrumentality thereof, provided such obligations are backed by the full faith
and credit of the United States;
(2) demand and time deposits in, certificates of deposit of, or
bankers' acceptances (which shall each have an original maturity of not more
than 90 days and, in the case of bankers' acceptances, shall in no event have an
original maturity of more than 365 days or a remaining maturity of more than 30
days) denominated in United States dollars and issued by, any Depository
Institution and rated "F1+" by Fitch, "A-1+" by Standard & Poor's, "P-1" by
▇▇▇▇▇'▇ and "R-1" by DBRS (in each case, to the extent they are designated as
Rating Agencies in the Preliminary Statement);
(3) repurchase obligations with respect to any security referenced
in clause (1) above entered into with a depository institution or trust company
(acting as principal) rated A or higher by the Rating Agency;
(4) securities (which shall in no event have an original maturity of
more than 365 days) bearing interest or sold at a discount that are issued by
any corporation incorporated under the laws of the United States of America, the
District of Columbia or any state thereof and that are rated by the Rating
Agency that rates such securities in its highest long term unsecured rating
categories at the time of such investment or contractual commitment providing
for such investment;
(5) commercial paper (including both non interest bearing discount
obligations and interest bearing obligations payable on demand or on a specified
date not more than 30 days after the date of acquisition thereof) that is rated
by the Rating Agency that rates such securities in its highest short term
unsecured debt rating available at the time of such investment;
(6) units of money market funds, including money market funds (which
may be 12b-1 funds, as contemplated by the Commission under the Investment
Company Act of 1940) registered under the Investment Company Act of 1940
including funds managed or advised by the Seller, the Seller having the highest
applicable rating from the Rating Agency; and
(7) if previously confirmed in writing to the Assignee or its
designee, any other demand, money market or time deposit, or any other
obligation, security or investment, as may be acceptable to the Rating Agencies
in writing as a permitted investment of funds backing securities having ratings
equivalent to its highest initial ratings of the senior certificates;
provided, however, that no instrument set forth hereunder shall evidence either
the right to receive (a) only interest with respect to the obligations
underlying such instrument or (b) both principal and interest payments derived
from obligations underlying such instrument and the interest and principal
payments with respect to such instrument provide a yield to maturity at par
greater than 120% of the yield to maturity at par of the underlying obligations.
Pooling and Servicing Agreement: The Pooling and Servicing Agreement, dated as
of January 1, 2008, among the BCAP LLC, Deutsche Bank National Trust Company,
HSBC Bank USA, National Association and ▇▇▇▇▇ Fargo Bank, N.A.
Rating Agency: Any nationally recognized statistical rating agency rating the
securities issued in the applicable Pass-Through Transfer.
Reconstitution Date: The date on which any or all of the Mortgage Loans serviced
under this Agreement shall be removed from this Agreement and reconstituted as
part of a Pass-Through Transfer pursuant to Section 12.12 hereof. The
Reconstitution Date shall be February 13, 2008.
Repurchase Price: With respect to any Loan in Breach, an amount equal to the
then outstanding principal balance of such Loan in Breach as of the date of such
repurchase plus accrued interest thereon at the mortgage interest rate from the
date as to which interest had last been paid through the date of such
repurchase, plus the amount of any outstanding servicing advances owed to any
servicer, plus all costs and expenses incurred by the Purchaser arising out of
or based upon such breach, including without limitation costs and expenses
incurred in the enforcement of the Seller's repurchase obligation thereunder.
(c) The second paragraph of Section 2.01 of the Servicing Agreement
is hereby deleted and replaced in its entirety with the following:
"Notwithstanding anything in this Agreement to the contrary, the Seller may not
make any future advances with respect to a Mortgage Loan (except as provided in
Section 3.03 and except for Servicing Advances) and the Seller shall not (i)
permit any modification with respect to any Mortgage Loan that would change the
Mortgage Interest Rate, reduce or increase the principal balance (except for
reductions resulting from actual payments of principal) or change the final
maturity date on such Mortgage Loan (except for a reduction of interest payments
resulting from the application of the Servicemembers Civil Relief Act or any
similar state statutes), (ii) permit any modification, waiver or amendment of
any term of any Mortgage Loan that would both (A) effect an exchange or
reissuance of such Mortgage Loan under Section 1001 of the Code (or final,
temporary or proposed Treasury regulations promulgated thereunder) and (B) cause
any Trust REMIC (as defined in the related Pooling and Servicing Agreement) to
fail to qualify as a REMIC under the Code or the imposition of any tax on
"prohibited transactions" or "contributions after the startup date" under the
REMIC Provisions (as defined in the related Pooling and Servicing Agreement),
(iii) except as provided in Section 10.11, waive any prepayment premiums, or
(iv) accept payment from the related Mortgagor of an amount less than the unpaid
principal balance of such Mortgage Loan in final satisfaction thereof; provided,
however, that the Seller may take any action set forth in clauses (i) through
(iv) with respect to any Mortgage Loan in default or, which in the judgment of
the Seller, a default is reasonably foreseeable, and only to the extent the
Seller determines that such action is not materially adverse to the interests of
the Purchaser (taking into account any estimated Realized Loss (as defined in
the related Pooling and Servicing Agreement) that might result absent such
action).
If a prepayment premium or a late payment fee is waived other than as permitted
by the prior paragraph, then the Seller is required to pay the amount of such
waived prepayment premium or late payment fee, for the benefit of the Purchaser,
by depositing the amount of such waived prepayment premium or late payment fee
into the Custodial Account from its own funds, without any right of
reimbursement therefor. Such prepayment premiums shall be deposited into the
Custodial Account together with the amount prepaid on the related Mortgage Loan
at the time such prepaid amount is required to be deposited into the Custodial
Account. Such late payment fees shall be deposited into the Custodial Account
together with the late scheduled payment on the related Mortgage Loan at the
time such late scheduled payment amount is received."
(d) The word "and" in Section 2.04(vii) is hereby deleted.
(e) Section 2.04(viii) is hereby deleted and replaced in its
entirety and Section 2.04(ix) is hereby added with the following:
"(viii) any amounts required to be deposited by the Seller pursuant
to Section 2.11 in connection with the deductible clause in any blanket
hazard insurance policy; and
(ix) any prepayment premiums and late payment fees received with
respect to the Mortgage Loans."
(f) The following sentence is added at the end of Section 10.11:
"Notwithstanding anything in this Agreement to the contrary, the Seller may
waive, or permit a Subservicer to waive, in whole or in part, a prepayment
premium only under the following circumstances: (i) such waiver relates to a
default or a reasonably foreseeable default and would, in the reasonable
judgment of the Seller, maximize recovery of total proceeds taking into account
the value of such prepayment premium and the related Mortgage Loan; provided,
however, that the Seller or Subservicer may waive such prepayment premium if the
Mortgage Loan is accelerated or paid-off in connection with the workout of a
delinquent Mortgage Loan or due to the related Mortgagor's default,
notwithstanding that the terms of the Mortgage Loan or federal or state law
might permit the imposition of such prepayment premium, (ii) such prepayment
premium is not permitted to be collected by applicable federal, state or local
law or regulation or (iii) the collection of such prepayment premium would be
considered "predatory" pursuant to written guidance published or issued by any
applicable federal, state or local regulatory authority acting in its official
capacity and having jurisdiction over such matters."
(g) The first sentence of the second paragraph of Section 3.01 of
the Servicing Agreement is amended by deleting the reference to "the second
Business Day following" and is replaced with "1:00 P.M. Eastern Standard Time
on."
(h) The second sentence of the second paragraph of Section 3.01 of
the Servicing Agreement is amended by deleting the reference to "the day
following such second Business Day" and substituting in its place "the Business
Day on which such payment was due."
(i) The first paragraph of Section 3.02 of the Servicing Agreement
is deleted and replaced in its entirety with the following:
"No later than the tenth (10th) calendar day of each month (or if
such tenth day is not a Business Day, the Business Day immediately preceding
such tenth day), the Company shall furnish to the Purchaser and the Master
Servicer a report in the format set forth in Exhibit B, Exhibit C and Exhibit D
to the Assignment, Assumption and Recognition Agreement, dated as of February
13, 2008, among Barclays Bank PLC, BCAP LLC, IndyMac Bank F.S.B., HSBC Bank USA,
National Association and ▇▇▇▇▇ Fargo Bank, N.A., with respect to monthly
remittance advice, defaulted Mortgage Loans and realized loss calculations."
(j) The last paragraph of Section 13.01 of the Servicing Agreement
is amended by adding ", the Master Servicer" immediately succeeding each
reference to "Purchaser" therein.
(k) Sections 4.04 and 4.05 of the Servicing Agreement are hereby
deleted.
(l) Subsection (d) of Section 13.03 of the Servicing Agreement is
deleted and replaced in its entirety with the following: "(d) For the purpose of
satisfying the Depositor's reporting obligation under the Exchange Act with
respect to any class of asset backed securities, the Seller shall (or shall
cause each Subservicer to) within two (2) Business Days after the occurrence (i)
notify the Purchaser, the Master Servicer and any Depositor in writing of (A)
any litigation or governmental proceedings pending against the Seller or any
Subservicer that would be material to securityholders, (B) any affiliations or
relationships that develop following the closing date of a Securitization
Transaction between the Seller or any Subservicer and any of the parties
specified in clause (D) of paragraph (a) of this Section (and any other parties
identified in writing by the requesting party) with respect to such
Securitization Transaction, but only to the extent that such affiliations or
relationships do not include the Purchaser, the Depositor or any of the
respective affiliates of a party (C) any Event of Default under the terms of
this Agreement and the Servicing Agreement, any merger, consolidation or sale of
substantially all of the assets of the Seller, and (D) the Seller's entry into
an agreement with a Subservicer to perform or assist in the performance of any
of the Seller's obligations under this Agreement or the Servicing Agreement and
(ii) provide to the Purchaser, the Master Servicer and any Depositor a
description of such proceedings, affiliations or relationships."
(m) Subsection (e) of Section 13.03 of the Servicing Agreement is
amended by adding ", the Master Servicer" immediately succeeding each reference
to "Purchaser" therein.
(n) Section 13.03(f) of the Servicing Agreement is deleted and
replaced in its entirety with the following:
"(f) In addition to such information as the Seller, as servicer, is
obligated to provide pursuant to other provisions of this Agreement, not later
than ten days prior to the deadline for the filing of any distribution report on
Form 10-D in respect of any Securitization Transaction that includes any of the
Mortgage Loans serviced by the Seller or any Subservicer, the Seller or such
Subservicer, as applicable, shall, to the extent the Seller or such Subservicer
has knowledge, provide to the party responsible for filing such report
(including, if applicable, the Master Servicer) notice of the occurrence of any
of the following events along with all information, data, and materials related
thereto as may be required to be included in the related distribution report on
Form 10-D (as specified in the provisions of Regulation AB referenced below):
(i) any material modifications, extensions or waivers of pool
asset terms, fees, penalties or payments during the distribution
period or that have cumulatively become material over time (Item
1121(a)(11) of Regulation AB);
(ii) material breaches of pool asset representations or
warranties or transaction covenants (Item 1121(a)(12) of Regulation
AB); and
(iii) information regarding new asset-backed securities
issuances backed by the same pool assets, any pool asset changes
(such as, additions, substitutions or repurchases), and any material
changes in origination, underwriting or other criteria for
acquisition or selection of pool assets (Item 1121(a)(14) of
Regulation AB).
(g) The Seller shall provide to the Purchaser, any Master Servicer and any
Depositor, evidence of the authorization of the person signing any certification
or statement, copies or other evidence of Fidelity Bond Insurance and Errors and
Omission Insurance, financial information and reports, and such other
information related to the Seller or any Subservicer or the Seller or such
Subservicer's performance hereunder.
(o) Section 13.04 of the Servicing Agreement is amended by adding ",
the Master Servicer" immediately succeeding each reference to "Purchaser"
therein.
(p) Clauses (i), (ii) and (iii) of Section 13.05 of the Servicing
Agreement are hereby amended by adding ", the Master Servicer" immediately
succeeding each reference to "Purchaser" therein.
(q) Subsection (iv) of Section 13.05 of the Servicing Agreement is
amended by deleting the reference to "deliver to the Purchaser," and
substituting in its place "deliver and cause each Subservicer and Subcontractor
described in clause (iii) to provide to the Purchaser, the Master Servicer,".
(r) Subsection (b) of Section 13.05 of the Servicing Agreement is
amended by deleting the reference to "Section 13.05(a)(i)" and substituting in
its place "Section 13.05(a)(iii)" and deleting the phrase "Exhibit 10" and
substituting in its place "Exhibit 12".
(s) the reference to Sections "13.03(c) and (e)" in the third
sentence of subsection (a) of Section 13.06 of the Servicing Agreement is
deleted and substituted with "Section 13.03(c), (e), (f) and (g)".
(t) The following language is hereby added as the paragraph
immediately after paragraph (iii) of Section 13.07 of the Servicing Agreement:
"(iv) the negligence bad faith or willful misconduct of the Seller in connection
with its performance under this Article XIII. If the indemnification provided
for herein is unavailable or insufficient to hold harmless an Indemnified Party,
then the Seller agrees that it shall contribute to the amount paid or payable by
such Indemnified Party as a result of any claims, losses, damages or liabilities
incurred by such Indemnified Party in such proportion as is appropriate to
reflect the relative fault of such Indemnified Party on the one hand and the
Seller on the other."
(u) The last sentence of the last paragraph of Section 13.06 of the
Servicing Agreement is deleted and replaced in its entirety with the following:
"The Seller shall be responsible for obtaining from each Subcontractor and
Subservicer and delivering to the Purchaser, the Master Servicer and any
Depositor any assessment of compliance and attestation and the other
certifications required to be delivered by such Subservicer and such
Subcontractor under Section 13.05, in each case as and when required to be
delivered."
(v) The first paragraph of subsection (a) of Section 13.07 of the
Servicing Agreement is amended as follows:
(i) the reference to "each Person responsible for the
preparation" is deleted and substituted in its place with "each
Person (including, but not limited to, the Master Servicer)
responsible for the preparation" and
(ii) the phrase "(each, an "Indemnified Party")" shall be
added immediately following the reference to "present and former
directors, officers, employees and agents of each of the foregoing
and of the Depositor" and the word "claims" shall be added
immediately preceding the phrase "losses, damages, penalties,".
(w) The phrase "any breach by the Seller of its obligations under
this Article XIII, including particularly" is added to the beginning of
subsection (a)(ii) of Section 13.07 of the Servicing Agreement.
(x) The phrase "Interim Service" in the last paragraph of subsection
(a) of Section 13.07 of the Servicing Agreement is deleted and substituted with
"the Seller".
(y) The phrase "(and appoint a successor servicer reasonably
acceptable to the Master Servicer)" is added immediately after the phrase "of
any compensation to the Seller" in subsection (b)(i) of Section 13.07 of the
Servicing Agreement.
(z) Subsection (b)(ii) of Section 13.07 of the Servicing Agreement
is amended by deleting the phrase "ten calendar days" and substituting in its
place "five calendar days" and adding the phrase ", the Master Servicer"
immediately preceding the first reference to "the Purchaser" therein.
(aa) The following language is hereby added as Section 13.08
immediately following Section 13.07 of the Servicing Agreement:
"Section 13.08 Third Party Beneficiary.
For purposes of this Article XIII and any related provisions
thereto, each Master Servicer shall be considered a third-party beneficiary of
this Agreement, entitled to all the rights and benefits hereof as if it were a
direct party to this Agreement."
(bb) Exhibit 12 of the Servicing Agreement is amended by adding "X"s
in each box of the "Applicable Servicing Criteria" column.
Amendments to the Purchase Agreement
5. Sections 9.01 and 9.02 of the Purchase Agreement are hereby
deleted and replaced in their entirety with Exhibit E in this Agreement.
Remedies for Breach of Representations and Warranties
6. Each of the Company and the Servicer hereby acknowledges and
agrees that the remedies available to the Assignor, the Assignee and the Trust
in connection with any breach of the representations and warranties made by it
set forth in Subsection 9.01 and 9.02 of the Sale Agreement shall be as set
forth in Subsection 9.03 of the Sale Agreement as if they were set forth herein
(including without limitation the repurchase and indemnity obligations set forth
therein).
Recordation of Assignments of Mortgages
7. To the extent not previously delivered to the Purchaser pursuant
to the IndyMac Sale Agreement, on or prior to the Securitization Closing Date,
the Original Loan Seller (as defined in the Pooling and Servicing Agreement)
shall deliver to the Deutsche Bank National Trust Company (the "Custodian"),
Assignments of Mortgages (as defined in the Pooling and Servicing Agreement), in
blank, for each Mortgage Loan that is not a MERS Loan (as defined in the Pooling
and Servicing Agreement). No later than thirty (30) Business Days (as defined in
the Pooling and Servicing Agreement) following the later of the Securitization
Closing Date and the date of receipt by the Servicer of the complete recording
information for a Mortgage (as defined in the Pooling and Servicing Agreement),
the Servicer shall promptly submit or cause to be submitted for recording, at
the expense of the Original Loan Seller and at no expense to the Trust Fund (as
defined in the Pooling and Servicing Agreement), the Trustee, the Servicer, the
Custodian, the Master Servicer, the Securities Administrator (as defined in the
Pooling and Servicing Agreement) or the Depositor, in the appropriate public
office for real property records, each Assignment of Mortgage referred to in
Section 2.01(b)(ii) of the Pooling and Servicing Agreement. Notwithstanding the
foregoing, however, for administrative convenience and facilitation of servicing
and to reduce closing costs, the Assignments of Mortgage shall not be required
to be completed and submitted for recording with respect to any Mortgage Loan
(i) if the Trustee and each Rating Agency have received an Opinion of Counsel
(as defined in the Pooling and Servicing Agreement), satisfactory to the Trustee
and each Rating Agency to the effect that the recordation of such Assignments of
Mortgage in any specific jurisdiction is not necessary to protect the Trustee's
interest in the related Mortgage Note, (ii) if such Mortgage Loan is a MERS Loan
or (iii) if the Rating Agencies have each notified the Depositor and the
Servicer in writing that not recording any such Assignments of Mortgage would
not cause the initial ratings on any Certificates (as defined in the Pooling and
Servicing Agreement) to be downgraded or withdrawn; provided, however, that the
Servicer shall not be held responsible or liable for any loss that occurs
because an Assignment of Mortgage was not recorded, but only to the extent the
Servicer does not have prior knowledge of the act or omission that causes such
loss. Unless the Depositor gives the Servicer notice to the contrary, the
Depositor is deemed to have given the Servicer notice that the condition set
forth in clause (iii) above is applicable. In addition to the foregoing, the
Servicer shall cause each Assignment of Mortgage to be recorded in accordance
with Accepted Servicing Practices (as defined in the Pooling and Servicing
Agreement) in order to convey, upon foreclosure, the title of any Mortgaged
Property (as defined in the Pooling and Servicing Agreement) to the Trust. If
the Assignment of Mortgage is to be recorded, the applicable Mortgage shall be
assigned by the Original Loan Seller, at the expense of the Original Loan Seller
to "HSBC Bank USA, National Association, as trustee under the Pooling and
Servicing Agreement dated as of January 1, 2008, BCAP LLC Trust 2008 IND1." In
the event that any such Assignment of Mortgage is lost or returned unrecorded
because of a defect therein, the Original Loan Seller shall promptly cause to be
delivered a substitute Assignment of Mortgage to cure such defect and thereafter
cause each such assignment to be duly recorded at no expense to the Trust Fund.
Termination upon Liquidation or Purchase of the Mortgage Loans
8. The Servicer shall have the right to purchase the Mortgage Loans
under the provisions of Section 11.01 of the Pooling and Servicing Agreement,
which are summarized as of the Closing Date as follows:
The Servicer may, at its option, on any Distribution Date (as defined in the
Pooling and Servicing Agreement) on which the aggregate of the Stated Principal
Balances (as defined in the Pooling and Servicing Agreement) of the Mortgage
Loans (after giving effect to scheduled payments of principal due during the
related Due Period (as defined in the Pooling and Servicing Agreement), to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) on such date is equal to or less than 10%
of the aggregate Stated Principal Balance of the Mortgage Loans on the Cut-off
Date, purchase, on such Distribution Date, all of the outstanding Mortgage Loans
and REO Properties at the price equal to the sum of (i) 100% of the unpaid
principal balance of each Mortgage Loan (other than in respect of REO Property)
plus accrued and unpaid interest thereon at the applicable Mortgage Rate, (ii)
the lesser of (x) the appraised value of any REO Property as determined by the
higher of two appraisals completed by two independent appraisers selected by the
Servicer at the expense of the Servicer, and (y) the unpaid principal balance of
each Mortgage Loan related to any REO Property, in each case plus accrued and
unpaid interest thereon at the applicable Mortgage Rate, (iii) all unreimbursed
principal and interest advances, Servicing Advances and indemnification payments
payable to the Servicer, and (iv) any unreimbursed indemnification payments
payable to the Custodian, the Master Servicer, the Securities Administrator and
the Trustee under the Pooling and Servicing Agreement. In connection with any
such purchase pursuant to the preceding paragraph, the Servicer shall remit to
the Securities Administrator for deposit in the Distribution Account (as defined
in the Pooling and Servicing Agreement) all amounts then on deposit in the
Custodial Account, which deposit shall be deemed to have occurred immediately
preceding such purchase.
Purchase of the Certificates by IndyMac
9. The Servicer hereby agrees that it will cause any affiliate that
is purchasing the Certificates on the Closing Date to deliver on such Closing
Date an officer's certificate, certifying that such affiliate is purchasing the
Certificates for investment purposes and not with a view to distribution.
10. If the Servicer or its affiliate proposes to sell the
Certificates to an unaffiliated party within one year after the Closing Date,
the Servicer or its affiliate shall cause written notice to be provided to the
Assignee within 20 (twenty) Business Days prior to such proposed sale. Within 5
(five) Business Days of receipt of such notice, the Assignee may require the
Servicer or its affiliate to update the Prospectus and Prospectus Supplement in
connection with any such sale of the Certificates in a manner satisfactory to
the Assignee. The Assignee agrees to cooperate with the Servicer in connection
with each update by providing any information regarding the Assignee that the
Assignee reasonably determines necessary to update the Prospectus Supplement and
Prospectus. All costs and expenses associated with such updates to the
Prospectus and Prospectus Supplement shall be the responsibility of the Servicer
and its affiliates and none of the Assignor, Assignee or any of their affiliates
shall be responsible for any costs and expenses associated therewith. In
connection with each such update to the Prospectus and Prospectus Supplement,
the Servicer hereby agrees to indemnify the Assignee, Assignor and their
affiliates pursuant to an indemnification and contribution agreement in
substantially the form attached hereto as Exhibit A.
Miscellaneous
11. This Agreement shall be construed in accordance with the laws of
the State of New York, without regard to conflicts of law principles, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
12. No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced, with the prior
written consent of the Master Servicer.
13. This Agreement shall inure to the benefit of (i) the parties
hereto and their respective successors and assigns and (ii) the Trust. Any
entity into which Assignor, Assignee, the Servicer or Company may be merged or
consolidated shall, without the requirement for any further writing, be deemed
Assignor, Assignee, the Servicer or Company, respectively, hereunder.
14. Each of this Agreement and the Sale and Servicing Agreements
shall survive the conveyance of the Mortgage Loans and the assignment of the
Sale and Servicing Agreements (to the extent assigned hereunder) by the Assignor
to Assignee and by Assignee to the Trust and nothing contained herein shall
supersede or amend the terms of the Sale and Servicing Agreements.
15. This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original and all such
counterparts shall constitute one and the same instrument.
16. In the event that any provision of this Agreement conflicts with
any provision of any Sale and Servicing Agreement with respect to the Mortgage
Loans, the terms of this Agreement shall control.
17. Capitalized terms used in this Agreement (including the exhibits
hereto) but not defined in this Agreement shall have the meanings given to such
terms in the Sale and Servicing Agreements
18. All directions, demands and notices hereunder shall be in
writing and shall be deemed to have been duly given when delivered to:
In the case of the Assignor:
Barclays Bank PLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
In the case of the Depositor:
BCAP LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Barclays Bank PLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
In the case of the Trustee:
HSBC Bank USA, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
In the case of the Company and Servicer:
IndyMac Bank, F.S.B.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Secondary Marketing - Transaction Management
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
In the case of the Master Servicer:
for the purposes of notices and delivery
of reports:
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services-BCAP 2008-IND1
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇.▇. ▇▇▇ ▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Client Manager-BCAP 2008-IND1
with a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Client Manager-BCAP 2008-IND1
for the purposes of remittance:
Direct to: ▇▇▇▇▇ Fargo Bank, N.A.
Bank Number ABA: ▇▇▇▇▇▇▇▇▇
Beneficiary Account #: ▇▇▇▇▇▇▇▇▇▇
Beneficiary Account Name: SAS Clearing
Reference: For Further Credit 53192300 BCAP 2008-IND1
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
INDYMAC BANK F.S.B.
By:
------------------------------------
Name:
Title:
INDYMAC BANK F.S.B.
By:
------------------------------------
Name:
Title:
BARCLAYS BANK PLC
By:
------------------------------------
Name:
Title:
BCAP LLC
By:
------------------------------------
Name:
Title:
HSBC BANK USA, NATIONAL
ASSOCIATION
By:
------------------------------------
Name:
Title:
▇▇▇▇▇ FARGO BANK, N.A., as
Master Servicer and
Securities Administrator
By:
------------------------------------
Name:
Title:
EXHIBIT A TO ASSIGNMENT AND RECOGNITION AGREEMENT
Mortgage Loan Schedule
(Delivered to Master Servicer on the Closing Date)
EXHIBIT B
---------
Standard File Layout
-----------------------------------------------------------------------------------------------------------------------------
Column Name Description Decimal Format Comment Max
Size
-----------------------------------------------------------------------------------------------------------------------------
SER_INVESTOR_NBR A value assigned by the Servicer to define a Text up to 10 digits 20
group of loans.
-----------------------------------------------------------------------------------------------------------------------------
LOAN_NBR A unique identifier assigned to each loan by Text up to 10 digits 10
the investor.
-----------------------------------------------------------------------------------------------------------------------------
SERVICER_LOAN_NBR A unique number assigned to a loan by the Text up to 10 digits 10
Servicer. This may be different than the
LOAN_NBR.
-----------------------------------------------------------------------------------------------------------------------------
BORROWER_NAME The borrower name as received in the file. It Maximum length of 30 30
is not separated by first and last name. (Last, First)
-----------------------------------------------------------------------------------------------------------------------------
SCHED_PAY_AMT Scheduled monthly principal and scheduled 2 No commas(,) or dollar 11
interest payment that a borrower is expected signs ($)
to pay, P&I constant.
-----------------------------------------------------------------------------------------------------------------------------
NOTE_INT_RATE The loan interest rate as reported by the 4 Max length of 6 6
Servicer.
-----------------------------------------------------------------------------------------------------------------------------
NET_INT_RATE The loan gross interest rate less the service 4 Max length of 6 6
fee rate as reported by the Servicer.
-----------------------------------------------------------------------------------------------------------------------------
SERV_FEE_RATE The servicer's fee rate for a loan as 4 Max length of 6 6
reported by the Servicer.
-----------------------------------------------------------------------------------------------------------------------------
SERV_FEE_AMT The servicer's fee amount for a loan as 2 No commas(,) or dollar 11
reported by the Servicer. signs ($)
-----------------------------------------------------------------------------------------------------------------------------
NEW_PAY_AMT The new loan payment amount as reported by 2 No commas(,) or dollar 11
the Servicer. signs ($)
-----------------------------------------------------------------------------------------------------------------------------
NEW_LOAN_RATE The new loan rate as reported by the 4 Max length of 6 6
Servicer.
-----------------------------------------------------------------------------------------------------------------------------
ARM_INDEX_RATE The index the Servicer is using to calculate 4 Max length of 6 6
a forecasted rate.
-----------------------------------------------------------------------------------------------------------------------------
ACTL_BEG_PRIN_BAL The borrower's actual principal balance at 2 No commas(,) or dollar 11
the beginning of the processing cycle. signs ($)
-----------------------------------------------------------------------------------------------------------------------------
ACTL_END_PRIN_BAL The borrower's actual principal balance at 2 No commas(,) or dollar 11
the end of the processing cycle. signs ($)
-----------------------------------------------------------------------------------------------------------------------------
BORR_NEXT_PAY_DUE_DATE The date at the end of processing cycle that MM/DD/YYYY 10
the borrower's next payment is due to the
Servicer, as reported by Servicer.
-----------------------------------------------------------------------------------------------------------------------------
SERV_CURT_AMT_1 The first curtailment amount to be applied. 2 No commas(,) or dollar 11
signs ($)
-----------------------------------------------------------------------------------------------------------------------------
SERV_CURT_DATE_1 The curtailment date associated with the MM/DD/YYYY 10
first curtailment amount.
-----------------------------------------------------------------------------------------------------------------------------
CURT_ADJ_ AMT_1 The curtailment interest on the first 2 No commas(,) or dollar 11
curtailment amount, if applicable. signs ($)
-----------------------------------------------------------------------------------------------------------------------------
SERV_CURT_AMT_2 The second curtailment amount to be applied. 2 No commas(,) or dollar 11
signs ($)
-----------------------------------------------------------------------------------------------------------------------------
SERV_CURT_DATE_2 The curtailment date associated with the MM/DD/YYYY 10
second curtailment amount.
-----------------------------------------------------------------------------------------------------------------------------
CURT_ADJ_ AMT_2 The curtailment interest on the second 2 No commas(,) or dollar 11
curtailment amount, if applicable. signs ($)
-----------------------------------------------------------------------------------------------------------------------------
SERV_CURT_AMT_3 The third curtailment amount to be applied. 2 No commas(,) or dollar 11
signs ($)
-----------------------------------------------------------------------------------------------------------------------------
SERV_CURT_DATE_3 The curtailment date associated with the MM/DD/YYYY 10
third curtailment amount.
-----------------------------------------------------------------------------------------------------------------------------
CURT_ADJ_AMT_3 The curtailment interest on the third 2 No commas(,) or dollar 11
curtailment amount, if applicable. signs ($)
-----------------------------------------------------------------------------------------------------------------------------
PIF_AMT The loan "paid in full" amount as reported by 2 No commas(,) or dollar 11
the Servicer. signs ($)
-----------------------------------------------------------------------------------------------------------------------------
PIF_DATE The paid in full date as reported by the MM/DD/YYYY 10
Servicer.
-----------------------------------------------------------------------------------------------------------------------------
ACTION_CODE The standard FNMA numeric code used to Action Code Key: 2
indicate the default/delinquent status of a 15=Bankruptcy,
particular loan. 30=Foreclosure, , 60=PIF,
63=Substitution,
65=Repurchase,70=REO
-----------------------------------------------------------------------------------------------------------------------------
INT_ADJ_AMT The amount of the interest adjustment as 2 No commas(,) or dollar 11
reported by the Servicer. signs ($)
-----------------------------------------------------------------------------------------------------------------------------
SOLDIER_SAILOR_ADJ_AMT The Soldier and Sailor Adjustment amount, if 2 No commas(,) or dollar 11
applicable. signs ($)
-----------------------------------------------------------------------------------------------------------------------------
NON_ADV_LOAN_AMT The Non Recoverable Loan Amount, if 2 No commas(,) or dollar 11
applicable. signs ($)
-----------------------------------------------------------------------------------------------------------------------------
LOAN_LOSS_AMT The amount the Servicer is passing as a loss, 2 No commas(,) or dollar 11
if applicable. signs ($)
-----------------------------------------------------------------------------------------------------------------------------
SCHED_BEG_PRIN_BAL The scheduled outstanding principal amount 2 No commas(,) or dollar 11
due at the beginning of the cycle date to be signs ($)
passed through to investors.
-----------------------------------------------------------------------------------------------------------------------------
SCHED_END_PRIN_BAL The scheduled principal balance due to 2 No commas(,) or dollar 11
investors at the end of a processing cycle. signs ($)
-----------------------------------------------------------------------------------------------------------------------------
SCHED_PRIN_AMT The scheduled principal amount as reported by 2 No commas(,) or dollar 11
the Servicer for the current cycle -- only signs ($)
applicable for Scheduled/Scheduled Loans.
-----------------------------------------------------------------------------------------------------------------------------
SCHED_NET_INT The scheduled gross interest amount less the 2 No commas(,) or dollar 11
service fee amount for the current cycle as signs ($)
reported by the Servicer -- only applicable
for Scheduled/Scheduled Loans.
-----------------------------------------------------------------------------------------------------------------------------
ACTL_PRIN_AMT The actual principal amount collected by the 2 No commas(,) or dollar 11
Servicer for the current reporting cycle -- signs ($)
only applicable for Actual/Actual Loans.
-----------------------------------------------------------------------------------------------------------------------------
ACTL_NET_INT The actual gross interest amount less the 2 No commas(,) or dollar 11
service fee amount for the current reporting signs ($)
cycle as reported by the Servicer -- only
applicable for Actual/Actual Loans.
-----------------------------------------------------------------------------------------------------------------------------
PREPAY_PENALTY_ AMT The penalty amount received when a borrower 2 No commas(,) or dollar 11
prepays on his loan as reported by the signs ($)
Servicer.
-----------------------------------------------------------------------------------------------------------------------------
PREPAY_PENALTY_ WAIVED The prepayment penalty amount for the loan 2 No commas(,) or dollar 11
waived by the servicer. signs ($)
-----------------------------------------------------------------------------------------------------------------------------
MOD_DATE The Effective Payment Date of the MM/DD/YYYY 10
Modification for the loan.
-----------------------------------------------------------------------------------------------------------------------------
MOD_TYPE The Modification Type. Varchar - value can be 30
alpha or numeric
-----------------------------------------------------------------------------------------------------------------------------
DELINQ_P&I_ADVANCE_AMT The current outstanding principal and 2 No commas(,) or dollar 11
interest advances made by Servicer. signs ($)
-----------------------------------------------------------------------------------------------------------------------------
Exhibit C: Standard File Layout - Delinquency Reporting
-----------------------------------------------------------------------------------------------------------------------------
Column/Header Name Description Decimal Format Comment
-----------------------------------------------------------------------------------------------------------------------------
SERVICER_LOAN_NBR A unique number assigned to a loan by
the Servicer. This may be different than
the LOAN_NBR
-----------------------------------------------------------------------------------------------------------------------------
LOAN_NBR A unique identifier assigned to each
loan by the originator.
-----------------------------------------------------------------------------------------------------------------------------
CLIENT_NBR Servicer Client Number
-----------------------------------------------------------------------------------------------------------------------------
SERV_INVESTOR_NBR Contains a unique number as assigned by
an external servicer to identify a group
of loans in their system.
-----------------------------------------------------------------------------------------------------------------------------
BORROWER_FIRST_NAME First Name of the Borrower.
-----------------------------------------------------------------------------------------------------------------------------
BORROWER_LAST_NAME Last name of the borrower.
-----------------------------------------------------------------------------------------------------------------------------
PROP_ADDRESS Street Name and Number of Property
-----------------------------------------------------------------------------------------------------------------------------
PROP_STATE The state where the property located.
-----------------------------------------------------------------------------------------------------------------------------
PROP_ZIP Zip code where the property is located.
-----------------------------------------------------------------------------------------------------------------------------
BORR_NEXT_PAY_DUE_DATE The date that the borrower's next MM/DD/YYYY
payment is due to the servicer at the
end of processing cycle, as reported by
Servicer.
-----------------------------------------------------------------------------------------------------------------------------
LOAN_TYPE Loan Type (i.e. FHA, VA, Conv)
-----------------------------------------------------------------------------------------------------------------------------
BANKRUPTCY_FILED_DATE The date a particular bankruptcy claim MM/DD/YYYY
was filed.
-----------------------------------------------------------------------------------------------------------------------------
BANKRUPTCY_CHAPTER_CODE The chapter under which the bankruptcy
was filed.
-----------------------------------------------------------------------------------------------------------------------------
BANKRUPTCY_CASE_NBR The case number assigned by the court to
the bankruptcy filing.
-----------------------------------------------------------------------------------------------------------------------------
POST_PETITION_DUE_DATE The payment due date once the bankruptcy MM/DD/YYYY
has been approved by the courts
-----------------------------------------------------------------------------------------------------------------------------
The Date The Loan Is Removed From MM/DD/YYYY
BANKRUPTCY_DCHRG_DISM_ Bankruptcy. Either by Dismissal,
DATE Discharged and/or a Motion For Relief
Was Granted.
-----------------------------------------------------------------------------------------------------------------------------
LOSS_MIT_APPR_DATE The Date The Loss Mitigation Was MM/DD/YYYY
Approved By The Servicer
-----------------------------------------------------------------------------------------------------------------------------
LOSS_MIT_TYPE The Type Of Loss Mitigation Approved For
A Loan Such As;
-----------------------------------------------------------------------------------------------------------------------------
LOSS_MIT_EST_COMP_DATE The Date The Loss Mitigation /Plan Is MM/DD/YYYY
Scheduled To End/Close
-----------------------------------------------------------------------------------------------------------------------------
LOSS_MIT_ACT_COMP_DATE The Date The Loss Mitigation Is Actually MM/DD/YYYY
Completed
-----------------------------------------------------------------------------------------------------------------------------
FRCLSR_APPROVED_DATE The date DA Admin sends a letter to the MM/DD/YYYY
servicer with instructions to begin
foreclosure proceedings.
-----------------------------------------------------------------------------------------------------------------------------
ATTORNEY_REFERRAL_DATE Date File Was Referred To Attorney to MM/DD/YYYY
Pursue Foreclosure
-----------------------------------------------------------------------------------------------------------------------------
FIRST_LEGAL_DATE Notice of 1st legal filed by an Attorney MM/DD/YYYY
in a Foreclosure Action
-----------------------------------------------------------------------------------------------------------------------------
FRCLSR_SALE_EXPECTED_DATE The date by which a foreclosure sale is MM/DD/YYYY
expected to occur.
-----------------------------------------------------------------------------------------------------------------------------
FRCLSR_SALE_DATE The actual date of the foreclosure sale. MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------------------
FRCLSR_SALE_AMT The amount a property sold for at the 2 No commas(,) or
foreclosure sale. dollar signs ($)
-----------------------------------------------------------------------------------------------------------------------------
EVICTION_START_DATE The date the servicer initiates eviction MM/DD/YYYY
of the borrower.
-----------------------------------------------------------------------------------------------------------------------------
EVICTION_COMPLETED_DATE The date the court revokes legal
possession of the property from the MM/DD/YYYY
borrower.
-----------------------------------------------------------------------------------------------------------------------------
LIST_PRICE The price at which an REO property is 2 No commas(,) or
dollar signs ($)
-----------------------------------------------------------------------------------------------------------------------------
LIST_DATE The date an REO property is listed at a MM/DD/YYYY
particular price.
-----------------------------------------------------------------------------------------------------------------------------
OFFER_AMT The dollar value of an offer for an REO 2 No commas(,) or
property. dollar signs ($)
-----------------------------------------------------------------------------------------------------------------------------
OFFER_DATE_TIME The date an offer is received by DA MM/DD/YYYY
Admin or by the Servicer.
-----------------------------------------------------------------------------------------------------------------------------
REO_CLOSING_DATE The date the REO sale of the property is MM/DD/YYYY
scheduled to close.
-----------------------------------------------------------------------------------------------------------------------------
REO_ACTUAL_CLOSING_DATE Actual Date Of REO Sale MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------------------
OCCUPANT_CODE Classification of how the property is
occupied.
-----------------------------------------------------------------------------------------------------------------------------
PROP_CONDITION_CODE A code that indicates the condition of
the property.
-----------------------------------------------------------------------------------------------------------------------------
PROP_INSPECTION_DATE The date a property inspection is MM/DD/YYYY
performed.
-----------------------------------------------------------------------------------------------------------------------------
APPRAISAL_DATE The date the appraisal was done. MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------------------
CURR_PROP_VAL The current "as is" value of the 2
property based on brokers price opinion
or appraisal.
-----------------------------------------------------------------------------------------------------------------------------
REPAIRED_PROP_VAL The amount the property would be worth 2
if repairs are completed pursuant to a
broker's price opinion or appraisal.
-----------------------------------------------------------------------------------------------------------------------------
If applicable:
-----------------------------------------------------------------------------------------------------------------------------
DELINQ_STATUS_CODE FNMA Code Describing Status of Loan
-----------------------------------------------------------------------------------------------------------------------------
DELINQ_REASON_CODE The circumstances which caused a
borrower to stop paying on a loan. Code
indicates the reason why the loan is in
default for this cycle.
-----------------------------------------------------------------------------------------------------------------------------
MI_CLAIM_FILED_DATE Date Mortgage Insurance Claim Was Filed MM/DD/YYYY
With Mortgage Insurance Company.
-----------------------------------------------------------------------------------------------------------------------------
MI_CLAIM_AMT Amount of Mortgage Insurance Claim Filed No commas(,) or
dollar signs ($)
-----------------------------------------------------------------------------------------------------------------------------
MI_CLAIM_PAID_DATE Date Mortgage Insurance Company MM/DD/YYYY
Disbursed Claim Payment
-----------------------------------------------------------------------------------------------------------------------------
MI_CLAIM_AMT_PAID Amount Mortgage Insurance Company Paid 2 No commas(,) or
On Claim dollar signs ($)
-----------------------------------------------------------------------------------------------------------------------------
POOL_CLAIM_FILED_DATE Date Claim Was Filed With Pool Insurance MM/DD/YYYY
Company
-----------------------------------------------------------------------------------------------------------------------------
POOL_CLAIM_AMT Amount of Claim Filed With Pool 2 No commas(,) or
Insurance Company dollar signs ($)
-----------------------------------------------------------------------------------------------------------------------------
POOL_CLAIM_PAID_DATE Date Claim Was Settled and The Check Was MM/DD/YYYY
Issued By The Pool Insurer
-----------------------------------------------------------------------------------------------------------------------------
POOL_CLAIM_AMT_PAID Amount Paid On Claim By Pool Insurance 2 No commas(,) or
Company dollar signs ($)
-----------------------------------------------------------------------------------------------------------------------------
FHA_PART_A_CLAIM_ Date FHA Part A Claim Was Filed With HUD MM/DD/YYYY
FILED_DATE
-----------------------------------------------------------------------------------------------------------------------------
FHA_PART_A_CLAIM_AMT Amount of FHA Part A Claim Filed 2 No commas(,) or
dollar signs ($)
-----------------------------------------------------------------------------------------------------------------------------
FHA_PART_A_CLAIM_PAID Date HUD Disbursed Part A Claim Payment
_DATE MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------------------
FHA_PART_A_CLAIM_PAID_AMT Amount HUD Paid on Part A Claim 2 No commas(,) or
dollar signs ($)
-----------------------------------------------------------------------------------------------------------------------------
FHA_PART_B_CLAIM_ Date FHA Part B Claim Was Filed With HUD MM/DD/YYYY
FILED_DATE
-----------------------------------------------------------------------------------------------------------------------------
FHA_PART_B_CLAIM_AMT Amount of FHA Part B Claim Filed 2 No commas(,) or
dollar signs ($)
-----------------------------------------------------------------------------------------------------------------------------
FHA_PART_B_CLAIM_ Date HUD Disbursed Part B Claim MM/DD/YYYY
PAID_DATE Payment
-----------------------------------------------------------------------------------------------------------------------------
FHA_PART_B_CLAIM_PAID_AMT Amount HUD Paid on Part B Claim 2 No commas(,) or
dollar signs ($)
-----------------------------------------------------------------------------------------------------------------------------
VA_CLAIM_FILED_DATE Date VA Claim Was Filed With the MM/DD/YYYY
Veterans Admin
-----------------------------------------------------------------------------------------------------------------------------
VA_CLAIM_PAID_DATE Date Veterans Admin. Disbursed VA Claim MM/DD/YYYY
Payment
-----------------------------------------------------------------------------------------------------------------------------
VA_CLAIM_PAID_AMT Amount Veterans Admin. Paid on VA Claim 2 No commas(,) or
dollar signs ($)
-----------------------------------------------------------------------------------------------------------------------------
Exhibit C2: Standard File Codes - Delinquency Reporting
The Loss Mit Type field should show the approved Loss Mitigation Code as
follows:
o ASUM- Approved Assumption
o BAP- Borrower Assistance Program
o CO- Charge Off
o DIL- Deed-in-Lieu
o FFA- Formal Forbearance Agreement
o MOD- Loan Modification
o PRE- Pre-Sale
o SS- Short Sale
o MISC- Anything else approved by the PMI or Pool Insurer
NOTE: ▇▇▇▇▇ Fargo Bank will accept alternative Loss Mitigation Types to those
above, provided that they are consistent with industry standards. If Loss
Mitigation Types other than those above are used, the Servicer must supply ▇▇▇▇▇
Fargo Bank with a description of each of the Loss Mitigation Types prior to
sending the file.
The Occupant Code field should show the current status of the property code as
follows:
o Mortgagor
o Tenant
o Unknown
o Vacant
The Property Condition field should show the last reported condition of the
property as follows:
o Damaged
o Excellent
o Fair
o Gone
o Good
o Poor
o Special Hazard
o Unknown
The FNMA Delinquent Reason Code field should show the Reason for Delinquency as
follows:
Delinquency Delinquency Description
Code
001 FNMA-Death of principal mortgagor
002 FNMA-Illness of principal mortgagor
003 FNMA-Illness of mortgagor's family member
004 FNMA-Death of mortgagor's family member
005 FNMA-Marital difficulties
006 FNMA-Curtailment of income
007 FNMA-Excessive Obligation
008 FNMA-Abandonment of property
009 FNMA-Distant employee transfer
011 FNMA-Property problem
012 FNMA-Inability to sell property
013 FNMA-Inability to rent property
014 FNMA-Military Service
015 FNMA-Other
016 FNMA-Unemployment
017 FNMA-Business failure
019 FNMA-Casualty loss
022 FNMA-Energy environment costs
023 FNMA-Servicing problems
026 FNMA-Payment adjustment
027 FNMA-Payment dispute
029 FNMA-Transfer of ownership pending
030 FNMA-Fraud
031 FNMA-Unable to contact borrower
INC FNMA-Incarceration
The FNMA Delinquent Status Code field should show the Status of Default as
follows:
Status Code Status Description
09 Forbearance
17 Pre-foreclosure Sale Closing Plan Accepted
24 Government Seizure
26 Refinance
27 Assumption
28 Modification
29 Charge-Off
30 Third Party Sale
31 Probate
32 Military Indulgence
43 Foreclosure Started
44 Deed-in-Lieu Started
49 Assignment Completed
61 Second Lien Considerations
62 Veteran's Affairs-No Bid
63 Veteran's Affairs-Refund
64 Veteran's Affairs-Buydown
65 Chapter 7 Bankruptcy
66 Chapter 11 Bankruptcy
67 Chapter 13 Bankruptcy
Exhibit D: Calculation of Realized Loss/Gain Form 332- Instruction Sheet
NOTE: Do not net or combine items. Show all expenses individually and all
credits as separate line items. Claim packages are due on the remittance
report date. Late submissions may result in claims not being passed until
the following month. The Servicer is responsible to remit all funds
pending loss approval and /or resolution of any disputed items.
The numbers on the 332 form correspond with the numbers listed
below.
Liquidation and Acquisition Expenses:
1. The Actual Unpaid Principal Balance of the Mortgage Loan. For
documentation, an Amortization Schedule from date of default through
liquidation breaking out the net interest and servicing fees
advanced is required.
2. The Total Interest Due less the aggregate amount of servicing fee
that would have been earned if all delinquent payments had been made
as agreed. For documentation, an Amortization Schedule from date of
default through liquidation breaking out the net interest and
servicing fees advanced is required.
3. Accrued Servicing Fees based upon the Scheduled Principal Balance of
the Mortgage Loan as calculated on a monthly basis. For
documentation, an Amortization Schedule from date of default through
liquidation breaking out the net interest and servicing fees
advanced is required.
4-12. Complete as applicable. Required documentation:
* For taxes and insurance advances - see page 2 of 332 form -
breakdown required showing period
of coverage, base tax, interest, penalty. Advances prior to
default require evidence of servicer efforts to recover advances.
* For escrow advances - complete payment history
(to calculate advances from last positive escrow balance forward)
* Other expenses - copies of corporate advance history showing
all payments
* REO repairs > $1500 require explanation
* REO repairs >$3000 require evidence of at least 2 bids.
* Short Sale or Charge Off require P&L supporting the decision and
WFB's approved Officer Certificate
* Unusual or extraordinary items may require further documentation.
13. The total of lines 1 through 12.
Credits:
14-21. Complete as applicable. Required documentation:
* Copy of the HUD 1 from the REO sale. If a 3rd Party Sale,
bid instructions and Escrow Agent / Attorney
Letter of Proceeds Breakdown.
* Copy of EOB for any MI or gov't guarantee
* All other credits need to be clearly defined on the 332 form
22. The total of lines 14 through 21.
Please Note: For HUD/VA loans, use line (18a) for Part A/Initial
proceeds and line (18b) for Part B/Supplemental proceeds.
Total Realized Loss (or Amount of Any Gain)
23. The total derived from subtracting line 22 from 13. If the
amount represents a realized gain, show the amount in
parenthesis ( ).
Exhibit D1: Calculation of Realized Loss/Gain Form 332
Prepared by: __________________ Date: _______________
Phone: ______________________ Email Address:_____________________
------------------------ -------------------------- --------------------------
Servicer Loan No. Servicer Name Servicer Address
------------------------ -------------------------- --------------------------
▇▇▇▇▇ FARGO BANK, N.A. Loan No._____________________________
Borrower's Name:
_________________________________________________________
Property Address:
_________________________________________________________
Liquidation Type: REO Sale 3rd Party Sale Short Sale Charge Off
Was this loan granted a Bankruptcy deficiency or cramdown Yes No
If "Yes", provide deficiency or cramdown amount_________________________
Liquidation and Acquisition Expenses:
(1) Actual Unpaid Principal Balance of Mortgage Loan $______________
(1)
(2) Interest accrued at Net Rate ______________
(2)
(3) Accrued Servicing Fees ______________
(3)
(4) Attorney's Fees ______________
(4)
(5) Taxes (see page 2) ______________
(5)
(6) Property Maintenance ______________
(6)
(7) MI/Hazard Insurance Premiums (see page 2) ______________
(7)
(8) Utility Expenses ______________
(8)
(9) Appraisal/BPO ______________
(9)
(10) Property Inspections ______________
(10)
(11) FC Costs/Other Legal Expenses ______________
(11)
(12) Other (itemize) ______________
(12)
Cash for Keys________________________ ______________
(12)
HOA/Condo Fees_______________________ ______________
(12)
_____________________________________ ______________
(12)
Total Expenses $______________
(13)
Credits:
(14) Escrow Balance $______________
(14)
(15) HIP Refund ______________
(15)
(16) Rental Receipts ______________
(16)
(17) Hazard Loss Proceeds ______________
(17)
(18) Primary Mortgage Insurance / Gov't Insurance ______________
(18a) HUD Part A
______________
(18b) HUD Part B ______________
(19) Pool Insurance Proceeds ______________
(19)
(20) Proceeds from Sale of Acquired Property ______________
(20)
(21) Other (itemize) ______________
(21)
_____________________________________ ______________
(21)
Total Credits $______________
(22)
Total Realized Loss (or Amount of Gain) $______________
(23)
Escrow Disbursement Detail
--------------------------------------------------------------------------------
Type Date Period of Total Base Penalties Interest
(Tax Paid Coverage Paid Amount
/Ins.)
--------------------------------------------------------------------------------
EXHIBIT E
Section 9.01 Representations and Warranties Regarding the
Seller.
The Seller represents, warrants and covenants to the Purchaser that
as of the date hereof and as of each Closing Date:
(1) The Seller 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 The Seller 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) The Seller 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 the Seller 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 the Seller, enforceable against the Seller 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 the Seller, the sale and servicing of the Mortgage Loans by
the Seller 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 the Seller and will not (A) result
in a material breach of any term or provision of the charter or by-laws of
the Seller 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 the Seller is a party or
by which it may be bound, or (C) constitute a material violation of any
statute, order or regulation applicable to the Seller of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over the Seller (including the OTS, the Federal Deposit
Insurance Corporation or any other governmental entity having regulatory
authority over the Seller); and the Seller is not in breach or violation
of any material indenture or other material agreement or instrument, or in
violation of any statute, order or regulation of any court, regulatory
body, administrative agency or governmental body having jurisdiction over
it (including the OTS, the Federal Deposit Insurance Corporation or any
other governmental entity having regulatory authority over the Seller)
which breach or violation may materially impair the Seller's ability to
perform or meet any of its obligations under the Pooling and Servicing
Agreement.
(4) The Seller 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 the Seller's
knowledge, threatened against the Seller that would prohibit the execution
or delivery of, or performance under, the Pooling and Servicing Agreement
by the Seller.
(6) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution, delivery and
performance by the Seller of, or compliance by the Seller with, the
Pooling and Servicing Agreement or the consummation of the transactions
contemplated thereby, or if any such consent, approval, authorization or
order is required, the Seller has obtained the same.
(7) The Seller is a member of MERS in good standing, and will
comply in all material respects with the rules and procedures of MERS in
connection with the servicing of the MERS Mortgage Loans for as long as
such Mortgage Loans are registered with MERS.
Section 9.02 Representations and Warranties Regarding
Individual Mortgage Loans.
The Seller hereby represents and warrants to the Purchaser that, as
to each Mortgage Loan, as of the related Closing Date for such Mortgage Loan:
(1) The information set forth on Schedule I to the Pooling and
Servicing Agreement, dated as of January 1, 2008 (the "Pooling and
Servicing Agreement"), among BCAP LLC, HSBC Bank USA, National
Association, Deutsche Bank National Trust Company and ▇▇▇▇▇ Fargo Bank,
N.A., with respect to each Mortgage Loan is true and correct in all
material respects as of the Closing Date.
(2) All regularly scheduled monthly payments due with respect
to each Mortgage Loan up to and including the Due Date before the Cut-off
Date have been made; and as of the Cut-off Date, no Mortgage Loan had a
regularly scheduled monthly payment that was 60 or more days delinquent
during the twelve months before the Cut-off Date.
(3) With respect to any Mortgage Loan that is not a Co-op
Loan, each Mortgage is a valid and enforceable first lien on the Mortgaged
Property subject only to (a) the lien of nondelinquent current real
property taxes and assessments and liens or interests arising under or as
a result of any federal, state or local law, regulation or ordinance
relating to hazardous wastes or hazardous substances and, if the related
Mortgaged Property is a unit in a condominium project or planned unit
development, any lien for common charges permitted by statute or homeowner
association fees, (b) covenants, conditions and restrictions, rights of
way, easements and other matters of public record as of the date of
recording of such Mortgage, such exceptions appearing of record being
generally acceptable to mortgage lending institutions in the area wherein
the related Mortgaged Property is located or specifically reflected in the
appraisal made in connection with the origination of the related Mortgage
Loan, and (c) other matters to which like properties are commonly subject
which do not materially interfere with the benefits of the security
intended to be provided by such Mortgage.
(4) Immediately before the assignment of the Mortgage Loans to
the Depositor, the Seller had good title to, and was the sole owner of,
each Mortgage Loan free and clear of any pledge, lien, encumbrance or
security interest and had full right and authority, subject to no interest
or participation of, or agreement with, any other party, to sell and
assign the same pursuant to the Pooling and Servicing Agreement.
(5) As of the Closing Date, there was no delinquent tax or
assessment lien against the related Mortgaged Property.
(6) There is no valid offset, defense or counterclaim to any
Mortgage Note or Mortgage, including the obligation of the Mortgagor to
pay the unpaid principal of or interest on such Mortgage Note.
(7) There are no mechanics' liens or claims for work, labor or
material affecting any Mortgaged Property which are or may be a lien prior
to or equal with, the lien of such Mortgage, except those which are
insured against by the title insurance policy referred to in item (11)
below.
(8) No Mortgaged Property has been materially damaged by
water, fire, earthquake, windstorm, flood, tornado or similar casualty
(excluding casualty from the presence of hazardous wastes or hazardous
substances, as to which the Seller makes no representation) so as to
affect adversely the value of the related Mortgaged Property as security
for the Mortgage Loan.
(9) Each Mortgage Loan at origination complied in all material
respects with applicable local, state and federal laws and regulations,
including usury, equal credit opportunity, real estate settlement
procedures, truth-in-lending, and disclosure laws, or any noncompliance
does not have a material adverse effect on the value of the related
Mortgage Loan.
(10) The Seller has not modified the Mortgage in any material
respect (except that a Mortgage Loan may have been modified by a written
instrument which has been recorded or submitted for recordation, if
necessary, to protect the interests of the Purchaser and which has been
delivered to the Trustee (as defined in the Pooling and Servicing
Agreement)); 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 Stated Principal Balance as of the
Cut-off Date of each such Mortgage Loan or a commitment (binder) to issue
the same was effective on the date of the origination of each Mortgage
Loan and each such policy is valid and remains in full force and effect.
(12) Each Mortgage Loan was originated (within the meaning of
Section 3(a)(41) of the Securities Exchange Act of 1934, as amended) by an
entity that satisfied at the time of origination the requirements of
Section 3(a)(41) of the Securities Exchange Act of 1934, as amended.
(13) All of the improvements which were included for the
purpose of determining the Appraised Value of the Mortgaged Property lie
wholly within the boundaries and building restriction lines of such
property, and no improvements on adjoining properties encroach upon the
Mortgaged Property, unless such failure to be wholly within such
boundaries and restriction lines or such encroachment, as the case may be,
does not have a material effect on the value of the Mortgaged Property.
(14) As of the date of origination of each Mortgage Loan, no
improvement located on or being part of the Mortgaged Property is in
violation of any applicable zoning law or regulation unless such violation
would not have a material adverse effect on the value of the related
Mortgaged Property. All inspections, licenses and certificates required to
be made or issued with respect to all occupied portions of the Mortgaged
Property and, with respect to the use and occupancy of the same, including
certificates of occupancy and fire underwriting certificates, have been
made or obtained from the appropriate authorities, unless the lack thereof
would not have a material adverse effect on the value of the Mortgaged
Property.
(15) The Mortgage Note and the related Mortgage are genuine,
and each is the legal, valid and binding obligation of the maker thereof,
enforceable in accordance with its terms and under applicable law.
(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
Purchaser to the trustee under the deed of trust, except in connection
with a trustee's sale after default by the Mortgagor.
(19) At the Closing Date, the improvements upon each Mortgaged
Property are covered by a valid and existing hazard insurance policy with
a generally acceptable carrier that provides for fire and extended
coverage and coverage for such other hazards as are customarily required
by institutional single family mortgage lenders in the area where the
Mortgaged Property is located, and the Seller has received no notice that
any premiums due and payable thereon have not been paid; the Mortgage
obligates the Mortgagor thereunder to maintain all such insurance
including flood insurance at the Mortgagor's cost and expense. Anything to
the contrary in this item (19) notwithstanding, no breach of this item
(19) shall be deemed to give rise to any obligation of the Seller to
repurchase or substitute for such affected Mortgage Loan or Loans so long
as the Servicer maintains a blanket policy.
(20) If at the time of origination of each Mortgage Loan, the
related Mortgaged Property was in an area then identified in the Federal
Register by the Federal Emergency Management Agency as having special
flood hazards, a flood insurance policy in a form meeting the then-current
requirements of the Flood Insurance Administration is in effect with
respect to the Mortgaged Property with a generally acceptable carrier.
(21) There is no proceeding pending or threatened for the
total or partial condemnation of any Mortgaged Property, nor is such a
proceeding currently occurring.
(22) There is no material event which, with the passage of
time or with notice and the expiration of any grace or cure period, would
constitute a material non-monetary default, breach, violation or event of
acceleration under the Mortgage or the related Mortgage Note; and the
Seller has not waived any material non-monetary default, breach, violation
or event of acceleration.
(23) Each Mortgage File contains an appraisal of the related
Mortgaged Property prepared in accordance with the Uniform Standards of
Professional Appraisal Practice (USPAP).
(24) Any leasehold estate securing a Mortgage Loan has a
stated term of not less than five years in excess of the term of the
related Mortgage Loan.
(25) Each Mortgage Loan was selected from among the
outstanding adjustable rate one- to four-family mortgage loans in the
Seller's portfolio at the Closing Date as to which the representations and
warranties made with respect to the Mortgage Loans set forth in this
Exhibit can be made. No such selection was made in a manner intended to
adversely affect the interests of the Purchaser.
(26) None of the Mortgage Loans is a Co-op Loan.
(27) None of the Mortgage Loans is a "high cost" loan,
"covered" loan or any other similarly designated loan as defined under any
state, local or federal law, as defined by applicable predatory and
abusive lending laws.
(28) No proceeds from any Mortgage Loan were used to finance
single-premium credit insurance policies.
(29) None of the Mortgage Notes related to the Mortgage Loans
impose a Prepayment Penalty on the related Mortgage Loan for a term in
excess of three years from the origination of the Mortgage Loan.
(30) Each Mortgage Loan was in compliance with the
anti-predatory lending eligibility for purchase requirements of ▇▇▇▇▇▇
Mae's Selling Guide.
(31) Each Mortgage Loan has been underwritten and serviced
substantially in accordance with the Seller's guidelines, subject to such
variances as are reflected on the Mortgage Loan Schedule or that the
Seller has approved.
(32) No Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable (as such terms are defined in the then-current version of
Standard & Poor's LEVELS(R) Glossary, which is now Version 5.7 Revised,
Appendix E) and no Mortgage Loan originated on or after Oct. 1, 2002
through March 6, 2003 is governed by the Georgia Fair Lending Act.
(33) The Pooling and Servicing Agreement creates a valid and
continuing "security interest" (as defined in Section 1-201(37) of the
UCC) in each Mortgage Note in favor of the Trustee, which security
interest is prior to all other liens and is enforceable as such against
creditors of and purchasers from the Depositor. Each Mortgage Note
constitutes "promissory notes" (as defined in Section 9-102(a)(65) of the
UCC). Immediately before the assignment of each Mortgage Note to the
Trustee, the Depositor had good and marketable title to such Mortgage Note
free and clear of any lien, claim, encumbrance of any Person. All original
executed copies of each Mortgage Note have been or shall be delivered to
the Trustee within five Business Days following the Closing Date. Other
than the security interest granted to the Trustee, the Depositor has not
pledged, assigned, sold, granted a security interest in, or otherwise
conveyed any Mortgage Note. The Depositor has not authorized the filing of
and is not aware of any financing statements against the Depositor that
include a description of any of the Mortgage Notes. The Depositor is not
aware of any judgment or tax liens filed against the Depositor. None of
the Mortgage Notes has any marks or notations indicating that they have
been pledged, assigned or otherwise conveyed to any Person other than the
Trustee.
(34) To the best of the Seller's knowledge, there was no fraud
involved in the origination of any Mortgage Loan by the mortgagee or by
the Mortgagor, any appraiser or any other party involved in the
origination of the Mortgage Loan.
(35) Each Mortgage Loan constitutes a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code.
(36) Each Mortgage Loan at the time it was made complied in
all material respects with applicable local, state, and federal laws,
including, but not limited to, all applicable predatory and abusive
lending laws.
(37) No Mortgage Loan is subject to the requirements of the
Home Ownership and Equity Protection Act of 1994.
(38) No Mortgage Loan is a "High-Cost Home Loan" as defined in
any of the following statutes: the Georgia Fair Lending Act, as amended
(the "Georgia Act"), the New York Banking Law 6-1, the Arkansas Home Loan
Protection Act effective July 16, 2003 (Act 1340 of 2003), the Kentucky
high-cost home loan statute effective June 24, 2003 (Ky. Rev. Stat.
Section 360.100), the New Jersey Home Ownership Act effective November 27,
2003 (N.J.S.A. 46:10B-22 et seq.), or the New Mexico Home Loan Protection
Act effective January 1, 2004 (N.M. Stat. ▇▇▇ ▇▇.▇▇. 58-21A-1 et seq.). No
Mortgage Loan subject to the Georgia Act and secured by owner occupied
real property or an owner occupied manufactured home located in the state
of Georgia was originated (or modified) on or after October 1, 2002
through and including March 6, 2003. No Mortgage Loan is a "High-Risk Home
Loan" as defined in the Illinois High-Risk Home Loan Act effective January
1, 2004 (815 Ill. Comp. Stat. 137/1 et seq.). None of the Mortgage Loans
that are secured by property located in the State of Illinois are in
violation of the provisions of the Illinois Interest Act (815 Ill. Comp.
Stat. 205/1 et seq.).
(39) None of the Mortgage Loans is a "high cost" loan,
"covered" loan (excluding home loans defined as "covered home loans" in
the New Jersey Home Ownership Security Act of 2002 that were originated
between November 26, 2003 and July 7, 2004), "high risk home" or
"predatory" loan or any other similarly designated loan as defined under
any state, local or federal law, as defined by applicable predatory and
abusive lending laws.
EXHIBIT F
FORM OF INDEMNIFICATION
AND
CONTRIBUTION AGREEMENT
THIS INDEMNIFICATION AND CONTRIBUTION AGREEMENT dated
_________, 200_ ("Agreement") among BCAP LLC, a Delaware limited
liability company (the "Depositor"), [______________], a
[______________] (the "Underwriter"), and IndyMac Bank, F.S.B., a
[______________] (the "Indemnifying Party").
W I T N E S S E T H:
WHEREAS, the Indemnifying Party originated or acquired the Mortgage
Loans and subsequently sold the Mortgage Loans to Barclays Bank PLC (the
"Purchaser"), an affiliate of the Depositor, in anticipation of the
securitization transaction;
WHEREAS, as an inducement to the Depositor to enter into the Pooling
and Servicing Agreement and the Underwriter to enter into the Underwriting
Agreement (as defined herein), the Indemnifying Party wishes to provide for
indemnification and contribution on the terms and conditions hereinafter set
forth;
NOW, THEREFORE, in consideration of the foregoing and of other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Certain Defined Terms. The following terms shall have
the meanings set forth below, unless the context clearly indicates
otherwise:
1933 Act: The Securities Act of 1933, as amended.
1934 Act: The Securities Exchange Act of 1934, as amended.
Agreement: This Indemnification and Contribution Agreement,
as the same may be amended in accordance with the terms hereof.
Barclays' Updated Information: All information relating to the
Sponsor and Depositor provided by the Depositor to the Indemnifying Party in
connection with any update pursuant to a Supplement to the Prospectus
Supplement.
Indemnified Parties: As defined in Section 3.1.
Indemnifying Party Information: All information in the Supplement to
the Prospectus Supplement and the Prospectus Supplement and any amendment or
supplement thereto, other than Barclays' Updated Information.
Person: Any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Pooling and Servicing Agreement: The Pooling and Servicing
Agreement, dated as of ___________, 200_, among the Depositor and
[______________].
Privately Offered Certificates: BCAP LLC Trust [_______],
Mortgage Pass-Through Certificates, Series [_______], Class [__] issued
pursuant to the Pooling and Servicing Agreement.
Prospectus Supplement: The prospectus supplement, dated
___________, 200_, relating to the offering of the Publicly Offered
Certificates.
Publicly Offered Certificates: BCAP LLC Trust [_______],
Mortgage Pass-Through Certificates, Series [_______], Class [__],
Class [__], Class [__], Class [__], Class [__], Class [__] and
Class [__] issued pursuant to the Pooling and Servicing Agreement.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended
from time to time, and subject to such clarification and interpretation
as have been provided by the Commission in the adopting release
(Asset-Backed Securities, Securities Act Release No. 33-8518, 70 Fed.
Reg. 1,506-1,631 (Jan. 7, 2005)) or by the staff of the Commission, or
as may be provided by the Commission or its staff from time to time.
Supplement to the Prospectus Supplement: The supplement to the
prospectus supplement, dated ___________, 200_, relating to the offering of the
Publicly Offered Certificates.
Underwriting Agreement: The Underwriting Agreement, dated
___________, 200_, among the Depositor and the Underwriter, relating to
the sale of the Publicly Offered Certificates.
1.2 Other Terms. Capitalized terms used but not defined
herein shall have the meanings assigned to such terms in the Pooling
and Servicing Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
(a) Each party hereto represents and warrants that it has all
requisite power and authority to execute, deliver and perform its obligations
under this Agreement;
(b) Each party hereto represents and warrants that this Agreement
has been duly authorized, executed and delivered by such party;
(c) Each party hereto represents and warrants that assuming the due
authorization, execution and delivery by each other party hereto, this Agreement
constitutes the legal, valid and binding obligation of such party and
(d) The Indemnifying Party hereto represents and warrants that the
Indemnifying Party Information satisfies the requirements of the applicable
provisions of Regulation AB.
ARTICLE III
INDEMNIFICATION
3.1 Indemnification by the Indemnifying Party of the Depositor and
the Underwriter. (a) The Indemnifying Party shall indemnify and hold harmless
the Depositor and the Underwriter and their respective affiliates, and their
respective present and former directors, officers, employees, agents and each
Person, if any, that controls the Depositor, the Underwriter or such affiliate,
within the meaning of either the 1933 Act or the 1934 Act (collectively, the
"Indemnified Parties"), against any and all losses, claims, damages, penalties,
fines, forfeitures or liabilities, joint or several, to which each such
Indemnified Party may become subject, under the 1933 Act, the 1934 Act or
otherwise, to the extent that such losses, claims, damages, penalties, fines,
forfeitures or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material fact
contained in the Supplement to the Prospectus Supplement, the Prospectus
Supplement or any amendment or supplement thereto, or arise out of or are based
upon (i) any breach of the representation and warranty set forth in Article
II(d) above or (ii) the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances in which they were made, not misleading, to the
extent that such untrue statement or alleged untrue statement or omission or
alleged omission relates to information set forth in the Indemnifying Party
Information, and the Indemnifying Party shall in each case reimburse each
Indemnified Party for any legal or other costs, fees, or expenses reasonably
incurred and as incurred by such Indemnified Party in connection with
investigating or defending any such loss, claim, damage, penalty, fine,
forfeiture, liability or action. The Indemnifying Party's liability under this
Section 3.1 shall be in addition to any other liability that the Indemnifying
Party may otherwise have.
(b) If the indemnification provided for in this Section 3.1 shall
for any reason be unavailable to an Indemnified Party under this Section 3.1
(other than due to indemnification not being applicable under Section 3.1(a)),
then the party which would otherwise be obligated to indemnify with respect
thereto, on the one hand, and the parties which would otherwise be entitled to
be indemnified, on the other hand, shall contribute to the aggregate losses,
liabilities, claims, damages, penalty, fine, forfeiture, costs, fees and
expenses of the nature contemplated herein and incurred by the parties hereto in
such proportions that are appropriate to reflect the relative fault of the
Depositor or the Underwriter, on the one hand, and the Indemnifying Party, on
the other hand, in connection with the applicable misstatements or omissions as
well as any other relevant equitable considerations. Notwithstanding the
foregoing, no Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any
Person that was not guilty of such fraudulent misrepresentation. For purposes of
this Section 3.1, each director of a party to this Agreement and each Person, if
any, that controls a party to this Agreement within the meaning of Section 15 of
the 1933 Act shall have the same rights to contribution as such party.
3.2 Notification; Procedural Matters. Promptly after receipt by an
Indemnified Party under Section 3.1 of notice of any claim or the commencement
of any action, such Indemnified Party shall, if a claim in respect thereof is to
be made against the Indemnifying Party (or if a claim for contribution is to be
made against another party) under Section 3.1, notify the Indemnifying Party (or
other contributing party) in writing of the claim or the commencement of such
action; provided, however, that the failure to notify the Indemnifying Party (or
other contributing party) shall not relieve it from any liability which it may
have under Section 3.1 except to the extent it has been materially prejudiced by
such failure; and provided, further, however, that the failure to notify the
Indemnifying Party shall not relieve it from any liability which it may have to
any Indemnified Party (or to the party requesting contribution) otherwise than
under Section 3.1. In case any such action is brought against any Indemnified
Party and it notifies the Indemnifying Party of the commencement thereof, the
Indemnifying Party shall be entitled to participate therein and, to the extent
that, by written notice delivered to the Indemnified Party promptly after
receiving the aforesaid notice from such Indemnified Party, the Indemnifying
Party elects to assume the defense thereof, it may participate with counsel
reasonably satisfactory to such Indemnified Party; provided, however, that if
the defendants in any such action include both the Indemnified Party and the
Indemnifying Party and the Indemnified Party or parties shall reasonably have
concluded that there may be legal defenses available to it or them and/or other
Indemnified Parties that are different from or additional to those available to
the Indemnifying Party, or if the use of counsel chosen by the Indemnifying
Party to represent the Indemnified Parties would present such counsel with a
conflict of interest, the Indemnified Party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such Indemnified Party or
parties. Upon receipt of notice from the Indemnifying Party to such Indemnified
Party of its election so to assume the defense of such action and approval by
the Indemnified Party of such counsel, the Indemnifying Party shall not be
liable to such Indemnified Party under this paragraph for any legal or other
expenses subsequently incurred by such Indemnified Party in connection with the
defense thereof, unless (i) the Indemnified Party shall have employed separate
counsel (plus any local counsel) in connection with the assertion of legal
defenses in accordance with the proviso to the immediately preceding sentence,
(ii) the Indemnifying Party shall not have employed counsel reasonably
satisfactory to the Indemnified Party to represent the Indemnified Party within
a reasonable time after notice of commencement of the action or (iii) the
Indemnifying Party shall have authorized the employment of counsel for the
Indemnified Party at the expense of the Indemnifying Party. No party shall be
liable for contribution with respect to any action or claim settled without its
consent, which consent shall not be unreasonably withheld. In no event shall the
Indemnifying Party be liable for the fees and expenses of more than one counsel
(in addition to any local counsel) separate from its own counsel for all
Indemnified Parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances.
ARTICLE IV
GENERAL
4.1 Survival. This Agreement and the obligations of the parties
hereunder shall survive the purchase and sale of the Publicly Offered
Certificates and Privately Offered Certificates.
4.2 Successors. This Agreement shall inure to the benefit of and be
binding upon the parties hereto, each Indemnified Party and their respective
successors and assigns, and no other Person shall have any right or obligation
hereunder.
4.3 Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without giving
effect to principles of conflict of laws.
4.4 Miscellaneous. Neither this Agreement nor any term hereof may be
changed, waived, discharged or terminated except by a writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. This Agreement may be signed in any number of counterparts, each of
which shall be deemed an original, which taken together shall constitute one and
the same instrument.
4.5 Notices. All communications hereunder shall be in writing and
shall be deemed to have been duly given when delivered to:
In the case of the Depositor:
BCAP LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
c/o Barclays Bank PLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: [_____________]
Telephone: (212) [________]
In the case of the Underwriter:
[______________]
[______________]
[______________]
Attention:
Telephone:
In the case of the Indemnifying Party:
IndyMac Bank, F.S.B.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
4.6 Submission To Jurisdiction; Waivers. Each party hereto
hereby irrevocably and unconditionally:
(A) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT OF ANY
JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK, THE FEDERAL COURTS OF THE UNITED STATES OF
AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY
THEREOF;
(B) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN
SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY
SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT
COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(C) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING
MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR
ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET
FORTH HEREIN OR AT SUCH OTHER ADDRESS OF WHICH THE PARTIES SHALL HAVE BEEN
NOTIFIED; AND
(D) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT
TO ▇▇▇ IN ANY OTHER JURISDICTION.
4.7 Waiver of Trial by Jury.
EACH PARTY HERETO KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties have executed this Agreement by
their duly authorized officers as of the date first above written.
BCAP LLC
By:
------------------------------------
Name:
Title:
[UNDERWRITER]
By:
------------------------------------
Name:
Title:
INDYMAC BANK, F.S.B.
By:
------------------------------------
Name:
Title:
EXHIBIT M-1
INDYMAC PURCHASE AGREEMENT
================================================================================
BARCLAYS BANK PLC,
Purchaser
INDYMAC BANK, F.S.B.,
Seller
AMENDED AND RESTATED MORTGAGE LOAN
PURCHASE AGREEMENT
Dated as of January 1, 2008
Conventional, Fixed and Adjustable Rate
Residential Mortgage Loans
================================================================================
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.................................................
ARTICLE II
AGREEMENT TO PURCHASE
Section 2.01 Agreement to Purchase.........................................
ARTICLE III
MORTGAGE SCHEDULES
Section 3.01 Preliminary Mortgage Schedule.................................
Section 3.02 Delivery of Mortgage Loan Schedule............................
ARTICLE IV
PURCHASE PRICE
Section 4.01 Purchase Price................................................
ARTICLE V
EXAMINATION OF MORTGAGE FILES
Section 5.01 Examination of Mortgage Files.................................
ARTICLE VI
CONVEYANCE FROM SELLER TO PURCHASER
Section 6.01 Conveyance of Mortgage Loans..................................
Section 6.02 Books and Records.............................................
Section 6.03 Delivery of Mortgage Loan Documents...........................
Section 6.04 Quality Control Procedures....................................
Section 6.05 MERS Designated Loans.........................................
ARTICLE VII
SERVICING OF THE MORTGAGE LOANS
Section 7.01 Servicing.....................................................
ARTICLE VIII
[RESERVED]
ARTICLE IX
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
SELLER; REMEDIES FOR BREACH
Section 9.01 Representations and Warranties Regarding the Seller...........
Section 9.02 Representations and Warranties Regarding Individual
Mortgage Loans...............................................
Section 9.03 Remedies for Breach of Representations and Warranties.........
Section 9.04 Repurchase of Mortgage Loans with Early Payment Defaults......
Section 9.05 Premium Recapture.............................................
ARTICLE X
CLOSING
Section 10.01 Conditions to Closing........................................
ARTICLE XI
CLOSING DOCUMENTS
Section 11.01 Required Closing Documents...................................
ARTICLE XII
COSTS
Section 12.01 Costs........................................................
ARTICLE XIII
COOPERATION OF SELLER WITH A RECONSTITUTION
Section 13.01 Reconstitution of Mortgage Loans.............................
ARTICLE XIV
THE SELLER
Section 14.01 Additional Indemnification by the Seller; Third Party
Claims......................................................
Section 14.02 Merger or Consolidation of the Seller........................
ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 15.01 Financial Statements.........................................
Section 15.02 Mandatory Delivery...........................................
Section 15.03 Notices......................................................
Section 15.04 Severability Clause..........................................
Section 15.05 Counterparts.................................................
Section 15.06 [Reserved]...................................................
Section 15.07 Intention of the Parties.....................................
Section 15.08 Successors and Assigns; Assignment of Purchase Agreement.....
Section 15.09 Waivers......................................................
Section 15.10 Exhibits.....................................................
Section 15.11 General Interpretive Principles..............................
Section 15.12 Reproduction of Documents....................................
Section 15.13 Further Agreements...........................................
Section 15.14 [Reserved]...................................................
Section 15.15 No Solicitation..............................................
Section 15.16 Waiver of Trial by Jury......................................
Section 15.17 Governing Law Jurisdiction; Consent to Service of Process....
Section 15.18 No Brokers...................................................
Section 15.19 Reasonable Purchase Price....................................
ARTICLE XVI
COMPLIANCE WITH REGULATION AB
Section 16.01 Intent of the Parties; Reasonableness........................
Section 16.02 Additional Representations and Warranties of the Seller......
Section 16.03 Information to Be Provided by the Seller.....................
Section 16.04 Indemnification; Remedies....................................
EXHIBITS
EXHIBIT A CONTENTS OF EACH MORTGAGE FILE
EXHIBIT B FORM OF INDEMNIFICATION AND CONTRIBUTION AGREEMENT
EXHIBIT C FORM OF SELLER'S OFFICER'S CERTIFICATE
EXHIBIT D FORM OF OPINION OF COUNSEL TO THE SELLER
EXHIBIT E FORM OF SECURITY RELEASE CERTIFICATION
EXHIBIT F FORM OF SECURITY RELEASE CERTIFICATION
EXHIBIT G UNDERWRITING GUIDELINES
EXHIBIT H FORM OF ASSIGNMENT AND CONVEYANCE AGREEMENT
EXHIBIT I FORM OF ASSIGNMENT AND RECOGNITION AGREEMENT
AMENDED AND RESTATED MORTGAGE LOAN PURCHASE AGREEMENT
-----------------------------------------------------
This AMENDED AND RESTATED MORTGAGE LOAN PURCHASE AGREEMENT (the
"Agreement"), dated as of January 1, 2008, by and between Barclays Bank PLC, a
public limited liability company, registered in England and Wales under company
number 1026167, having an office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ , ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(the "Purchaser"), and IndyMac Bank, F.S.B., a federal savings bank, having an
office at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
"Seller").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Seller desires to sell, from time to time, to the
Purchaser, and the Purchaser desires to purchase, from time to time, from the
Seller, certain conventional fixed and adjustable rate residential first-lien
and second lien residential mortgage loans (the "Mortgage Loans") on a servicing
retained basis as described herein, and which shall be delivered in pools of
whole loans (each, a "Mortgage Loan Package") on various dates as provided
herein (each, a "Closing Date");
WHEREAS, each Mortgage Loan is secured by a mortgage, deed of trust
or other security instrument creating a first lien or second lien on a
residential dwelling located in the jurisdiction indicated on the Mortgage Loan
Schedule for the related Mortgage Loan Package;
WHEREAS, the Purchaser and the Seller wish to prescribe the manner
of the conveyance, servicing and control of the Mortgage Loans; and
WHEREAS, following its purchase of the Mortgage Loans from the
Seller, the Purchaser desires to sell some or all of the Mortgage Loans to one
or more purchasers as a whole loan transfer or a public or private, rated or
unrated Securitization Transaction;
NOW, THEREFORE, in consideration of the premises and mutual
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Purchaser and the
Seller agree as follows:
ARTICLE I
DEFINITIONS
-----------
Section 1.01 Defined Terms.
For purposes of this Agreement the following capitalized terms shall
have the respective meanings set forth below.
Accepted Servicing Practices: With respect to any Mortgage Loan,
those mortgage servicing practices of prudent mortgage lending institutions
which service mortgage loans of the same type as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located.
Act: The National Housing Act, as amended from time to time.
Adjustable Rate Mortgage Loan: An adjustable rate Mortgage Loan.
Affiliate: With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Agency Transfer: A ▇▇▇▇▇▇ ▇▇▇ Transfer or a ▇▇▇▇▇▇▇ Mac Transfer.
Agreement: This Amended and Restated Mortgage Loan Purchase
Agreement and all amendments hereof and supplements hereto.
ALTA: The American Land Title Association or any successor thereto.
Ancillary Income: All late charges, assumption fees, escrow account
benefits, reinstatement fees, Prepayment Penalties, and similar types of fees
arising from or in connection with any Mortgage, to the extent not otherwise
payable to the Mortgagor under applicable law or pursuant to the terms of the
related Mortgage Note.
Appraised Value: With respect to any Mortgage Loan, the Appraised
Value of the related Mortgaged Property shall be 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 or (b) the sales price of the Mortgaged
Property at the time of the origination of such Mortgage Loan.
Assignment and Conveyance Agreement: As defined in Section 6.01.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to reflect
the sale of the Mortgage to the Purchaser.
Balloon Mortgage Loan: Any Mortgage Loan (a) that requires only
payments of interest until the stated maturity date of the Mortgage Loan or (b)
for which Monthly Payments of principal (not including the payment due on its
stated maturity date) are based on an amortization schedule that would be
insufficient to fully amortize the principal thereof by the stated maturity date
of the Mortgage Loan.
Business Day: Any day other than (i) a Saturday or Sunday, (ii) a
day on which banking and savings and loan institutions, in the State of New
York, the State of California or the State in which the Seller's servicing
operations are located or (iii) the state in which the Custodian's operations
are located, are authorized or obligated by law or executive order to be closed.
Closing Date: The date or dates on which the Purchaser from time to
time shall purchase, and the Seller from time to time shall sell, the Mortgage
Loans listed on the related Mortgage Loan Schedule with respect to the related
Mortgage Loan Package.
CLTV: As of any date and as to any Second Lien Loan, the ratio,
expressed as a percentage, of the (a) sum of (i) the outstanding Stated
Principal Balance of the Second Lien Loan and (ii) the outstanding Stated
Principal Balance as of such date of any mortgage loan or mortgage loans that
are senior or equal in priority to the Second Lien Loan and which are secured by
the same Mortgaged Property to (b) the Appraised Value as determined pursuant to
the Underwriting Guidelines of the related Mortgaged Property as of the
origination of the Second Lien Loan.
Code: Internal Revenue Code of 1986, as amended.
Commission: The United States Securities and Exchange Commission.
Condemnation Proceeds: All awards or settlements in respect of a
Mortgaged Property, whether permanent or temporary, partial or entire, by
exercise of the power of eminent domain or condemnation, to the extent not
required to be released to a Mortgagor in accordance with the terms of the
related Mortgage Loan Documents.
Convertible Mortgage Loan: Any individual Adjustable Rate Mortgage
Loan which contains a provision whereby the Mortgagor is permitted to convert
the Adjustable Rate Mortgage Loan to a Fixed Rate Mortgage Loan in accordance
with the terms of the related Mortgage Note.
Co-op: A private, cooperative housing corporation, having only one
class of stock outstanding, which owns or leases land and all or part of a
building or buildings, including apartments, spaces used for commercial purposes
and common areas therein and whose board of directors authorizes the sale of
stock and the issuance of a Co-op Lease.
Co-op Lease: With respect to a Co-op Loan, the lease with respect to
a dwelling unit occupied by the Mortgagor and relating to the stock allocated to
the related dwelling unit.
Co-op Loan: A Mortgage Loan secured by the pledge of stock allocated
to a dwelling unit in a residential cooperative housing corporation and a
collateral assignment of the related Co-op Lease. A private, cooperative housing
corporation, having only one class of stock outstanding, which owns or leases
land and all or part of a building or buildings, including apartments, spaces
used for commercial purposes and common areas therein and whose board of
directors authorizes the sale of stock and the issuance of a Co-op Lease.
Covered Loan: A Mortgage Loan categorized as Covered pursuant to
Appendix E of Standard & Poor's Glossary.
Custodial Account: The separate trust account created and maintained
pursuant to Section 2.04 of the Servicing Agreement (with respect to each
Mortgage Loan, as specified therein).
Custodial Agreement: The agreement(s) governing the retention of the
originals of each Mortgage Note, Mortgage, Assignment of Mortgage and other
Mortgage Loan Documents. If more than one Custodial Agreement is in effect at
any given time, all of the individual Custodial Agreements shall collectively be
referred to as the "Custodial Agreement."
Custodian: Deutsche Bank National Trust Company., a national banking
association, and its successors in interest or permitted assigns or any
successor to the Custodian under the Custodial Agreement as therein provided.
Cut-off Date: The date or dates designated as such on the related
Mortgage Loan Schedule with respect to the related Mortgage Loan Package.
Deemed Material and Adverse Representation: Each representation and
warranty identified as such in Section 9.02 of this Agreement.
Deleted Mortgage Loan: A Mortgage Loan that is repurchased or
replaced or to be replaced with a Qualified Substitute Mortgage Loan by the
Seller in accordance with the terms of this Agreement.
Depositor: The depositor, as such term is defined in Regulation AB,
with respect to any Securitization Transaction.
Determination Date: The 15th day of the month in which the related
Remittance Date occurs or, if that date is not a Business Day, the next Business
Day.
Due Date: The day of the month on which the Monthly Payment is due
on a Mortgage Loan, exclusive of any days of grace.
Eligible Account: An account or accounts (i) maintained with a
depository institution the short term debt obligations of which are rated by a
nationally recognized statistical rating agency in one of its two (2) highest
rating categories at the time of any deposit therein, (ii) the deposits of which
are insured up to the maximum permitted by the FDIC, or (iii) maintained with an
institution and in a manner acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac.
Escrow Account: The separate account created and maintained pursuant
to Section 2.06 of the Servicing Agreement (with respect to each Mortgage Loan,
as specified therein.
Escrow Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, condominium charges, and any other payments required to be escrowed by
the Mortgagor with the mortgagee pursuant to the Mortgage or any other document.
Exchange Act: The Securities Exchange Act of 1934, as amended.
▇▇▇▇▇▇ Mae: The Federal National Mortgage Association, or any
successor thereto.
▇▇▇▇▇▇ ▇▇▇ Guides: The ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇' Guide and the ▇▇▇▇▇▇ ▇▇▇
Servicers' Guide, and all amendments or additions thereto.
▇▇▇▇▇▇ Mae Transfer: As defined in Section 13.01.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHA: The Federal Housing Administration, an agency within the United
States Department of Housing and Urban Development, or any successor thereto and
including the Federal Housing Commissioner and the Secretary of Housing and
Urban Development where appropriate under the FHA Regulations.
First Lien Loan: A Mortgage Loan secured by a first lien Mortgage on
the related Mortgaged Property.
Fitch: Fitch, Inc., or its successor in interest.
Fixed Rate Mortgage Loan: A fixed rate Mortgage Loan.
▇▇▇▇▇▇▇ Mac: The Federal Home Loan Mortgage Corporation, or any
successor thereto.
▇▇▇▇▇▇▇ Mac Transfer: As defined in Section 13.01.
Gross Margin: With respect to each Adjustable Rate Mortgage Loan,
the fixed percentage amount set forth in the related Mortgage Note which amount
is added to the Index in accordance with the terms of the related Mortgage Note
to determine on each Interest Rate Adjustment Date the Mortgage Interest Rate
for such Mortgage Loan.
High Cost Loan: A Mortgage Loan (a) covered by the Home Ownership
and Equity Protection Act of 1994 ("HOEPA"), (b) with an "annual percentage
rate" or total "points and fees" payable by the related Mortgagor (as each such
term is calculated under HOEPA) that exceed the thresholds set forth by HOEPA
and its implementing regulations, including 12 C.F.R. ss. 226.32(a)(1)(i) and
(ii), (c) classified as a "high cost home," "threshold," "covered," (excluding
New Jersey "Covered Home Loans" as that term was defined in clause (1) of the
definition of that term in the New Jersey Home Ownership Security Act of 2002
that were originated between November 26, 2003 and July 7, 2004), "high risk
home," "predatory" or similar loan under any other applicable state, federal or
local law (or a similarly classified loan using different terminology under a
law imposing heightened regulatory scrutiny or additional legal liability for
residential mortgage loans having high interest rates, points and/or fees) or
(d) categorized as High Cost pursuant to Appendix E of Standard & Poor's
Glossary.
Home Loan: A Mortgage Loan categorized as Home Loan pursuant to
Appendix E of Standard & Poor's Glossary.
HUD: The Department of Housing and Urban Development, or any federal
agency or official thereof which may from time to time succeed to the functions
thereof with regard to FHA Mortgage Insurance. The term "HUD," for purposes of
this Agreement, is also deemed to include subdivisions thereof such as the FHA
and Government National Mortgage Association.
Index: The index indicated in the related Mortgage Note for each
Adjustable Rate Mortgage Loan.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged Property.
Interest Rate Adjustment Date: With respect to each Adjustable Rate
Mortgage Loan, the date, specified in the related Mortgage Note and the related
Mortgage Loan Schedule, on which the Mortgage Interest Rate is adjusted.
Interim Funder: With respect to each MERS Designated Mortgage Loan,
the Person named on the MERS System as the interim funder pursuant to the MERS
Procedures Manual.
Investor: With respect to each MERS Designated Mortgage Loan, the
Person named on the MERS System as the investor pursuant to the MERS Procedures
Manual.
Lifetime Rate Cap: The provision of each Mortgage Note related to an
Adjustable Rate Mortgage Loan which provides for an absolute maximum Mortgage
Interest Rate thereunder. The Mortgage Interest Rate during the terms of each
Adjustable Rate Mortgage Loan shall not at any time exceed the Mortgage Interest
Rate at the time of origination of such Adjustable Rate Mortgage Loan by more
than the Lifetime Rate Cap set forth as an amount per annum on the related
Mortgage Loan Schedule.
Liquidation Proceeds: Cash received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or assignment
of such Mortgage Loan, trustee's sale, foreclosure sale or otherwise or the sale
of the related Mortgaged Property if the Mortgaged Property is acquired in
satisfaction of the Mortgage Loan.
Loan-to-Value Ratio or LTV: With respect to any Mortgage Loan, the
ratio (expressed as a percentage) of the outstanding Stated Principal Balance of
the Mortgage Loan as of the related origination date (unless otherwise
indicated), to the lesser of (a) the Appraised Value of the Mortgaged Property
at origination and (b) if the Mortgage Loan was made to finance the acquisition
of the related Mortgaged Property, the purchase price of the Mortgaged Property.
MERS: Mortgage Electronic Registration Systems, Inc., a Delaware
corporation, and its successors in interest.
MERS Designated Mortgage Loan: Mortgage Loans for which (a) the
Seller has designated or will designate MERS as, and has taken or will take such
action as is necessary to cause MERS to be, the mortgagee of record, as nominee
for the Seller, in accordance with MERS Procedures Manual and (b) the Seller has
designated or will designate the Purchaser as the Investor on the MERS System.
MERS Identification Number: The eighteen digit number permanently
assigned to each MERS Designated Mortgage Loan.
MERS Procedures Manual: The MERS Procedures Manual, as it may be
amended, supplemented or otherwise modified from time to time.
MERS Report: The report from the MERS System listing MERS Designated
Mortgage Loans and other information.
MERS System: MERS mortgage electronic registry system, as more
particularly described in the MERS Procedures Manual.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
Moody's: ▇▇▇▇▇'▇ Investors Service, Inc., and any successor thereto.
Mortgage: The mortgage, deed of trust or other instrument securing a
Mortgage Note, which creates a first lien, in the case of a First Lien Loan, or
a second lien, in the case of a Second Lien Loan, on an unsubordinated estate in
fee simple in real property securing the Mortgage Note; except that with respect
to real property located in jurisdictions in which the use of leasehold estates
for residential properties is a widely accepted practice, the mortgage, deed of
trust or other instrument securing the Mortgage Note may secure and create, with
respect to a First Lien Loan, a first lien, and with respect to a Second Lien
Loan, a second lien, in each case, upon a leasehold estate of the Mortgagor.
With respect to a Co-op Loan, the Security Agreement.
Mortgage File: The items pertaining to a particular Mortgage Loan
referred to in Exhibit A annexed hereto, and any additional documents required
to be added to the Mortgage File pursuant to this Agreement.
Mortgage Interest Rate: The annual rate of interest borne on a
Mortgage Note with respect to each Mortgage Loan.
Mortgage Interest Rate Cap: With respect to an Adjustable Rate
Mortgage Loan, the limit on each Mortgage Interest Rate adjustment as set forth
in the related Mortgage Note.
Mortgage Loan: An individual Mortgage Loan which is the subject of
this Agreement, each Mortgage Loan originally sold and subject to this Agreement
being identified on the applicable Mortgage Loan Schedule, which Mortgage Loan
includes without limitation the Mortgage File, the Monthly Payments, Principal
Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds and
all other rights, benefits, proceeds and obligations arising from or in
connection with such Mortgage Loan, excluding replaced or repurchased mortgage
loans.
Mortgage Loan Documents: The documents required to be delivered to
the Custodian pursuant to Section 6.03 with respect to any Mortgage Loan.
Mortgage Loan Package: Each pool of Mortgage Loans, which shall be
purchased by the Purchaser from the Seller from time to time on each Closing
Date.
Mortgage Loan Remittance Rate: With respect to each Mortgage Loan,
the annual rate of interest remitted to the Purchaser, which shall be equal to
the Mortgage Interest Rate minus the Servicing Fee Rate.
Mortgage Loan Schedule: The schedule of Mortgage Loans setting forth
the following information with respect to each Mortgage Loan in the related
Mortgage Loan Package: (1) the Seller's Mortgage Loan identifying number; (2)
the Mortgagor's name; (3) the street address of the Mortgaged Property including
the city, state and zip code; (4) a code indicating whether the Mortgagor is
self-employed, if available; (5) a code indicating whether the Mortgaged
Property is owner-occupied, investment property or a second home; (6) the number
and type of residential units constituting the Mortgaged Property (e.g., single
family residence, a two- to four-family dwelling, condominium, planned unit
development or cooperative); (7) the original months to maturity or the
remaining months to maturity from the related Cut-off Date, in any case based on
the original amortization schedule and, if different, the maturity expressed in
the same manner but based on the actual amortization schedule; (8) with respect
to each First Lien Loan, the Loan-to-Value Ratio at origination, and with
respect to each Second Lien Loan, the CLTV at origination; (9) the Mortgage
Interest Rate as of the related Cut-off Date; (10) the date on which the first
Monthly Payment was due on the Mortgage Loan and, if such date is not consistent
with the Due Date currently in effect, the Due Date; (11) the stated maturity
date; (12) the amount of the Monthly Payment as of the related Cut-off Date;
(13) the last payment date on which a payment was actually applied to the
outstanding principal balance; (14) the initial principal amount of the Mortgage
Loan; (15) the principal balance of the Mortgage Loan as of the close of
business on the related Cut-off Date, after deduction of payments of principal
due and collected on or before the related Cut-off Date; (16) with respect to
each Adjustable Rate Mortgage Loan, the Interest Rate Adjustment Date; (17) with
respect to each Adjustable Rate Mortgage Loan, the Gross Margin; (18) with
respect to each Adjustable Rate Mortgage Loan, the Lifetime Rate Cap under the
terms of the Mortgage Note; (19) with respect to each Adjustable Rate Mortgage
Loan, a code indicating the type of Index; (20) the type of Mortgage Loan (i.e.,
Fixed Rate or Adjustable Rate Mortgage Loan, First or Second Lien Loan); (21) a
code indicating the purpose of the loan (i.e., purchase, rate/term refinance,
equity take-out refinance); (22) a code indicating the documentation style (i.e.
no documents, full, alternative, reduced, no income/no asset, stated income, no
ratio, reduced or NIV); (23) [reserved]; (24) the loan credit classification (as
described in the Underwriting Guidelines); (25) whether such Mortgage Loan
provides for a Prepayment Penalty; (26) the Prepayment Penalty period of such
Mortgage Loan, if applicable; (27) a description of the Prepayment Penalty, if
applicable; (28) the Mortgage Interest Rate as of origination; (29) the credit
risk score (FICO score); (30) the date of origination; (31) with respect to each
Adjustable Rate Mortgage Loan, the Mortgage Interest Rate adjustment period;
(32) with respect to each Adjustable Rate Mortgage Loan, the Mortgage Interest
Rate adjustment percentage; (33) with respect to each Adjustable Rate Mortgage
Loan, the Mortgage Interest Rate floor; (34) [reserved]; (35) with respect to
each Adjustable Rate Mortgage Loan, the Periodic Rate Cap as of the first
Interest Rate Adjustment Date; (36) a code indicating whether the Mortgage Loan
is a Balloon Mortgage Loan; (37) a code indicating whether the Mortgage Loan is
a Home Loan; (38) the initial Monthly Payment due; (39) the Appraised Value;
(40) [reserved]; (41) [reserved]; (42) a code indicating whether the Mortgage
Loan is covered by a PMI Policy and, if so, identifying the PMI Policy provider;
(43) PMI coverage percentage; (44) in connection with a condominium unit, a code
indicating whether the condominium project where such unit is located is
low-rise or high-rise; (45) a code indicating whether the Mortgaged Property is
a leasehold estate; (46) the MERS Identification Number, if applicable; (47) a
code indicating the documentation style, as required by Standard & Poor's
criteria; and (48) number of times previously 30+ delinquent (if applicable).
With respect to the Mortgage Loans in the aggregate, the related Mortgage Loan
Schedule shall set forth the following information, as of the related Cut-off
Date: (1) the number of Mortgage Loans; (2) the current aggregate outstanding
principal balance of the Mortgage Loans; (3) the weighted average Mortgage
Interest Rate of the Mortgage Loans; (4) the weighted average maturity of the
Mortgage Loans; (5) the average principal balance of the Mortgage Loans; (6) the
applicable Cut-off Date; and (7) the applicable Closing Date.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
Mortgaged Property: With respect to a Mortgage Loan that is not a
Co-op Loan, the Mortgagor's real property (or leasehold estate, if applicable)
securing repayment of a related Mortgage Note, consisting of an unsubordinated
estate in fee simple or, with respect to real property located in jurisdictions
in which the use of leasehold estates for residential properties is a
widely-accepted practice, a leasehold estate, in a single parcel or multiple
parcels of real property improved by a Residential Dwelling. With respect to a
Co-op Loan, the stock allocated to a dwelling unit in the residential
cooperative housing corporation that was pledged to secure such Co-op Loan and
the related Co-op Lease.
Mortgagor: The obligor on the related Mortgage Note.
OCC: Office of the Comptroller of the Currency, and any successor
thereto.
Officer's Certificate: A certificate signed by the Chairman of the
Board or the Vice Chairman of the Board or a President, a Vice President or an
Assistant Vice President and by the Treasurer or the Secretary or one of the
Assistant Treasurers or Assistant Secretaries of the Seller, and delivered to
the Purchaser as required by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be counsel
for the Seller, reasonably acceptable to the Purchaser.
Option ARM Mortgage Loan: An Adjustable Rate Mortgage Loan that
gives the related Mortgagor different payment options each month, which include:
(i) a minimum monthly payment option, (ii) an interest-only payment option or
(iii) a full principal and interest option which amortizes over 30 years or
less.
OTS: Office of Thrift Supervision, and any successor thereto.
Periodic Rate Cap: The provision of each Mortgage Note related to an
Adjustable Rate Mortgage Loan which provides for an absolute maximum amount by
which the Mortgage Interest Rate therein may increase or decrease on an Interest
Rate Adjustment Date above or below the Mortgage Interest Rate previously in
effect.
Person: Any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization, government or any agency or political subdivision thereof.
PMI Policy: A policy of primary mortgage guaranty insurance issued
by an insurer acceptable under the Underwriting Guidelines and qualified to do
business in the jurisdiction where the Mortgaged Property is located.
Preliminary Mortgage Schedule: As defined in Article III.
Prepayment Penalty: With respect to each Mortgage Loan, the penalty
if the Mortgagor prepays such Mortgage Loan as provided in the related Mortgage
Note or Mortgage.
Principal Prepayment: Any payment or other recovery of principal on
a Mortgage Loan which is received in advance of its scheduled Due Date,
excluding any Prepayment Penalty or premium thereon, if so provided in the
related Purchase Price and Terms Agreement, and which is not accompanied by an
amount of interest representing scheduled interest due on any date or dates in
any month or months subsequent to the month of prepayment.
Purchase Price: The price paid on the related Closing Date by the
Purchaser to the Seller in exchange for the Mortgage Loans purchased on such
Closing Date as calculated in Section 4.01 of this Agreement.
Purchase Price and Terms Agreement: Those certain agreements setting
forth the general terms and conditions of the transactions consummated herein
and identifying the Mortgage Loans to be purchased from time to time hereunder,
by and between the Seller and the Purchaser.
Purchaser: Barclays Bank PLC, a public limited liability company,
registered in England and Wales under Company number 1026167 and its successors
in interest and assigns, or any successor to the Purchaser under this Agreement
as herein provided.
Qualified Appraiser: An appraiser, duly appointed by the Seller, who
had no interest, direct or indirect, in the Mortgaged Property or in any loan
made on the security thereof, and whose compensation was not affected by the
approval or disapproval of the Mortgage Loan, and such appraiser and the
appraisal made by such appraiser both satisfied the requirements of Title XI of
the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 and the
regulations promulgated thereunder, all as in effect on the date the Mortgage
Loan was originated.
Qualified Correspondent: Any Person from which the Seller purchased
Mortgage Loans, provided that the following conditions are satisfied: (i) such
Mortgage Loans were originated pursuant to an agreement between the Seller and
such Person that contemplated that such Person would underwrite mortgage loans
from time to time, for sale to the Seller, in accordance with underwriting
guidelines designated by the Seller ("Designated Guidelines") or guidelines that
do not vary materially from such Designated Guidelines; (ii) such Mortgage Loans
were in fact underwritten as described in clause (i) above and were acquired by
the Seller within 180 days after origination; (iii) either (x) the Designated
Guidelines were, at the time such Mortgage Loans were originated, used by the
Seller in origination of mortgage loans of the same type as the Mortgage Loans
for the Seller's own account or (y) the Designated Guidelines were, at the time
such Mortgage Loans were underwritten, designated by the Seller on a consistent
basis for use by lenders in originating mortgage loans to be purchased by the
Seller; and (iv) the Seller employed, at the time such Mortgage Loans were
acquired by the Seller, pre-purchase or post-purchase quality assurance
procedures (which may involve, among other things, review of a sample of
mortgage loans purchased during a particular time period or through particular
channels) designed to ensure that Persons from which it purchased mortgage loans
properly applied the underwriting criteria designated by the Seller.
Qualified Substitute Mortgage Loan: A mortgage loan eligible to be
substituted by the Seller for a Deleted Mortgage Loan which must, on the date of
such substitution, (i) have an outstanding principal balance, after deduction of
all scheduled payments due in the month of substitution (or in the case of a
substitution of more than one mortgage loan for a Deleted Mortgage Loan, an
aggregate principal balance), not in excess of the outstanding principal balance
of the Deleted Mortgage Loan (the amount of any shortfall will be deposited in
the Custodial Account by the Seller in the month of substitution); (ii) have a
Mortgage Interest Rate not less than and not more than 1% greater than the
Mortgage Interest Rate of the Deleted Mortgage Loan; (iii) have a remaining term
to maturity not greater than and not more than one year less than that of the
Deleted Mortgage Loan; (iv) be of the same type as the Deleted Mortgage Loan
(i.e., fixed rate or adjustable rate with same Mortgage Interest Rate Caps); and
(v) comply with each representation and warranty (respecting individual Mortgage
Loans) set forth in Article IX.
Rating Agency: Any of Fitch, Moody's or Standard & Poor's, or their
respective successors designated by the Purchaser.
Reconstitution: Any Securitization Transaction or Whole Loan
Transfer.
Reconstitution Agreements: The agreement or agreements entered into
by the Seller and the Purchaser and/or certain third parties on the
Reconstitution Date or Dates with respect to any or all of the Mortgage Loans
sold hereunder, in connection with a Whole Loan Transfer, Agency Transfer or a
Securitization Transaction pursuant to Article XIII, including, but not limited
to, a seller's warranties and servicing agreement with respect to a Whole Loan
Transfer, and a pooling and servicing agreement and/or seller/servicer
agreements and related custodial/trust agreement and documents with respect to a
Securitization Transaction.
Reconstitution Date: As defined in Section 13.01.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1506-1631 (Jan. 7, 2005)) or by
the staff of the Commission, or as may be provided by the Commission or its
staff from time to time.
Relief Act: The Servicemembers Civil Relief Act.
Remittance Date: The date specified in the Servicing Agreement (with
respect to each Mortgage Loan, as specified therein).
Repurchase Price: As defined in the related Purchase Price and Terms
Agreement.
Residential Dwelling: Any one of the following: (i) a detached
one-family dwelling, (ii) a detached two- to four-family dwelling, (iii) a
one-family dwelling unit in a condominium project, (iv) a one-family dwelling in
a planned unit development or (v) a Co-op, none of which is a mobile home or
manufactured home.
RESPA: Real Estate Settlement Procedures Act, as amended from time
to time.
Second Lien Loan: A Mortgage Loan secured by a second lien Mortgage
on the related Mortgaged Property.
Securities Act: The Securities Act of 1933, as amended.
Securitization Transaction: Any transaction involving either (1) a
sale or other transfer of some or all of the Mortgage Loans directly or
indirectly to an issuing entity in connection with an issuance of publicly
offered or privately placed, rated or unrated mortgage-backed securities or (2)
an issuance of publicly offered or privately placed, rated or unrated
securities, the payments on which are determined primarily by reference to one
or more portfolios of residential mortgage loans consisting, in whole or in
part, of some or all of the Mortgage Loans.
Security Agreement: The agreement creating a security interest in
the stock allocated to a dwelling unit in the residential cooperative housing
corporation that was pledged to secure such Co-op Loan and the related Co-op
Lease.
Seller: As defined in the initial paragraph of the
Agreement, together with its successors in interest.
Seller Information: As defined in Section 16.04(a).
Servicing Agreement: The agreement to be entered into by the
Purchaser and the Seller, as servicer, providing for the Seller to service the
Mortgage Loans as specified by the Servicing Agreement.
Servicing Fee: With respect to each Mortgage Loan subject to the
Servicing Agreement, a fee payable monthly equal to one-twelfth of the product
of (a) the Servicing Fee Rate and (b) the outstanding principal balance of such
Mortgage Loan. Such fee shall be payable monthly and shall be pro-rated for any
portion of a month during which the Mortgage Loan is serviced by the Seller, as
servicer under the Servicing Agreement. The obligation of the Purchaser to pay
the Servicing Fee is limited to, and the Servicing Fee is payable solely from,
the interest portion (including recoveries with respect to interest from
Liquidation Proceeds, to the extent permitted by this Agreement) of such Monthly
Payment collected by the Seller, as servicer or as otherwise provided under this
Agreement.
Servicing Fee Rate: A percentage per annum as set forth in the
related Purchase Price and Terms Agreement.
Servicing File: With respect to each Mortgage Loan, the file
retained by the Seller during the period in which the Seller is acting as
servicer pursuant to the Servicing Agreement consisting of originals of all
documents in the Mortgage File which are not delivered to the Purchaser, its
designee or the Custodian and copies of the Mortgage Loan Documents set forth in
Section 2 of the Custodial Agreement.
Servicing Rights: Any and all of the following: (a) any and all
rights to service the Mortgage Loans; (b) any payments to or monies received by
the Seller for servicing the Mortgage Loans; (c) any late fees, penalties or
similar payments with respect to the Mortgage Loans; (d) all agreements or
documents creating, defining or evidencing any such servicing rights to the
extent they relate to such servicing rights and all rights of the Seller
thereunder; (e) Escrow Payments or other similar payments with respect to the
Mortgage Loans and any amounts actually collected by the Seller with respect
thereto; (f) all accounts and other rights to payment related to any of the
property described in this paragraph; and (g) any and all documents, files,
records, servicing files, servicing documents, servicing records, data tapes,
computer records, or other information pertaining to the Mortgage Loans or
pertaining to the past, present or prospective servicing of the Mortgage Loans.
Sponsor: The sponsor, as such term is defined in Item 1101(l) of
Regulation AB, with respect to any Securitization Transaction.
Standard & Poor's: Standard & Poor's Ratings Services, a division of
The ▇▇▇▇▇▇-▇▇▇▇ Companies Inc., and any successor thereto.
Standard & Poor's Glossary: The Standard & Poor's LEVELS(R)
Glossary, as may be in effect on a particular Closing Date.
Stated Principal Balance: As to each Mortgage Loan (i) the principal
balance of the Mortgage Loan at the related Cut-off Date after giving effect to
payments of principal due on or before such date, whether or not received, minus
(ii) all amounts previously distributed to the Purchaser with respect to the
related Mortgage Loan representing payments or recoveries of principal or
advances in lieu thereof.
Static Pool Information: Static pool information as described in
Item 1105(a)(1)-(3) and 1105(c) of Regulation AB.
Successor Servicer: Any servicer of one or more Mortgage Loans
designated by the Purchaser as being entitled to the benefits of the
indemnifications set forth in Sections 9.03 and 14.01.
Tax Service Contract: A paid-in-full, life-of-loan tax service
contract with First American Real Estate Tax Service, as described in Section
2.08 of the Servicing Agreement.
Third-Party Originator: Each Person, other than a Qualified
Correspondent or the Seller, that originated Mortgage Loans acquired by the
Seller.
Underwriting Guidelines: The underwriting guidelines of the Seller
in effect at the origination of each Mortgage Loan Package, a copy of which is
attached as an exhibit to the related Assignment and Conveyance.
Whole Loan Transfer: Any sale or transfer of some or all of the
Mortgage Loans, other than a Securitization Transaction.
ARTICLE II
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AGREEMENT TO PURCHASE
Section 2.01 Agreement to Purchase.
The Seller agrees to sell, without recourse, from time to time, and
the Purchaser agrees to purchase from time to time, Mortgage Loans having an
aggregate Stated Principal Balance on the related Cut-off Date in an amount as
set forth in the related Purchase Price and Terms Agreement, or in such other
amount as agreed by the Purchaser and the Seller as evidenced by the actual
aggregate principal balance of the Mortgage Loans accepted by the Purchaser on
each Closing Date.
ARTICLE III
MORTGAGE SCHEDULES
------------------
Section 3.01 Preliminary Mortgage Schedule.
The Seller from time to time shall provide the Purchaser with
certain information constituting a preliminary listing of the Mortgage Loans to
be purchased on each Closing Date in accordance with the related Purchase Price
and Terms Agreement and this Agreement (each, a "Preliminary Mortgage
Schedule").
Section 3.02 Delivery of Mortgage Loan Schedule.
The Seller shall deliver the related Mortgage Loan Schedule for the
Mortgage Loans to be purchased on a particular Closing Date to the Purchaser at
least two (2) Business Days prior to the related Closing Date.
ARTICLE IV
PURCHASE PRICE
--------------
Section 4.01 Purchase Price.
The Purchase Price for each Mortgage Loan shall be the percentage of
par as stated in the related Purchase Price and Terms Agreement (subject to
adjustment as provided therein), multiplied by the aggregate Stated Principal
Balance, as of the related Cut-off Date, of the Mortgage Loans listed on the
related Mortgage Loan Schedule. If so provided in the related Purchase Price and
Terms Agreement, portions of the Mortgage Loans shall be priced separately.
In addition to the Purchase Price as described above, the Purchaser
shall pay to the Seller, at closing, accrued interest on the Stated Principal
Balance of the related Mortgage Loans as of the related Cut-off Date at the
weighted average Mortgage Loan Remittance Rate of the Mortgage Loans from the
related Cut-off Date through the day prior to the related Closing Date,
inclusive. The Purchase Price plus accrued interest as set forth in the
preceding paragraph shall be paid to the Seller by wire transfer of immediately
available funds to an account designated by the Seller in writing.
The Purchaser shall be entitled to (1) all scheduled principal due
after the related Cut-off Date, (2) all other recoveries of principal collected
after the related Cut-off Date, (provided, however, that all scheduled payments
of principal due on or before the Cut-off Date and collected by the Seller or
any successor servicer after the related Cut-off Date shall belong to the
Seller), and (3) all payments of interest on the Mortgage Loans net of
applicable Servicing Fees (minus that portion of any such payment which is
allocable to the period prior to the related Cut-off Date) and any amounts
collected from the Mortgagor in connection with the origination of the Mortgage
Loan. Payments of scheduled principal and interest prepaid for a Due Date beyond
the related Cut-off Date shall not be applied to the principal balance as of the
related Cut-off Date. Such prepaid amounts shall be the property of the
Purchaser. The Seller shall deposit any such prepaid amounts into the Custodial
Account, which account is established for the benefit of the Purchaser for
subsequent remittance by the Seller to the Purchaser.
ARTICLE V
EXAMINATION OF MORTGAGE FILES
-----------------------------
Section 5.01 Examination of Mortgage Files.
At least five (5) Business Days prior to the related Closing Date,
the Seller shall make the Mortgage File with respect to each Mortgage Loan to be
purchased, including a copy of the Assignment of Mortgage, available for
examination at a location acceptable to the Purchaser. Such examination may be
made by the Purchaser or its designee at any reasonable time before or after the
related Closing Date. If the Purchaser makes such examination prior to the
related Closing Date and determines, in its sole discretion, that any Mortgage
Loans are unacceptable to the Purchaser for any reason, such Mortgage Loans
shall be deleted from the related Mortgage Loan Schedule, and may be replaced by
a Qualified Substitute Mortgage Loan (or Loans) acceptable to the Purchaser. The
Purchaser may, at its option and without notice to the Seller, purchase some or
all of the Mortgage Loans without conducting any partial or complete
examination. The fact that the Purchaser or its designee has conducted or has
failed to conduct any partial or complete examination of the Mortgage Files
shall not affect the Purchaser's (or any of its successor's) rights to demand
repurchase, substitution or other relief as provided herein.
ARTICLE VI
CONVEYANCE FROM SELLER TO PURCHASER
-----------------------------------
Section 6.01 Conveyance of Mortgage Loans.
The Seller, simultaneously with the delivery of the Mortgage Loan
Schedule with respect to the related Mortgage Loan Package to be purchased on
each Closing Date, shall execute and deliver an Assignment and Conveyance
Agreement in the form attached hereto as Exhibit H (the "Assignment and
Conveyance Agreement"). The Seller shall cause the Servicing File retained by
the Seller, as servicer, pursuant to this Agreement to be appropriately
identified in the Seller's computer system and/or books and records, as
appropriate, to clearly reflect the sale of the related Mortgage Loan to the
Purchaser. The Seller shall release from its custody the contents of any
Servicing File retained by it only in accordance with this Agreement or the
Servicing Agreement, except when such release is required in connection with a
repurchase of any such Mortgage Loan pursuant to Section 9.03.
Section 6.02 Books and Records.
Record title to each Mortgage as of the related Closing Date shall
be in the name of the Seller, an Affiliate of the Seller, the Purchaser or one
or more designees of the Purchaser, as the Purchaser shall select.
Notwithstanding the foregoing, each Mortgage and related Mortgage Note shall be
possessed solely by the Purchaser or the appropriate designee of the Purchaser,
as the case may be. All rights arising out of the Mortgage Loans including, but
not limited to, all funds received by the Seller after the related Cut-off Date
on or in connection with a Mortgage Loan shall be vested in the Purchaser or one
or more designees of the Purchaser; provided, however, that all funds received
on or in connection with a Mortgage Loan shall be received and held by the
Seller in trust for the benefit of the Purchaser or the appropriate designee of
the Purchaser, as the case may be, as the owner of the Mortgage Loans pursuant
to the terms of this Agreement.
The Seller shall be responsible for maintaining, and shall maintain,
a complete set of books and records for each Mortgage Loan which shall be marked
clearly to reflect the ownership of each Mortgage Loan by the Purchaser. In
particular, the Seller shall maintain in its possession, available for
inspection by the Purchaser, and shall deliver to the Purchaser upon demand,
evidence of compliance with all federal, state and local laws, rules and
regulations, and requirements of ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac, including but not
limited to documentation as to the method used in determining the applicability
of the provisions of the National Flood Insurance Act of 1968, as amended, to
the Mortgaged Property, documentation evidencing insurance coverage and periodic
inspection reports, as required by the ▇▇▇▇▇▇ Mae Guides. To the extent that
original documents are not required for purposes of realization of Liquidation
Proceeds or Insurance Proceeds, documents maintained by the Seller may be in the
form of microfilm or microfiche so long as the Seller complies with the
requirements of the ▇▇▇▇▇▇ ▇▇▇ Guides.
The sale of each Mortgage Loan shall be reflected on the Seller's
balance sheet and other financial statements as a sale of assets by the Seller.
Section 6.03 Delivery of Mortgage Loan Documents.
The Seller shall deliver and release to the Custodian no later than
two (2) Business Days prior to the related Closing Date those Mortgage Loan
Documents set forth on Exhibit A hereto as required by the Custodial Agreement
with respect to each Mortgage Loan set forth on the related Mortgage Loan
Schedule.
The Custodian shall certify its receipt of all such Mortgage Loan
Documents required to be delivered pursuant to the Custodial Agreement for the
related Closing Date, as evidenced by the Initial Certification of the Custodian
in the form annexed to the Custodial Agreement. The Seller shall comply with the
terms of the Custodial Agreement and the Purchaser shall pay all fees and
expenses of the Custodian.
The Seller shall forward to the Custodian, or to such other Person
as the Purchaser shall designate in writing, original documents evidencing an
assumption, modification, consolidation, conversion or extension of any Mortgage
Loan entered into in accordance with this Agreement within two weeks of their
execution, provided, however, that the Seller shall provide the Custodian, or to
such other Person as the Purchaser shall designate in writing, with a certified
true copy of any such document submitted for recordation within two weeks of its
execution, and shall promptly provide the original of any document submitted for
recordation or a copy of such document certified by the appropriate public
recording office to be a true and complete copy of the original within ninety
days of its submission for recordation.
In the event any document required to be delivered to the Custodian
in the Custodial Agreement, including an original or copy of any document
submitted for recordation to the appropriate public recording office, is not so
delivered to the Custodian, or to such other Person as the Purchaser shall
designate in writing, within 90 days following the related Closing Date (other
than with respect to the Assignments of Mortgage which shall be delivered to the
Custodian in blank and recorded subsequently by the Purchaser or its designee),
and in the event that the Seller does not cure such failure within 30 days of
discovery or receipt of written notification of such failure from the Purchaser,
the related Mortgage Loan shall, upon the request of the Purchaser, be
repurchased by the Seller at the price and in the manner specified in Section
9.03. The foregoing repurchase obligation shall not apply in the event that the
Seller cannot deliver an original document submitted for recordation to the
appropriate public recording office within the specified period due to a delay
caused by the recording office in the applicable jurisdiction; provided that the
Seller shall instead deliver a recording receipt of such recording office or, if
such recording receipt is not available, an officer's certificate of a servicing
officer of the Seller, confirming that such documents have been accepted for
recording; provided that, upon request of the Purchaser and delivery by the
Purchaser to the Seller of a schedule of the related Mortgage Loans, the Seller
shall reissue and deliver to the Purchaser or its designee said officer's
certificate.
Except with respect to the MERS Designated Mortgage Loans, the
Seller shall pay all initial recording fees, if any, for the Assignments of
Mortgage and any other fees or costs in transferring all original documents to
the Custodian or, upon written request of the Purchaser, to the Purchaser or the
Purchaser's designee. The Seller shall be responsible for recording the
Assignments of Mortgage, if requested.
Section 6.04 Quality Control Procedures.
The Seller must have an internal quality control program that
verifies, on a regular basis, the existence and accuracy of the legal documents,
credit documents, property appraisals, and underwriting decisions. The program
must be capable of evaluating and monitoring the overall quality of the it's
loan production and servicing activities. The program is to ensure that the
Mortgage Loans are originated and serviced in accordance with prudent mortgage
banking practices and accounting principles; guard against dishonest,
fraudulent, or negligent acts; and guard against errors and omissions by
officers, employees, or other authorized persons.
Section 6.05 MERS Designated Loans.
With respect to each MERS Designated Mortgage Loan, the Seller
shall, on or prior to the related Closing Date, designate the Purchaser as the
Investor and the Custodian as custodian, and no Person shall be listed as
Interim Funder on the MERS System. In addition, on or prior to the related
Closing Date, Seller shall provide the Custodian and the Purchaser with a MERS
Report listing the Purchaser as the Investor, the Custodian as custodian and no
Person as Interim Funder with respect to each MERS Designated Mortgage Loan.
ARTICLE VII
SERVICING OF THE MORTGAGE LOANS
-------------------------------
Section 7.01 Servicing.
The Mortgage Loans have been sold by the Seller to the Purchaser on
a servicing retained basis.
The Purchaser shall retain the Seller as independent contract
servicer of the Mortgage Loans pursuant to and in accordance with the terms and
conditions contained in the Servicing Agreement. The Purchaser and Seller shall
execute the Servicing Agreement on the initial Closing Date.
Pursuant to the Servicing Agreement, the Seller shall begin
servicing the Mortgage Loans on behalf of the Purchaser and shall be entitled to
the Servicing Fee and any Ancillary Income with respect to such Mortgage Loans
from the related Closing Date until the termination of the Servicing Agreement
with respect to any of the Mortgage Loans as set forth in the Servicing
Agreement. The Seller shall conduct such servicing in accordance with the terms
of the Servicing Agreement.
ARTICLE VIII
[RESERVED]
ARTICLE IX
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
SELLER; REMEDIES FOR BREACH
---------------------------
Section 9.01 Representations and Warranties Regarding the Seller.
The Seller represents, warrants and covenants to the Purchaser that
as of the date hereof and as of each Closing Date:
(a) Due Organization and Authority. The Seller is a federal savings
bank duly organized, validly existing, and in good standing under the laws of
the United States and has all licenses necessary to carry on its business as now
being conducted and is licensed, qualified and in good standing in the states
where each Mortgaged Property is located if the laws of such state require
licensing or qualification in order to conduct business of the type conducted by
the Seller. The Seller has power and authority to execute and deliver this
Agreement and to perform its obligations hereunder; the execution, delivery and
performance of this Agreement (including all instruments of transfer to be
delivered pursuant to this Agreement) by the Seller and the consummation of the
transactions contemplated hereby have been duly and validly authorized; this
Agreement has been duly executed and delivered and constitutes the valid, legal,
binding and enforceable obligation of the Seller, except as enforceability may
be limited by (i) bankruptcy, insolvency, liquidation, receivership, moratorium,
reorganization or other similar laws affecting the enforcement of the rights of
creditors and (ii) general principles of equity, whether enforcement is sought
in a proceeding in equity or at law. All requisite action has been taken by the
Seller to make this Agreement valid and binding upon the Seller in accordance
with its terms;
(b) No Consent Required. No consent, approval, authorization or
order is required for the transactions contemplated by this Agreement from any
court, governmental agency or body, or federal or state regulatory authority
having jurisdiction over the Seller is required or, if required, such consent,
approval, authorization or order has been or will, prior to the related Closing
Date, be obtained;
(c) Ordinary Course of Business. The consummation of the
transactions contemplated by this Agreement are in the ordinary course of
business of the Seller, and the transfer, assignment and conveyance of the
Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are
not subject to the bulk transfer or any similar statutory provisions in effect
in any applicable jurisdiction;
(d) No Conflicts. Neither the execution and delivery of this
Agreement, the acquisition or origination of the Mortgage Loans by the Seller,
the sale of the Mortgage Loans to the Purchaser, the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance with the
terms and conditions of this Agreement, will conflict with or result in a breach
of any of the terms, conditions or provisions of the Seller's charter, by-laws
or other organizational documents or any legal restriction or any agreement or
instrument to which the Seller is now a party or by which it is bound, or
constitute a default or result in an acceleration under any of the foregoing, or
result in the violation of any law, rule, regulation, order, judgment or decree
to which the Seller or its property is subject, or result in the creation or
imposition of any lien, charge or encumbrance that would have an adverse effect
upon any of its properties pursuant to the terms of any mortgage, contract, deed
of trust or other instrument, or impair the ability of the Purchaser to realize
on the Mortgage Loans, impair the value of the Mortgage Loans, or impair the
ability of the Purchaser to realize the full amount of any insurance benefits
accruing pursuant to this Agreement;
(e) No Litigation Pending. There is no action, suit, proceeding or
investigation pending or threatened against the Seller, before any court,
administrative agency or other tribunal asserting the invalidity of this
Agreement, seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or which, either in any one instance or in the
aggregate, may result in any material adverse change in the business,
operations, financial condition, properties or assets of the Seller, or in any
material impairment of the right or ability of the Seller to carry on its
business substantially as now conducted, or in any material liability on the
part of the Seller, or which would draw into question the validity of this
Agreement or the Mortgage Loans or of any action taken or to be taken in
connection with the obligations of the Seller contemplated herein, or which
would be likely to impair materially the ability of the Seller to perform under
the terms of this Agreement;
(f) Ability to Perform; Solvency. The Seller does not believe, nor
does it have any reason or cause to believe, that it cannot perform each and
every covenant contained in this Agreement. The Seller is solvent and the sale
of the Mortgage Loans will not cause the Seller to become insolvent. The sale of
the Mortgage Loans is not undertaken with the intent to hinder, delay or defraud
any of Seller's creditors;
(g) [Reserved];
(h) Anti-Money Laundering Laws. The Seller has complied with all
applicable anti-money laundering laws, regulations and executive orders,
including without limitation the USA Patriot Act of 2001 (collectively, the
"Anti-Money Laundering Laws"); the Seller has established an anti-money
laundering compliance program as required by the Anti-Money Laundering Laws, has
conducted the requisite due diligence in connection with the origination of each
Mortgage Loan for purposes of the Anti-Money Laundering Laws, including with
respect to the legitimacy of the applicable Mortgagor and the origin of the
assets used by the said Mortgagor to purchase the property in question, and
maintains, and will maintain, sufficient information to identify the applicable
Mortgagor for purposes of the Anti-Money Laundering Laws. Additionally, no
Mortgage Loan is subject to nullification pursuant to Executive Order 13224 (the
"Executive Order") or the regulations promulgated by the Office of Foreign
Assets Control of the United States Department of Treasury (the "OFAC
Regulations") or in violation of the Executive Order or the OFAC Regulations;
and no Mortgagor is subject to the provisions of such Executive Order or the
OFAC Regulations nor listed as a "blocked person" for purposes of the OFAC
Regulations;
(i) [Reserved];
(j) Selection Process. The Mortgage Loans were selected from among
the outstanding one- to four-family mortgage loans in the Seller's portfolio at
the related Closing Date as to which the representations and warranties set
forth in Section 9.02 could be made and such selection was not made in a manner
so as to affect adversely the interests of the Purchaser;
(k) No Untrue Information. Neither this Agreement nor any
information, statement, tape, diskette, report, form, or other document
furnished or to be furnished pursuant to this Agreement or any Reconstitution
Agreement or in connection with the transactions contemplated hereby (including
any Securitization Transaction or Whole Loan Transfer) contains or will contain
any untrue statement of material fact or omits or will omit to state a material
fact necessary to make the statements contained herein or therein not
misleading; and
(l) Insured Depository Institution Representations. The Seller is an
"insured depository institution" as that term is defined in Section 1813(c)(2)
of Title 12 of the United States Code, as amended, and accordingly, the Seller
makes the following additional representations and warranties:
(i) This Agreement between the Purchaser and the Seller
conforms to all applicable statutory and regulatory
requirements; and
(ii) This Agreement is (1) executed contemporaneously
with the agreement reached by the Purchaser and the Seller,
(2) approved by a specific corporate or banking association
resolution by the Seller's board of directors, which approval
shall be reflected in the minutes of said board, and (3) an
official record of the Seller. A copy of such resolution,
certified by a vice president or higher officer of the Seller
has been provided to the Purchaser.
Section 9.02 Representations and Warranties Regarding Individual
Mortgage Loans.
The Seller hereby represents and warrants to the Purchaser that, as
to each Mortgage Loan, as of the related Closing Date for such Mortgage Loan:
(a) Mortgage Loans as Described. The information set forth in the
related Mortgage Loan Schedule is complete, true and correct;
(b) Payments Current. All payments required to be made up to the
related Closing Date for the Mortgage Loan under the terms of the Mortgage Note,
other than payments not yet thirty (30) days delinquent, have been made and
credited. No payment required under the Mortgage Loan is thirty (30) days or
more delinquent nor has any payment under the Mortgage Loan been thirty (30)
days or more delinquent at any time since the origination of the Mortgage Loan,
other than as set forth on the related Mortgage Loan Schedule;
(c) No Outstanding Charges. There are no defaults in complying with
the terms of the Mortgage, and all taxes, governmental assessments, insurance
premiums, water, sewer and municipal charges, leasehold payments or ground rents
which previously became due and owing have been paid, or an escrow of funds has
been established in an amount sufficient to pay for every such item which
remains unpaid and which has been assessed but is not yet due and payable. The
Seller has not advanced funds, or induced, solicited or knowingly received any
advance of funds by a party other than the Mortgagor, directly or indirectly,
for the payment of any amount required under the Mortgage Loan, except for
interest accruing from the date of the Mortgage Note or date of disbursement of
the Mortgage Loan proceeds, whichever is earlier, to the day which precedes by
one month the related Due Date of the first installment of principal and
interest;
(d) Original Terms Unmodified. The terms of the Mortgage Note and
Mortgage have not been impaired, waived, altered or modified in any respect,
from the date of origination except by a written instrument which has been
recorded, if necessary to protect the interests of the Purchaser, and which has
been delivered to the Custodian or to such other Person as the Purchaser shall
designate in writing, and the terms of which are reflected in the related
Mortgage Loan Schedule. The substance of any such waiver, alteration or
modification has been approved by the issuer of any related PMI Policy and the
title insurer, if any, to the extent required by the policy, and its terms are
reflected on the related Mortgage Loan Schedule, if applicable. No Mortgagor has
been released, in whole or in part, except in connection with an assumption
agreement, approved by the issuer of any related PMI Policy and the title
insurer, to the extent required by the policy, and which assumption agreement is
part of the Mortgage Loan File delivered to the Custodian or to such other
Person as the Purchaser shall designate in writing and the terms of which are
reflected in the related Mortgage Loan Schedule;
(e) No Defenses. The Mortgage Loan is not subject to any right of
rescission, set-off, counterclaim or defense, including without limitation the
defense of usury, nor will the operation of any of the terms of the Mortgage
Note or the Mortgage, or the exercise of any right thereunder, render either the
Mortgage Note or the Mortgage unenforceable, in whole or in part and no such
right of rescission, set-off, counterclaim or defense has been asserted with
respect thereto, and no Mortgagor was a debtor in any state or Federal
bankruptcy or insolvency proceeding at the time the Mortgage Loan was
originated;
(f) Hazard Insurance. Pursuant to the terms of the Mortgage, all
buildings or other improvements upon the Mortgaged Property are insured by a
generally acceptable insurer against loss by fire, hazards of extended coverage
and such other hazards as are provided for in the ▇▇▇▇▇▇ ▇▇▇ Guides or by
▇▇▇▇▇▇▇ Mac, as well as all additional requirements set forth in Section 2.10 of
the Servicing Agreement. If required by the National Flood Insurance Act of
1968, as amended, each Mortgage Loan is covered by a flood insurance policy
meeting the requirements of the current guidelines of the Federal Insurance
Administration as in effect which policy conforms to ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac
requirements, as well as all additional requirements set forth in Section 2.10
of the Servicing Agreement. All individual insurance policies contain a standard
mortgagee clause naming the Seller and its successors and assigns as mortgagee,
and all premiums thereon have been paid. The Mortgage obligates the Mortgagor
thereunder to maintain the hazard insurance policy at the Mortgagor's cost and
expense, and on the Mortgagor's failure to do so, authorizes the holder of the
Mortgage to obtain and maintain such insurance at such Mortgagor's cost and
expense, and to seek reimbursement therefor from the Mortgagor. Where required
by state law or regulation, the Mortgagor has been given an opportunity to
choose the carrier of the required hazard insurance, provided the policy is not
a "master" or "blanket" hazard insurance policy covering a condominium, or any
hazard insurance policy covering the common facilities of a planned unit
development. The hazard insurance policy is the valid and binding obligation of
the insurer, is in full force and effect, and will be in full force and effect
and inure to the benefit of the Purchaser upon the consummation of the
transactions contemplated by this Agreement. The Seller has not engaged in, and
has no knowledge of the Mortgagor's having engaged in, any act or omission which
would impair the coverage of any such policy, the benefits of the endorsement
provided for herein, or the validity and binding effect of either including,
without limitation, no unlawful fee, commission, kickback or other unlawful
compensation or value of any kind has been or will be received, retained or
realized by any attorney, firm or other person or entity, and no such unlawful
items have been received, retained or realized by the Seller;
(g) Compliance with Applicable Laws. Any and all requirements of any
federal, state or local law including, without limitation, usury,
truth-in-lending, real estate settlement procedures, consumer credit protection,
equal credit opportunity, disclosure and all predatory, abusive and fair lending
laws applicable to the Mortgage Loan, including, without limitation, any
provisions relating to the Illinois Interest Act and Prepayment Penalties, have
been complied with, the consummation of the transactions contemplated hereby
will not involve the violation of any such laws or regulations, and the Seller
shall maintain in its possession, available for the Purchaser's inspection, and
shall deliver to the Purchaser upon demand, evidence of compliance with all such
requirements. This representation and warranty is a Deemed Material and Adverse
Representation;
(h) No Satisfaction of Mortgage. The Mortgage has not been
satisfied, canceled, subordinated or rescinded, in whole or in part, and the
Mortgaged Property has not been released from the lien of the Mortgage, in whole
or in part, nor has any instrument been executed that would effect any such
release, cancellation, subordination or rescission. The Seller has not waived
the performance by the Mortgagor of any action, if the Mortgagor's failure to
perform such action would cause the Mortgage Loan to be in default, nor has the
Seller waived any default resulting from any action or inaction by the
Mortgagor;
(i) Type of Mortgaged Property. With respect to a Mortgage Loan that
is not a Co-op Loan, the Mortgaged Property is a fee simple estate or a
leasehold estate located in a jurisdiction in which the use of a leasehold
estate for residential properties is a widely accepted practice that consists of
a single parcel of real property with a detached single family residence erected
thereon, or a two- to four-family dwelling, or an individual residential
condominium unit in a condominium project, or an individual unit in a planned
unit development, or an individual unit in a residential cooperative housing
corporation; provided, however, that any condominium unit, planned unit
development or residential cooperative housing corporation shall conform with
the Underwriting Guidelines. No portion of the Mortgaged Property (or underlying
Mortgaged Property, in the case of a Co-op Loan) is used for commercial
purposes, and since the date of origination, no portion of the Mortgaged
Property has been used for commercial purposes (as described under the ▇▇▇▇▇▇
Mae Guides); provided, that Mortgaged Properties which contain a home office
shall not be considered as being used for commercial purposes as long as the
Mortgaged Property has not been altered for commercial purposes and is not
storing any chemicals or raw materials other than those commonly used for
homeowner repair, maintenance and/or household purposes. None of the Mortgaged
Properties are manufactured homes, log homes, mobile homes, geodesic domes or
other unique property types;
(j) Valid First or Second Lien. The Mortgage is a valid, subsisting,
enforceable and perfected, first lien (with respect to a First Lien Loan) or
second lien (with respect to a Second Lien Loan) on the Mortgaged Property,
including all buildings and improvements on the Mortgaged Property and all
installations and mechanical, electrical, plumbing, heating and air conditioning
systems located in or annexed to such buildings, and all additions, alterations
and replacements made at any time with respect to the foregoing. The lien of the
Mortgage is subject only to:
(i) with respect to a Second Lien Loan only, the lien of the first
mortgage on the Mortgaged Property;
(ii) the lien of current real property taxes and assessments not
yet due and payable;
(iii) covenants, conditions and restrictions, rights of way,
easements and other matters of the public record as of the
date of recording acceptable to prudent mortgage lending
institutions generally and specifically referred to in the
lender's title insurance policy delivered to the originator of
the Mortgage Loan and (a) specifically referred to or
otherwise considered in the appraisal made for the originator
of the Mortgage Loan or (b) which do not adversely affect the
Appraised Value of the Mortgaged Property set forth in such
appraisal; and
(iv) 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 the Mortgage or the use,
enjoyment, value or marketability of the related Mortgaged
Property.
Any security agreement, chattel mortgage or equivalent document
related to and delivered in connection with the Mortgage Loan establishes and
creates a valid, subsisting, enforceable and perfected first lien (with respect
to a First Lien Loan) or second lien (with respect to a Second Lien Loan) and
first priority (with respect to a First Lien Loan) or second priority (with
respect to a Second Lien Loan) security interest on the property described
therein and the Seller has full right to sell and assign the same to the
Purchaser.
(k) Valid First or Second Priority Security Interest. With respect
to any Co-op Loan, the related Mortgage is a valid, subsisting, enforceable and
perfected, first priority security interest (with respect to a First Lien Loan)
or second priority security interest (with respect to a Second Lien Loan) on the
related cooperative shares securing the Mortgage Note, subject only to (a) liens
of the related residential cooperative housing corporation for unpaid
assessments representing the Mortgagor's pro rata share of the related
residential cooperative housing corporation's payments for its blanket mortgage,
current and future real property taxes, insurance premiums, maintenance fees and
other assessments to which like collateral is commonly subject and (b) other
matters to which like collateral is commonly subject which do not materially
interfere with the benefits of the security interest intended to be provided by
the related Security Agreement;
(l) Request for Notice; No Consent Required. With respect to any
Second Lien Loan, where required or customary in the jurisdiction in which the
Mortgaged Property is located, the original lender has filed for record a
request for notice of any action by the related senior lienholder, and the
Seller has notified such senior lienholder in writing of the existence of the
Second Lien Loan and requested notification of any action to be taken against
the Mortgagor by such senior lienholder. Either (a) no consent for the Second
Lien Loan is required by the holder of the related first lien or (b) such
consent has been obtained and is contained in the Mortgage File. This
representation and warranty is a Deemed Material and Adverse Representation;
(m) Validity of Mortgage Documents. The Mortgage Note and the
Mortgage and any other agreement executed and delivered by a Mortgagor in
connection with a Mortgage Loan are genuine, and each is the legal, valid and
binding obligation of the maker thereof enforceable in accordance with its terms
(including, without limitation, any provisions therein relating to Prepayment
Penalties). All parties to the Mortgage Note, the Mortgage and any other such
related agreement had legal capacity to enter into the Mortgage Loan and to
execute and deliver the Mortgage Note, the Mortgage and any such agreement, and
the Mortgage Note, the Mortgage and any other such related agreement have been
duly and properly executed by other such related parties. To the knowledge of
the Seller, no fraud, error, omission, misrepresentation, negligence or similar
occurrence with respect to a Mortgage Loan has taken place on the part of the
Seller in connection with the origination of the Mortgage Loan or in the
application of any insurance in relation to such Mortgage Loan. No fraud, error,
omission, misrepresentation, negligence or similar occurrence with respect to a
Mortgage Loan has taken place on the part of any other Person, including without
limitation, the Mortgagor, any appraiser, any builder or developer, or any other
party involved in the origination of the Mortgage Loan or in the application for
any insurance in relation to such Mortgage Loan.
(n) Full Disbursement of Proceeds. The Mortgage Loan has been closed
and the proceeds of the Mortgage Loan have been fully disbursed and there is no
requirement for future advances thereunder, and any and all requirements as to
completion of any on-site or off-site improvement and as to disbursements of any
escrow funds therefor have been complied with. All costs, fees and expenses
incurred in making or closing the Mortgage Loan and the recording of the
Mortgage were paid, and the Mortgagor is not entitled to any refund of any
amounts paid or due under the Mortgage Note or Mortgage;
(o) Ownership. The Seller is the sole owner of record and holder of
the Mortgage Loan and the indebtedness evidenced by each Mortgage Note and upon
the sale of the Mortgage Loans to the Purchaser, the Seller will retain the
Mortgage Files or any part thereof with respect thereto not delivered to the
Custodian, the Purchaser or the Purchaser's designee, in trust only for the
purpose of servicing and supervising the servicing of each Mortgage Loan. The
Mortgage Loan is not assigned or pledged, and the Seller has good, indefeasible
and marketable title thereto, and has full right to transfer and sell the
Mortgage Loan to the Purchaser free and clear of any encumbrance, equity,
participation interest, lien, pledge, charge, claim or security interest, and
has full right and authority subject to no interest or participation of, or
agreement with, any other party, to sell and assign each Mortgage Loan pursuant
to this Agreement and following the sale of each Mortgage Loan, the Purchaser
will own such Mortgage Loan free and clear of any encumbrance, equity,
participation interest, lien, pledge, charge, claim or security interest. The
Seller intends to relinquish all rights to possess, control and monitor the
Mortgage Loan.
(p) Doing Business. All parties which have had any interest in the
Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or,
during the period in which they held and disposed of such interest, were) (1) in
compliance with any and all applicable licensing requirements of the laws of the
state wherein the Mortgaged Property is located, and (2) either (i) organized
under the laws of such state, or (ii) qualified to do business in such state, or
(iii) a federal savings and loan association, a savings bank or a national bank
having a principal office in such state, or (3) not doing business in such
state;
(q) CLTV, LTV and PMI Policy. No Mortgage Loan that is a Second Lien
Loan has a CLTV greater than 100%. No Mortgage Loan has an LTV greater than
100%. Any Mortgage Loan that had at the time of origination an LTV in excess of
80% is insured as to payment defaults by a PMI Policy. Any PMI Policy in effect
covers the related Mortgage Loan for the life of such Mortgage Loan. All
provisions of such PMI Policy have been and are being complied with, such policy
is in full force and effect, and all premiums due thereunder have been paid. No
action, inaction, or event has occurred and no state of facts exists that has,
or will result in the exclusion from, denial of, or defense to coverage. Any
Mortgage Loan subject to a PMI Policy obligates the Mortgagor thereunder to
maintain the PMI Policy and to pay all premiums and charges in connection
therewith or is lender-paid. The Mortgage Interest Rate for the Mortgage Loan as
set forth on the related Mortgage Loan Schedule is net of any such insurance
premium if the related PMI Policy is lender-paid;
(r) Title Insurance. With respect to a Mortgage Loan which is not a
Co-op Loan, the Mortgage Loan is covered by an ALTA lender's title insurance
policy, or with respect to any Mortgage Loan for which the related Mortgaged
Property is located in California a CLTA lender's title insurance policy, or
other generally acceptable form of policy or insurance acceptable to ▇▇▇▇▇▇ ▇▇▇
or ▇▇▇▇▇▇▇ Mac and each such title insurance policy is issued by a title insurer
acceptable to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac and qualified to do business in the
jurisdiction where the Mortgaged Property is located, insuring the Seller, its
successors and assigns, as to the first (with respect to a First Lien Loan) or
second (with respect to a Second Lien Loan) priority lien of the Mortgage in the
original principal amount of the Mortgage Loan (or to the extent a Mortgage Note
provides for negative amortization, the maximum amount of negative amortization
in accordance with the Mortgage), subject only to the exceptions contained in
clauses (i), (ii) and (iii) of paragraph (j) of this Section 9.02, and in the
case of Adjustable Rate Mortgage Loans, against any loss by reason of the
invalidity or unenforceability of the lien resulting from the provisions of the
Mortgage providing for adjustment to the Mortgage Interest Rate and Monthly
Payment. Where required by state law or regulation, the Mortgagor has been given
the opportunity to choose the carrier of the required mortgage title insurance.
Additionally, such lender's title insurance policy affirmatively insures ingress
and egress, and against encroachments by or upon the Mortgaged Property or any
interest therein. The Seller, its successor and assigns, are the sole insureds
of such lender's title insurance policy, and such lender's title insurance
policy is valid and remains in full force and effect and will be in force and
effect upon the consummation of the transactions contemplated by this Agreement.
No claims have been made under such lender's title insurance policy, and no
prior holder of the related Mortgage, including the Seller, has done, by act or
omission, anything which would impair the coverage of such lender's title
insurance policy, including without limitation, no unlawful fee, commission,
kickback or other unlawful compensation or value of any kind has been or will be
received, retained or realized by any attorney, firm or other person or entity,
and no such unlawful items have been received, retained or realized by the
Seller;
(s) No Defaults. Other than payments due but not yet 30 days or more
delinquent, there is no default, breach, violation or event which would permit
acceleration existing under the Mortgage or the Mortgage Note and no event
which, with the passage of time or with notice and the expiration of any grace
or cure period, would constitute a default, breach, violation or event which
would permit acceleration, and neither the Seller nor any of its Affiliates nor
any of their respective predecessors, have waived any default, breach, violation
or event which would permit acceleration;
(t) No Mechanics' Liens. There are no mechanics' or similar liens or
claims which have been filed for work, labor or material (and no rights are
outstanding that under the law could give rise to such liens) affecting the
related Mortgaged Property which are or may be liens prior to, or equal or
coordinate with, the lien of the related Mortgage;
(u) Location of Improvements; No Encroachments. All improvements
which were considered in determining the Appraised Value of the Mortgaged
Property lay wholly within the boundaries and building restriction lines of the
Mortgaged Property, and no improvements on adjoining properties encroach upon
the Mortgaged Property. No improvement located on or being part of the Mortgaged
Property is in violation of any applicable zoning law or regulation;
(v) Origination; Payment Terms. The Mortgage Loan was originated by
a mortgagee approved by the Secretary of Housing and Urban Development pursuant
to Sections 203 and 211 of the National Housing Act, a savings and loan
association, a savings bank, a commercial bank, credit union, insurance company
or other similar institution which is supervised and examined by a federal or
state authority. Principal payments on the Mortgage Loan commenced no more than
seventy days after funds were disbursed in connection with the Mortgage Loan.
The Mortgage Interest Rate as well as, in the case of an Adjustable Rate
Mortgage Loan, the Lifetime Rate Cap and the Periodic Cap are as set forth on
the related Mortgage Loan Schedule. The Mortgage Note is payable in monthly
installments of principal and interest, which installments of interest, with
respect to Adjustable Rate Mortgage Loans, are subject to change due to the
adjustments to the Mortgage Interest Rate on each Interest Rate Adjustment Date,
with interest calculated and payable in arrears, sufficient to amortize the
Mortgage Loan fully by the stated maturity date, over an original term of not
more than thirty years from commencement of amortization (other than with
respect to Option ARM Mortgage Loans and Balloon Mortgage Loans). Unless
otherwise specified on the related Mortgage Loan Schedule, the Mortgage Loan is
payable on the first day of each month. Except for Balloon Mortgage Loans, the
Mortgage Loan does not require a balloon payment on its stated maturity date;
(w) Customary Provisions. The Mortgage contains customary and
enforceable provisions such as to render the rights and remedies of the holder
thereof adequate for the realization against the Mortgaged Property of the
benefits of the security provided thereby, including, (i) in the case of a
Mortgage designated as a deed of trust, by trustee's sale, and (ii) otherwise by
judicial foreclosure. Upon default by a Mortgagor on a Mortgage Loan and
foreclosure on, or trustee's sale of, the Mortgaged Property pursuant to the
proper procedures, the holder of the Mortgage Loan will be able to deliver good
and merchantable title to the Mortgaged Property. There is no homestead or other
exemption available to a Mortgagor which would interfere with the right to sell
the Mortgaged Property at a trustee's sale or the right to foreclose the
Mortgage, subject to applicable federal and state laws and judicial precedent
with respect to bankruptcy and right of redemption or similar law;
(x) Conformance with Agency and Underwriting Guidelines. The
Mortgage Loan was underwritten in accordance with the Underwriting Guidelines
subject to such exceptions as the Seller shall have approved; provided the
Purchaser is notified of the Seller's exception policies. The Mortgage Note and
Mortgage are on forms acceptable to ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ Mae and the Seller has
not made any representations to a Mortgagor that are inconsistent with the
mortgage instruments used;
(y) Occupancy of the Mortgaged Property. As of the related Closing
Date the Mortgaged Property is lawfully occupied under applicable law. 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 but not limited to certificates of
occupancy and fire underwriting certificates, have been made or obtained from
the appropriate authorities. Unless otherwise specified on the related Mortgage
Loan Schedule, the Mortgagor represented at the time of origination of the
Mortgage Loan that the Mortgagor would occupy the Mortgaged Property as the
Mortgagor's primary residence;
(z) No Additional Collateral. The Mortgage Note is not and has not
been secured by any collateral except the lien of the corresponding Mortgage and
the security interest of any applicable security agreement or chattel mortgage
referred to in clause (j) above;
(aa) Deeds of Trust. In the event the Mortgage constitutes a deed of
trust, a trustee, authorized and duly qualified under applicable law to serve as
such, has been properly designated and currently so serves and is named in the
Mortgage, and no fees or expenses are or will become payable by the Purchaser to
the trustee under the deed of trust, except in connection with a trustee's sale
after default by the Mortgagor;
(bb) [Reserved];
(cc) Delivery of Mortgage Documents. The Mortgage Note, the
Mortgage, the Assignment of Mortgage and any other documents required to be
delivered under the Custodial Agreement for each Mortgage Loan have been
delivered to the Custodian. The Seller is in possession of a complete, true and
accurate Mortgage File in compliance with Exhibit A hereto, except for such
documents the originals of which have been delivered to the Custodian;
(dd) Condominiums/Planned Unit Developments. If the Mortgaged
Property is a condominium unit or a planned unit development (other than a de
minimis planned unit development) such condominium or planned unit development
project such Mortgage Loan was originated in accordance with, and the Mortgaged
Property meets the guidelines set forth in the Underwriting Guidelines;
(ee) Transfer of Mortgage Loans. The Assignment of Mortgage (except
with respect to any Mortgage that has been recorded in the name of MERS or its
designee) with respect to each Mortgage Loan is in recordable form and is
acceptable for recording under the laws of the jurisdiction in which the
Mortgaged Property is located;
(ff) Due-On-Sale. The Mortgage contains an enforceable provision for
the acceleration of the payment of the unpaid principal balance of the Mortgage
Loan in the event that the Mortgaged Property is sold or transferred without the
prior written consent of the mortgagee thereunder;
(gg) Assumability. With respect to each Adjustable Rate Mortgage
Loan, the Mortgage Loan Documents provide that after the related first Interest
Rate Adjustment Date, a related Mortgage Loan may only be assumed if the party
assuming such Mortgage Loan meets certain credit requirements stated in the
Mortgage Loan Documents;
(hh) No Buydown Provisions; No Graduated Payments or Contingent
Interests. The Mortgage Loan does not contain provisions pursuant to which
Monthly Payments are paid or partially paid with funds deposited in any separate
account established by the Seller, the Mortgagor, or anyone on behalf of the
Mortgagor, or paid by any source other than the Mortgagor nor does it contain
any other similar provisions which may constitute a "buydown" provision. The
Mortgage Loan is not a graduated payment mortgage loan and the Mortgage Loan
does not have a shared appreciation or other contingent interest feature;
(ii) Consolidation of Future Advances. Any future advances made to
the Mortgagor prior to the applicable Cut-off Date have been consolidated with
the outstanding principal amount secured by the Mortgage, and the secured
principal amount, as consolidated, bears a single interest rate and single
repayment term. The lien of the Mortgage securing the consolidated principal
amount is expressly insured as having first (with respect to a First Lien Loan)
or second (with respect to a Second Lien Loan) lien priority by a title
insurance policy, an endorsement to the policy insuring the mortgagee's
consolidated interest or by other title evidence acceptable to ▇▇▇▇▇▇ ▇▇▇ and
▇▇▇▇▇▇▇ Mac. The consolidated principal amount does not exceed the original
principal amount of the Mortgage Loan;
(jj) Mortgaged Property Undamaged; No Condemnation Proceedings.
There is no proceeding pending or threatened for the total or partial
condemnation of the Mortgaged Property. The Mortgaged Property is undamaged by
waste, fire, earthquake or earth movement, windstorm, flood, tornado or other
casualty so as to affect adversely the value of the Mortgaged Property as
security for the Mortgage Loan or the use for which the premises were intended
and each Mortgaged Property is in good repair. There have not been any
condemnation proceedings with respect to the Mortgaged Property;
(kk) Collection Practices; Escrow Deposits; Interest Rate
Adjustments. The origination, servicing and collection practices used by the
Seller and with respect to the Mortgage Loan have been in all respects in
compliance with Accepted Servicing Practices, applicable laws and regulations,
and have been in all respects legal and proper. With respect to escrow deposits
and Escrow Payments, all such payments are in the possession of, or under the
control of, the Seller and there exist no deficiencies in connection therewith
for which customary arrangements for repayment thereof have not been made. All
Escrow Payments have been collected in full compliance with state and federal
law and the provisions of the related Mortgage Note and Mortgage. An escrow of
funds is not prohibited by applicable law and has been established in an amount
sufficient to pay for every item that remains unpaid and has been assessed but
is not yet due and payable. No escrow deposits or Escrow Payments or other
charges or payments due the Seller have been capitalized under the Mortgage or
the Mortgage Note. All Mortgage Interest Rate adjustments have been made in
strict compliance with state and federal law and the terms of the related
Mortgage and Mortgage Note on the related Interest Rate Adjustment Date. If,
pursuant to the terms of the Mortgage Note, another index was selected for
determining the Mortgage Interest Rate, the same index was used with respect to
each Mortgage Note which required a new index to be selected, and such selection
did not conflict with the terms of the related Mortgage Note. The Seller
executed and delivered any and all notices required under applicable law and the
terms of the related Mortgage Note and Mortgage regarding the Mortgage Interest
Rate and the Monthly Payment adjustments. Any interest required to be paid
pursuant to state, federal and local law has been properly paid and credited;
(ll) Conversion to Fixed Interest Rate. The Mortgage Loan does not
contain a provision whereby the Mortgagor is permitted to convert the Mortgage
Interest Rate from an adjustable rate to a fixed rate;
(mm) Other Insurance Policies; No Defense to Coverage. No action,
inaction or event has occurred and no state of facts exists or has existed on or
prior to the Closing Date that has resulted or will result in the exclusion
from, denial of, or defense to coverage under any applicable hazard insurance
policy, PMI Policy or bankruptcy bond (including, without limitation, any
exclusions, denials or defenses which would limit or reduce the availability of
the timely payment of the full amount of the loss otherwise due thereunder to
the insured), irrespective of the cause of such failure of coverage. In
connection with the placement of any such insurance, no commission, fee, or
other compensation has been or will be received by the Seller or by any officer,
director, or employee of the Seller or any designee of the Seller or any
corporation in which the Seller or any officer, director, or employee had a
financial interest at the time of placement of such insurance;
(nn) No Violation of Environmental Laws. There is no pending action
or proceeding directly involving the Mortgaged Property in which compliance with
any environmental law, rule or regulation is an issue; there is no violation of
any environmental law, rule or regulation with respect to the Mortgaged
Property; and nothing further remains to be done to satisfy in full all
requirements of each such law, rule or regulation constituting a prerequisite to
use and enjoyment of said property;
(oo) Servicemembers' Civil Relief Act. The Mortgagor has not
notified the Seller, and the Seller has no knowledge of any relief requested or
allowed to the Mortgagor under the Relief Act, or other similar state statute;
(pp) Appraisal. The Mortgage File contains an appraisal of the
related Mortgaged Property signed prior to the approval of the Mortgage Loan
application by a Qualified Appraiser;
(qq) Disclosure Materials. The Mortgagor has executed a statement to
the effect that the Mortgagor has received all disclosure materials required by,
and the Seller has complied with, all applicable law with respect to the making
of the Mortgage Loans. The Seller shall maintain such statement in the Mortgage
File;
(rr) Construction or Rehabilitation of Mortgaged Property. No
Mortgage Loan was made in connection with the construction (other than a
"construct-to-perm" loan) or rehabilitation of a Mortgaged Property or
facilitating the trade-in or exchange of a Mortgaged Property;
(ss) Escrow Analysis. If applicable, with respect to each Mortgage,
the Seller has within the last twelve months (unless such Mortgage was
originated within such twelve month period) analyzed the required Escrow
Payments for each Mortgage and adjusted the amount of such payments so that,
assuming all required payments are timely made, any deficiency will be
eliminated on or before the first anniversary of such analysis, or any overage
will be refunded to the Mortgagor, in accordance with RESPA and any other
applicable law;
(tt) Prior Servicing. Each Mortgage Loan has been serviced in all
material respects in strict compliance with Accepted Servicing Practices;
(uu) No Default Under First Lien. With respect to each Second Lien
Loan, the related First Lien Loan is in full force and effect, and there is no
default, lien, breach, violation or event which would permit acceleration
existing under such first lien Mortgage or Mortgage Note, and no event which,
with the passage of time or with notice and the expiration of any grace or cure
period, would constitute a default, breach, violation or event which would
permit acceleration under such First Lien Loan. This representation and warranty
is a Deemed Material and Adverse Representation;
(vv) Right to Cure First Lien. With respect to each Second Lien
Loan, the related first lien Mortgage contains a provision which provides for
giving notice of default or breach to the mortgagee under the Mortgage Loan and
allows such mortgagee to cure any default under the related first lien Mortgage.
This representation and warranty is a Deemed Material and Adverse
Representation;
(ww) No Failure to Cure Default. The Seller has not received a
written notice of default of any senior mortgage loan related to the Mortgaged
Property which has not been cured;
(xx) Credit Information. As to each consumer report (as defined in
the Fair Credit Reporting Act, Public Law 91-508) or other credit information
furnished by the Seller to the Purchaser, that Seller has full right and
authority and is not precluded by law or contract from furnishing such
information to the Purchaser and the Purchaser is not precluded from furnishing
the same to any subsequent or prospective purchaser of such Mortgage;
(yy) Leaseholds. If the Mortgage Loan is secured by a leasehold
estate, (1) the ground lease is assignable or transferable; (2) the ground lease
will not terminate earlier than five years after the maturity date of the
Mortgage Loan; (3) the ground lease does not provide for termination of the
lease in the event of lessee's default without the mortgagee being entitled to
receive written notice of, and a reasonable opportunity to cure the default; (4)
the ground lease permits the mortgaging of the related Mortgaged Property; (5)
the ground lease protects the mortgagee's interests in the event of a property
condemnation; (6) all ground lease rents, other payments, or assessments that
have become due have been paid; and (7) the use of leasehold estates for
residential properties is a widely accepted practice in the jurisdiction in
which the Mortgaged Property is located;
(zz) Prepayment Penalty. Each Mortgage Loan that is subject to a
Prepayment Penalty as provided in the related Mortgage Note is identified on the
related Mortgage Loan Schedule. With respect to each Mortgage Loan that has a
Prepayment Penalty feature, each such Prepayment Penalty is enforceable and each
Prepayment Penalty is permitted pursuant to federal, state and local law. Each
such Prepayment Penalty is in an amount not more than the maximum amount
permitted under applicable law and no such Prepayment Penalty may provide for a
term in excess of five (5) years with respect to Mortgage Loans originated prior
to October 1, 2002. With respect to Mortgage Loans originated on or after
October 1, 2002, except as set forth on the related Mortgage Loan Schedule, the
duration of the Prepayment Penalty period shall not exceed three (3) years from
the date of the Mortgage Note unless the Mortgage Loan was modified to reduce
the Prepayment Penalty period to no more than three (3) years from the date of
the related Mortgage Note and the Mortgagor was notified in writing of such
reduction in Prepayment Penalty period. With respect to any Mortgage Loan that
contains a provision permitting imposition of a Prepayment Penalty upon a
prepayment prior to maturity: (i) the Mortgage Loan provides some benefit to the
Mortgagor (e.g., a rate or fee reduction) in exchange for accepting such
Prepayment Penalty, (ii) prior to the Mortgage Loan's origination, the Mortgagor
was offered the option of obtaining a mortgage loan that did not require payment
of such a penalty, (iii) the Prepayment Penalty was adequately disclosed to the
Mortgagor in the mortgage loan documents pursuant to applicable state, local and
federal law, and (iv) notwithstanding any state, local or federal law to the
contrary, the Seller shall not impose such Prepayment Penalty in any instance
when the mortgage debt is accelerated or paid off in connection with the workout
of a delinquent Mortgage Loan or as a result of the Mortgagor's default in
making the Mortgage Loan payments. This representation and warranty is a Deemed
Material and Adverse Representation;
(aaa) Predatory Lending Regulations. No Mortgage Loan is a High Cost
Loan or Covered Loan, as applicable, and no Mortgage Loan originated on or after
October 1, 2002 through March 6, 2003 is governed by the Georgia Fair Lending
Act. No Mortgage Loan is covered by the Home Ownership and Equity Protection Act
of 1994 and no Mortgage Loan is in violation of any comparable state or local
law. This representation and warranty is a Deemed Material and Adverse
Representation;
(bbb) Qualified Mortgage. The Mortgage Loan is a "qualified mortgage
under Section 860G(a)(3) of the Code;
(ccc) Tax Service Contract. Each Mortgage Loan is covered by a paid
in full, life of loan, tax service contract issued by a provider reasonably
acceptable to the Purchaser and such contract is transferable at no cost to the
Purchaser or any Successor Servicer;
(ddd) Origination. No predatory or deceptive lending practices,
including, without limitation, the extension of credit without regard to the
ability of the Mortgagor to repay and the extension of credit which has no
apparent benefit to the Mortgagor, were employed in the origination of the
Mortgage Loan;
(eee) Recordation. Each original Mortgage was recorded and all
subsequent assignments of the original Mortgage (other than the assignment to
the Purchaser) have been recorded in the appropriate jurisdictions wherein such
recordation is necessary to perfect the lien thereof as against creditors of the
Seller, or is in the process of being recorded;
(fff) Co-op Loans. With respect to a Mortgage Loan that is a Co-op
Loan, (i) a search for filings of financing statements has been made by a
company competent to make the same, which company is acceptable to ▇▇▇▇▇▇ ▇▇▇
and qualified to do business in the jurisdiction where the cooperative unit is
located, and such search has not found anything which would materially and
adversely affect the Co-op Loan, (ii) the stock that is pledged as security for
the Mortgage Loan is held by a person as a "tenant-stockholder" and the related
cooperative corporation that owns title to the related cooperative apartment
building is a "cooperative housing corporation," each within the meaning of
Section 216 of the Code and (iii) there is no prohibition against pledging the
shares of the cooperative corporation or assigning the Co-op Lease;
(ggg) Mortgagor Bankruptcy. On or prior to the Closing Date, the
Mortgagor has not filed and a bankruptcy petition or has not become the subject
of involuntary bankruptcy proceedings or has not consented to the filing of a
bankruptcy proceeding against it or to a receiver being appointed in respect of
the related Mortgaged Property;
(hhh) [Reserved].
(iii) [Reserved].
(jjj) ▇▇▇▇▇▇ Mae Guides Anti-Predatory Lending Eligibility. Each
Mortgage Loan is in compliance with the anti-predatory lending eligibility for
purchase requirements of ▇▇▇▇▇▇ ▇▇▇ Guides. This representation and warranty is
a Deemed Material and Adverse Representation;
(kkk) Mortgagor Selection. The Mortgagor was not encouraged or
required to select a Mortgage Loan product offered by the Seller which is a
higher cost product designed for less creditworthy mortgagors, unless at the
time of the Mortgage Loan's origination, such Mortgagor did not qualify taking
into account such facts as, without limitation, the Mortgage Loan's requirements
and the Mortgagor's credit history, income, assets and liabilities and
debt-to-income ratios for a lower-cost credit product then offered by the Seller
or any Affiliate of the Seller. If, at the time of loan application, the
Mortgagor may have qualified for a lower-cost credit product then offered by any
mortgage lending Affiliate of the Seller, the Seller referred the related
Mortgagor's application to such Affiliate for underwriting consideration. For a
Mortgagor who seeks financing through a Mortgage Loan originator's higher-priced
subprime lending channel, the Mortgagor was directed towards or offered the
Mortgage Loan originator's standard mortgage line if the Mortgagor was able to
qualify for one of the standard products. This representation and warranty is a
Deemed Material and Adverse Representation;
(lll) Underwriting Methodology. The methodology used in underwriting
the extension of credit for each Mortgage Loan does not rely solely on the
extent of the related Mortgagor's equity in the collateral as the principal
determining factor in approving such extension of credit. The methodology
employed objective criteria such as the Mortgagor's income, assets and
liabilities, to the proposed mortgage payment and, based on such methodology,
the Mortgage Loan's originator made a reasonable determination that at the time
of origination the Mortgagor had the ability to make timely payments on the
Mortgage Loan. Such underwriting methodology confirmed that at the time of
origination (application/approval) the related Mortgagor had a reasonable
ability to make timely payments on the Mortgage Loan. This representation and
warranty is a Deemed Material and Adverse Representation;
(mmm) Purchase of Insurance. No Mortgagor was required to purchase
any single premium credit insurance policy (e.g., life, mortgage, disability,
property, accident, unemployment or health insurance product) or debt
cancellation agreement as a condition of obtaining the extension of credit. No
Mortgagor obtained a prepaid single-premium credit insurance policy (e.g., life,
mortgage, disability, property, accident, unemployment, or health insurance) in
connection with the origination of the Mortgage Loan. No proceeds from any
Mortgage Loan were used to purchase single premium credit insurance policies or
debt cancellation agreements as part of the origination of, or as a condition to
closing, such Mortgage Loan. This representation and warranty is a Deemed
Material and Adverse Representation;
(nnn) Points and Fees. No Mortgagor was charged "points and fees"
(whether or not financed) in an amount greater than (i) $1,000, or (ii) 5% of
the principal amount of such Mortgage Loan, whichever is greater. For purposes
of this representation, such 5% limitation is calculated in accordance with
▇▇▇▇▇▇ Mae's anti-predatory lending requirements as set forth in the ▇▇▇▇▇▇ ▇▇▇
Guides and "points and fees" (x) include origination, underwriting, broker and
finder fees and charges that the mortgagee imposed as a condition of making the
Mortgage Loan, whether they are paid to the mortgagee or a third party, and (y)
exclude bona fide discount points, fees paid for actual services rendered in
connection with the origination of the Mortgage Loan (such as attorneys' fees,
notaries fees and fees paid for property appraisals, credit reports, surveys,
title examinations and extracts, flood and tax certifications, and home
inspections), the cost of mortgage insurance or credit-risk price adjustments,
the costs of title, hazard, and flood insurance policies, state and local
transfer taxes or fees, escrow deposits for the future payment of taxes and
insurance premiums, and other miscellaneous fees and charges, which
miscellaneous fees and charges, in total, do not exceed 0.25% of the principal
amount of such Mortgage Loan. This representation and warranty is a Deemed
Material and Adverse Representation;
(ooo) Disclosure of Fees and Charges. All fees and charges
(including finance charges), whether or not financed, assessed, collected or to
be collected in connection with the origination and servicing of each Mortgage
Loan, have been disclosed in writing to the Mortgagor in accordance with
applicable state and federal law and regulation. This representation and
warranty is a Deemed Material and Adverse Representation;
(ppp) Balloon Mortgage Loans. No Balloon Mortgage Loan has an
original stated maturity of less than seven (7) years;
(qqq) No Arbitration. No Mortgage Loan originated on or after August
1, 2004 requires the related Mortgagor to submit to arbitration to resolve any
dispute arising out of or relating in any way to the Mortgage Loan transaction.
This representation and warranty is a Deemed Material and Adverse
Representation;
(rrr) No Negative Amortization of Related First Lien Loan. With
respect to each Second Lien Loan, the related First Lien Loan does not permit
negative amortization. This representation and warranty is a Deemed Material and
Adverse Representation;
(sss) [Reserved].
(ttt) Simple Interest Mortgage Loans. With respect to each Mortgage
Loan that is a simple interest Mortgage Loan, the Mortgage Loan is identified on
the related Mortgage Loan Schedule as a simple interest Mortgage Loan, the
Mortgage Loan is required to be serviced as a simple interest Mortgage Loan
pursuant to the terms of the related Mortgage Note, and the servicing and
collection practices used in connection therewith have been in accordance with
legal, proper, prudent and customary practices for servicing simple interest
Mortgage Loans; and
(uuu) Option ARM Mortgage Loans. With respect to each Option ARM
Mortgage Loan, (a) the Seller (or a servicer on its behalf) either did not
provide different payment options after a "teaser period" or, if different
payment options were provided, applied each payment received under the Option
ARM Mortgage Loan correctly in accordance with Accepted Servicing Practices, (b)
unless otherwise set forth on the related Mortgage Loan Schedule, the Option ARM
Mortgage Loan has no negative amortization as of the related Closing Date and
(c) such Option ARM Mortgage Loans were serviced in accordance with Accepted
Servicing Practices and all payment histories are set forth on the related
Mortgage Loan Schedule that would be required to service the Option ARM Mortgage
Loans after the related Closing Date in accordance with Accepted Servicing
Practices.
Section 9.03 Remedies for Breach of Representations and Warranties.
It is understood and agreed that the representations and warranties
set forth in Sections 9.01 and 9.02 shall survive the sale of the Mortgage Loans
to the Purchaser and shall inure to the benefit of the Purchaser,
notwithstanding any restrictive or qualified endorsement on any Mortgage Note or
Assignment of Mortgage or the examination or failure to examine any Mortgage
File. Upon discovery by either the Seller or the Purchaser of a breach of any of
the foregoing representations and warranties, the party discovering such breach
shall give prompt written notice to the other.
Within 60 days of the earlier of either discovery by or notice to
the Seller of any such breach of a representation or warranty, which materially
and adversely affects the value of the Mortgage Loans or the interest of the
Purchaser therein (or which materially and adversely affects the value of the
applicable Mortgage Loan or the interest of the Purchaser therein in the case of
a representation and warranty relating to a particular Mortgage Loan), the
Seller shall use its best efforts promptly to cure such breach in all material
respects and, if such breach cannot be cured, the Seller shall, at the
Purchaser's option, exercised no later than sixty (60) days following such
discovery by or notice to the Seller of any such breach, repurchase such
Mortgage Loan at the Repurchase Price. Notwithstanding the above sentence, (i)
within sixty (60) days after the earlier of either discovery by, or written
notice to, the Seller of any breach of the representation and warranty set forth
in clause (bbb) of Section 9.02, the Seller shall repurchase such Mortgage Loan
at the Repurchase Price and (ii) any breach of a Deemed Material and Adverse
Representation shall automatically be deemed to materially and adversely affect
the value of the Mortgage Loans or the interest of the Purchaser therein. In the
event that a breach shall involve any representation or warranty set forth in
Section 9.01, and such breach cannot be cured within 60 days of the earlier of
either discovery by or notice to the Seller of such breach, all of the Mortgage
Loans affected by such breach shall, at the Purchaser's option, exercised no
later than sixty (60) days following such discovery by or notice to the Seller
of any such breach, be repurchased by the Seller at the Repurchase Price.
However, if the breach shall involve a representation or warranty set forth in
Section 9.02 (other than the representation and warranty set forth in clause
(bbb) of such Section or any Deemed Material Breach Representation) and the
Seller discovers or receives notice of any such breach within 120 days of the
related Closing Date, the Seller may, at the Purchaser's option and provided
that the Seller has a Qualified Substitute Mortgage Loan, rather than repurchase
the Mortgage Loan as provided above, remove such Mortgage Loan (a "Deleted
Mortgage Loan") and substitute in its place a Qualified Substitute Mortgage Loan
or Loans, provided that any such substitution shall be effected not later than
120 days after the related Closing Date. If the Seller has no Qualified
Substitute Mortgage Loan, it shall repurchase the deficient Mortgage Loan at the
Repurchase Price. Any repurchase of a Mortgage Loan or Loans pursuant to the
foregoing provisions of this Section 9.03 shall be accomplished by either (a) if
the Servicing Agreement has been entered into and is in effect, deposit in the
Custodial Account of the amount of the Repurchase Price for distribution to the
Purchaser on the next scheduled Remittance Date, after deducting therefrom any
amount received in respect of such repurchased Mortgage Loan or Loans and being
held in the Custodial Account for future distribution or (b) if the Servicing
Agreement has not been entered into or is no longer in effect, by direct
remittance of the Repurchase Price to the Purchaser or its designee in
accordance with the Purchaser's instructions.
At the time of repurchase or substitution, the Purchaser and the
Seller shall arrange for the reassignment of the Deleted Mortgage Loan to the
Seller and the delivery to the Seller of any documents held by the Custodian
relating to the Deleted Mortgage Loan. In the event of a repurchase or
substitution, the Seller shall, simultaneously with such reassignment, give
written notice to the Purchaser that such repurchase or substitution has taken
place, amend the Mortgage Loan Schedule to reflect the withdrawal of the Deleted
Mortgage Loan from this Agreement, and, in the case of substitution, identify a
Qualified Substitute Mortgage Loan and amend the related Mortgage Loan Schedule
to reflect the addition of such Qualified Substitute Mortgage Loan to this
Agreement. In connection with any such substitution, the Seller shall be deemed
to have made as to such Qualified Substitute Mortgage Loan the representations
and warranties set forth in this Agreement except that all such representations
and warranties set forth in this Agreement shall be deemed made as of the date
of such substitution. The Seller shall effect such substitution by delivering to
the Custodian or to such other party as the Purchaser may designate in writing
for such Qualified Substitute Mortgage Loan the documents required by Section
6.03 and the Custodial Agreement, with the Mortgage Note endorsed as required by
Section 6.03 and the Custodial Agreement. No substitution will be made in any
calendar month after the Determination Date for such month. The Seller shall
remit directly to the Purchaser, or its designee in accordance with the
Purchaser's instructions the Monthly Payment less the Servicing Fee due, if any,
on such Qualified Substitute Mortgage Loan or Loans in the month following the
date of such substitution. Monthly Payments due with respect to Qualified
Substitute Mortgage Loans in the month of substitution shall be retained by the
Seller. For the month of substitution, distributions to the Purchaser shall
include the Monthly Payment due on any Deleted Mortgage Loan in the month of
substitution, and the Seller shall thereafter be entitled to retain all amounts
subsequently received by the Seller in respect of such Deleted Mortgage Loan.
For any month in which the Seller substitutes a Qualified Substitute
Mortgage Loan for a Deleted Mortgage Loan, the Seller shall determine the amount
(if any) by which the aggregate principal balance of all Qualified Substitute
Mortgage Loans as of the date of substitution is less than the aggregate Stated
Principal Balance of all Deleted Mortgage Loans (after application of scheduled
principal payments due in the month of substitution). The amount of such
shortfall shall be distributed by the Seller directly to the Purchaser or its
designee in accordance with the Purchaser's instructions within two (2) Business
Days of such substitution. Accordingly, on the date of such substitution, the
Seller will deposit from its own funds into the Custodial Account an amount
equal to the amount of such shortfall at the Mortgage Loan Remittance Rate.
In addition to such repurchase or substitution obligation, the
Seller shall indemnify the Purchaser and its present and former directors,
officers, employees and agents and any Successor Servicer and its present and
former directors, officers, employees and agents and hold such parties harmless
against any losses, damages, penalties, fines, forfeitures, legal fees and
expenses and related costs, judgments, and other costs and expenses resulting
from any claim, demand, defense or assertion based on or grounded upon, or
resulting from, a breach of any representation or warranty contained in this
Agreement or any Reconstitution Agreement. It is understood and agreed that the
obligations of the Seller set forth in this Section 9.03 to cure, substitute for
or repurchase a defective Mortgage Loan and to indemnify the Purchaser and
Successor Servicer as provided in this Section 9.03 and in Section 14.01
constitute the sole remedies of the Purchaser respecting a breach of the
foregoing representations and warranties. For purposes of this paragraph
"Purchaser" shall mean the Person then acting as the Purchaser under this
Agreement and any and all Persons who previously were "Purchasers" under this
Agreement and "Successor Servicer" shall mean any Person designated as the
Successor Servicer pursuant to this Agreement and any and all Persons who
previously were "Successor Servicers" pursuant to this Agreement.
Any cause of action against the Seller relating to or arising out of
the breach of any representations and warranties made in Sections 9.01 and 9.02
shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the
Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the
Seller to cure such breach or repurchase such Mortgage Loan as specified above,
and (iii) demand upon the Seller by the Purchaser for compliance with this
Agreement.
Section 9.04 Repurchase of Mortgage Loans with Early Payment
Defaults. If the related Mortgagor is thirty (30) or more days delinquent with
respect to (i) the Mortgage Loan's first Monthly Payment after origination or
(ii) either of the Mortgage Loan's first two (2) Monthly Payments after the
related Closing Date, the Seller, at the Purchaser's option, shall repurchase
such Mortgage Loan from the Purchaser at a price equal to the Repurchase Price.
The Purchaser shall notify the Seller and request a repurchase within sixty (60)
days after the related Mortgagor's failure to make such payment and the Seller
shall repurchase such delinquent Mortgage Loan within thirty (30) days of such
request.
Section 9.05 Premium Recapture. With respect to any Mortgage Loan
that prepays in full during the first sixty (60) days following the related
Closing Date, the Seller shall pay the Purchaser, within twenty (20) days after
such prepayment in full or repurchase, an amount equal to the excess of the
Purchase Price Percentage for such Mortgage Loan over par, multiplied by the
outstanding principal balance of such Mortgage Loan as of the related Cut-off
Date over (ii) any Prepayment Penalties collected on such prepaid Mortgage
Loans.
ARTICLE X
CLOSING
-------
Section 10.01 Conditions to Closing.
The closing for the purchase and sale of each Mortgage Loan Package
shall take place on the related Closing Date. At the Purchaser's option, each
Closing shall be either: by telephone, confirmed by letter or wire as the
parties shall agree, or conducted in person, at such place as the parties shall
agree.
The closing for the Mortgage Loans to be purchased on each Closing
Date shall be subject to each of the following conditions:
i. at least two Business Days prior to the related Closing Date,
the Seller shall deliver to the Purchaser a magnetic diskette,
or transmit by modem or email, a listing on a loan-level basis
of the necessary information to compute the Purchase Price of
the Mortgage Loans delivered on such Closing Date (including
accrued interest), and prepare a Mortgage Loan Schedule;
ii. all of the representations and warranties of the Seller under
this Agreement and under the Servicing Agreement shall be true
and correct as of the related Closing Date and no event shall
have occurred which, with notice or the passage of time, would
constitute a default under this Agreement or an Event of
Default under the Servicing Agreement;
iii. the Purchaser shall have received, or the Purchaser's
attorneys shall have received in escrow, all closing documents
as specified in Article XI of this Agreement, in such forms as
are agreed upon and acceptable to the Purchaser, duly executed
by all signatories other than the Purchaser as required
pursuant to the terms hereof;
iv. the Seller shall have delivered and released to the Custodian
all documents required pursuant to the Custodial Agreement;
and
v. all other terms and conditions of this Agreement and the
related Purchase Price and Terms Agreement shall have been
complied with.
Subject to the foregoing conditions, the Purchaser shall pay to the
Seller on the related Closing Date the Purchase Price, plus accrued interest
pursuant to Article IV of this Agreement, by wire transfer of immediately
available funds to the account designated by the Seller.
ARTICLE XI
CLOSING DOCUMENTS
-----------------
Section 11.01 Required Closing Documents.
The Closing Documents for the Mortgage Loans to be purchased on each
Closing Date shall consist of fully executed originals of the following
documents:
(1) this Agreement (to be executed and delivered only
for the initial Closing Date);
(2) the Servicing Agreement, dated as of the initial
Cut-off Date (to be executed and delivered only for the
initial Closing Date);
(3) with respect to the initial Closing Date, the
Custodial Agreement, dated as of the initial Cut-off Date;
(4) the related Mortgage Loan Schedule (one copy to be
attached to the Custodian's counterpart of the Custodial
Agreement in connection with the initial Closing Date, and one
copy to be attached to the related Assignment and Conveyance
as the Mortgage Loan Schedule thereto);
(5) a Custodian's Certification, as required under the
Custodial Agreement, in the form of Exhibit 2 to the Custodial
Agreement;
(6) a Custodial Account Letter Agreement or a Custodial
Account Certification, as applicable, as required under the
Servicing Agreement;
(7) an Escrow Letter Agreement or an Escrow Account
Certification, as applicable, as required under the Servicing
Agreement;
(8) with respect to the initial Closing Date, an
Officer's Certificate, in the form of Exhibit C hereto with
respect to each of the Seller, including all attachments
thereto; with respect to subsequent Closing Dates, an
Officer's Certificate upon request of the Purchaser;
(9) with respect to the initial Closing Date, an Opinion
of Counsel of the Seller (who may be an employee of the
Seller), in the form of Exhibit D hereto ("Opinion of Counsel
of the Seller"); with respect to subsequent Closing Dates, an
Opinion of Counsel of the Seller upon request of the
Purchaser;
(10) with respect to the initial Closing Date, an
Opinion of Counsel of the Custodian (who may be an employee of
the Custodian), in the form of an exhibit to the Custodial
Agreement(s);
(11) a Security Release Certification, in the form of
Exhibit E or F, as applicable, hereto executed by any person,
as requested by the Purchaser, if any of the Mortgage Loans
have at any time been subject to any security interest, pledge
or hypothecation for the benefit of such person;
(12) a certificate or other evidence of merger or change
of name, signed or stamped by the applicable regulatory
authority, if any of the Mortgage Loans were acquired by the
Seller by merger or acquired or originated by the Seller while
conducting business under a name other than its present name,
if applicable;
(13) with respect to the initial Closing Date, the
Underwriting Guidelines to be attached hereto as Exhibit G and
with respect to each subsequent Closing Date, the Underwriting
Guidelines to be attached to the related Assignment and
Conveyance;
(14) Assignment and Conveyance Agreement in the form of
Exhibit H hereto, and all exhibits thereto; and
(15) a MERS Report reflecting the Purchaser as Investor,
the Custodian as custodian and no Person as Interim Funder for
each MERS Designated Mortgage Loan.
The Seller shall bear the risk of loss of the closing documents
until such time as they are received by the Purchaser or its attorneys.
ARTICLE XII
COSTS
-----
Section 12.01 Costs.
The Purchaser shall pay any commissions due its salesmen and the
legal fees and expenses of its attorneys and custodial fees. All other costs and
expenses incurred in connection with the transfer and delivery of the Mortgage
Loans and the Servicing Rights including recording fees, fees for title policy
endorsements and continuations, fees for recording Assignments of Mortgage for a
single recordation with respect to each Assignment of Mortgage, and the Seller's
attorney's fees, shall be paid by the Seller.
ARTICLE XIII
COOPERATION OF SELLER WITH A RECONSTITUTION
-------------------------------------------
Section 13.01 Reconstitution of Mortgage Loans.
The Seller and the Purchaser agree that with respect to some or all
of the Mortgage Loans, after the related Closing Date, on one or more dates
(each, a "Reconstitution Date") at the Purchaser's sole option, the Purchaser
may effect a sale (each, a "Reconstitution") of some or all of the Mortgage
Loans then subject to this Agreement, without recourse, to:
(i) ▇▇▇▇▇▇ ▇▇▇ under its Cash Purchase Program or MBS Program
(Special Servicing Option) (each, a "▇▇▇▇▇▇ Mae Transfer"); or
(ii) ▇▇▇▇▇▇▇ Mac (the "▇▇▇▇▇▇▇ Mac Transfer"); or
(iii) one or more third party purchasers in one or more Whole Loan
Transfers; or
(iv) one or more trusts or other entities to be formed as part of
one or more Securitization Transactions.
The Seller agrees to execute in connection with any Agency Transfer,
any and all pool purchase contracts, and/or agreements reasonably acceptable to
the Seller among the Purchaser, the Seller, ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac (as the
case may be) and any servicer in connection with a Whole Loan Transfer, a
seller's warranties and servicing agreement or a participation and servicing
agreement in form and substance reasonably acceptable to the parties, and in
connection with a Securitization Transaction, a pooling and servicing agreement
in form and substance reasonably acceptable to the parties or an Assignment and
Recognition Agreement substantially in the form attached hereto as Exhibit I
(collectively, the agreements referred to herein are designated, the
"Reconstitution Agreements"), together with an opinion of counsel with respect
to such Reconstitution Agreements.
With respect to each Whole Loan Transfer and each Securitization
Transaction entered into by the Purchaser, the Seller agrees (1) to cooperate
fully with the Purchaser and any prospective purchaser with respect to all
reasonable requests and due diligence procedures; (2) to execute, deliver and
perform all Reconstitution Agreements required by the Purchaser; and (3) (3) to
restate the representations and warranties set forth in Section 9.01 of this
Agreement and the Servicing Agreement as of the Reconstitution Date, or make
such representations or warranties as may be required by any Rating Agency in
connection with such Reconstitution. The Seller shall provide to such servicer
or issuer, as the case may be, and any other participants or purchasers in such
Reconstitution: (i) any and all information and appropriate verification of
information which may be reasonably available to the Seller or its Affiliates,
whether through letters of its auditors and counsel or otherwise, as the
Purchaser or any such other participant shall request; (ii) such additional
representations, warranties, covenants, opinions of counsel, letters from
auditors, and certificates of public officials or officers of the Seller as are
reasonably believed necessary by the Purchaser or any such other participant;
and (iii) to execute, deliver and satisfy all conditions set forth in any
indemnity agreement required by the Purchaser or any such participant,
including, without limitation, an Indemnification and Contribution Agreement in
substantially the form attached hereto as Exhibit B. Moreover, the Seller agrees
to cooperate with all reasonable requests made by the Purchaser to effect such
Reconstitution Agreements. The Seller shall indemnify the Purchaser, each
Affiliate of the Purchaser participating in the Reconstitution and each Person
who controls the Purchaser or such Affiliate and their respective present and
former directors, officers, employees and agents, and hold each of them harmless
from and against any losses, damages, penalties, fines, forfeitures, legal fees
and expenses and related costs, judgments, and any other costs, fees and
expenses that each of them may sustain arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in the
information provided by or on behalf of the Seller regarding the Seller, the
Seller's or other originator's static pool information, the Mortgage Loans or
the Underwriting Guidelines set forth in any offering document prepared in
connection with any Reconstitution. For purposes of the previous sentence,
"Purchaser" shall mean the Person then acting as the Purchaser under this
Agreement and any and all Persons who previously were "Purchasers" under this
Agreement.
In the event the Purchaser has elected to have the Seller hold
record title to the Mortgages, prior to the Reconstitution Date, the Seller
shall prepare an assignment of mortgage in blank or to the prospective purchaser
or trustee, as applicable, from the Seller, acceptable to the prospective
purchaser or trustee, as applicable, for each Mortgage Loan that is part of the
Reconstitution and shall pay all preparation and recording costs associated
therewith. In connection with the Reconstitution, the Seller shall execute each
assignment of mortgage, track such Assignments of Mortgage to ensure they have
been recorded and deliver them as required by the prospective purchaser or
trustee, as applicable, upon the Seller's receipt thereof. Additionally, the
Seller shall prepare and execute, at the direction of the Purchaser, any note
endorsement in connection with any and all seller/servicer agreements.
All Mortgage Loans not sold or transferred pursuant to a
Reconstitution shall remain subject to this Agreement and, if the Servicing
Agreement shall remain in effect with respect to the related Mortgage Loan
Package, shall continue to be serviced in accordance with the terms of this
Agreement and the Servicing Agreement and with respect thereto this Agreement
shall remain in full force and effect.
ARTICLE XIV
THE SELLER
----------
Section 14.01 Additional Indemnification by the Seller; Third Party
Claims.
(a) The Seller shall indemnify the Purchaser and its present and
former directors, officers, employees and agents and any Successor Servicer and
its present and former directors, officers, employees and agents, and hold such
parties harmless against any and all claims, losses, damages, penalties, fines,
forfeitures, legal fees and expenses (including legal fees and expenses incurred
in connection with the enforcement of the Seller's indemnification obligation
under this Section 14.01) and related costs, judgments, and any other costs,
fees and expenses that such parties may sustain in any way related to the
failure of the Seller to perform its duties in strict compliance with the terms
of this Agreement or any Reconstitution Agreement entered into pursuant to
Article XIII or any breach of any of Seller's representation, warranties and
covenants set forth in this Agreement. For purposes of this paragraph
"Purchaser" shall mean the Person then acting as the Purchaser under this
Agreement and any and all Persons who previously were "Purchasers" under this
Agreement and "Successor Servicer" shall mean any Person designated as the
Successor Servicer pursuant to this Agreement and any and all Persons who
previously were "Successor Servicers" pursuant to this Agreement.
(b) Promptly after receipt by an indemnified party under this
Section 14.01 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 14.01, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve the indemnifying party from any liability which it may have to any
indemnified party under this Section 14.01, except to the extent that it has
been prejudiced in any material respect, or from any liability which it may
have, otherwise than under this Section 14.01. In case any such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party; provided that if the defendants in any
such action include both the indemnified party and the indemnifying party and
the indemnified party or parties shall have reasonably concluded that there may
be legal defenses available to it or them and/or other indemnified parties which
are different from or additional to those available to the indemnifying party,
the indemnified party or parties shall have the right to select separate counsel
to assert such legal defenses and to otherwise participate in the defense of
such action on behalf of such indemnified party or parties. Upon receipt of
notice from the indemnifying party to such indemnified party of its election so
to assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified party for
expenses incurred by the indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (together with one local counsel, if applicable)), (ii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnifying party
has authorized in writing the employment of counsel for the indemnified party at
the expense of the indemnifying party; and except that, if clause (i) or (iii)
is applicable, such liability shall be only in respect of the counsel referred
to in such clause (i) or (iii).
Section 14.02 Merger or Consolidation of the Seller.
The Seller will keep in full effect its existence, rights and
franchises as a corporation under the laws of the state of its incorporation
except as permitted herein, and will 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 duties under this Agreement.
Any Person into which the Seller may be merged or consolidated, or
any corporation resulting from any merger, conversion or consolidation to which
the Seller shall be a party, or any Person succeeding to the business of the
Seller, shall be the successor of the Seller 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 shall have a net worth of at least $25,000,000.
ARTICLE XV
MISCELLANEOUS PROVISIONS
------------------------
Section 15.01 Financial Statements.
The Seller understands that in connection with the Purchaser's
marketing of the Mortgage Loans, the Purchaser shall make available to
prospective purchasers audited financial statements of the Seller for the most
recently completed three fiscal years respecting which such statements are
available, as well as a Consolidated Statement of Condition of the Seller at the
end of the last two fiscal years covered by such Consolidated Statement of
Operations. The Seller shall also make available any comparable interim
statements to the extent any such statements have been prepared by the Seller
(and are available upon request to members or stockholders of the Seller or the
public at large). The Seller, if it has not already done so, agrees to furnish
promptly to the Purchaser copies of the statements specified above; provided,
however, any statements referenced above shall be only required to be provided
by the Seller to the Purchaser if the Seller is no longer a public company whose
financial statements are readily available to the Purchaser without the Seller's
assistance. The Seller shall also make available information on its servicing
performance with respect to loans serviced for others, including delinquency
ratios.
The Seller also agrees to allow reasonable access to a knowledgeable
financial or accounting officer for the purpose of answering questions asked by
any prospective purchaser regarding recent developments affecting the Seller or
the financial statements of the Seller.
Section 15.02 Mandatory Delivery.
The sale and delivery on the related Closing Date of the Mortgage
Loans described on the related Mortgage Loan Schedule is mandatory from and
after the date of the execution of the related Purchase Price and Terms
Agreement, it being specifically understood and agreed that each Mortgage Loan
is unique and identifiable on the date hereof and that an award of money damages
would be insufficient to compensate the Purchaser for the losses and damages
incurred by the Purchaser (including damages to prospective purchasers of the
Mortgage Loans) in the event of the Seller's failure to deliver (i) each of the
related Mortgage Loans or (ii) one or more Qualified Substitute Mortgage Loans
or (iii) one or more Mortgage Loans otherwise acceptable to the Purchaser on or
before the related Closing Date.
Section 15.03 Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed, by registered or
certified mail, return receipt requested, or, if by other means, when received
by the other party at the address as follows:
i. if to the Seller:
IndyMac Bank, F.S.B.
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Attention: Secondary Marketing - Transaction Management
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
ii. if to the Purchaser:
Barclays Bank PLC
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Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
E mail: ▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
With a copy to:
Barclays Bank PLC, as administrator
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Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
E mail: ▇▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
or such other address as may hereafter be furnished to the other party by like
notice. Any such demand, notice or communication hereunder shall be deemed to
have been received on the date delivered to or received at the premises of the
addressee (as evidenced, in the case of registered or certified mail, by the
date noted on the return receipt).
Section 15.04 Severability Clause.
Any part, provision representation or warranty of this Agreement
which is prohibited or unenforceable or is held to be void or unenforceable in
any jurisdiction shall be ineffective, as to such jurisdiction, to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof. If the invalidity of any
part, provision, representation or warranty of this Agreement shall deprive any
party of the economic benefit intended to be conferred by this Agreement, the
parties shall negotiate, in good-faith, to develop a structure the economic
effect of which is nearly as possible the same as the economic effect of this
Agreement without regard to such invalidity.
Section 15.05 Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
Section 15.06 [Reserved].
Section 15.07 Intention of the Parties.
It is the intention of the parties that the Purchaser is purchasing,
and the Seller is selling the Mortgage Loans and not a debt instrument of the
Seller or another security. Accordingly, the parties hereto each intend to treat
the transaction for Federal income tax purposes as a sale by the Seller, and a
purchase by the Purchaser, of the Mortgage Loans. Moreover, the arrangement
under which the Mortgage Loans are held shall be consistent with classification
of such arrangement as a grantor trust in the event it is not found to represent
direct ownership of the Mortgage Loans. The Purchaser shall have the right to
review the Mortgage Loans and the related Mortgage Loan Files to determine the
characteristics of the Mortgage Loans which shall affect the Federal income tax
consequences of owning the Mortgage Loans and the Seller shall cooperate with
all reasonable requests made by the Purchaser in the course of such review. The
Seller and the Purchaser intend to reflect the transfer of the Mortgage Loans as
a sale on the books and records of the Seller and as a purchase on the books and
records of the Purchaser and have determined that the disposition of the
Mortgage Loans pursuant to this Agreement will be afforded sale treatment for
tax and accounting purposes.
Section 15.08 Successors and Assigns; Assignment of Purchase
Agreement.
This Agreement shall bind and inure to the benefit of and be
enforceable by the Seller and the Purchaser and the respective permitted
successors and assigns of the Seller and the successors and assigns of the
Purchaser. This Agreement shall not be assigned, pledged or hypothecated by the
Seller to a third party without the prior written consent of the Purchaser,
which consent may be withheld by the Purchaser in its sole discretion. This
Agreement may be assigned, pledged or hypothecated by the Purchaser in whole or
in part, and with respect to one or more of the Mortgage Loans, without the
consent of the Seller. There shall be no limitation on the number of assignments
or transfers allowable by the Purchaser with respect to the Mortgage Loans and
this Agreement except that the Purchaser may not assign Mortgage Loans in any
Mortgage Loan Package to more than four (4) assignees. In the event the
Purchaser assigns this Agreement, and the assignee assumes any of the
Purchaser's obligations hereunder, the Seller acknowledges and agrees to look
solely to such assignee, and not to the Purchaser, for performance of the
obligations so assumed and the Purchaser shall be relieved from any liability to
the Seller with respect thereto.
Section 15.09 Waivers.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced.
Section 15.10 Exhibits.
The exhibits to this Agreement are hereby incorporated and made a
part hereof and are an integral part of this Agreement.
Section 15.11 General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Agreement have the meanings assigned
to them in this Agreement and include the plural as well as the singular, and
the use of any gender herein shall be deemed to include the other gender;
(b) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles;
(c) references herein to "Articles," "Sections," "Subsections,"
"Paragraphs," and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other subdivisions of
this Agreement;
(d) reference to a Subsection without further reference to a Section
is a reference to such Subsection as contained in the same Section in which the
reference appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(e) the words "herein," "hereof," "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
provision; and
(f) the term "include" or "including" shall mean without limitation
by reason of enumeration.
Section 15.12 Reproduction of Documents.
This Agreement and all documents relating thereto, including,
without limitation, (a) consents, waivers and modifications which may hereafter
be executed, (b) documents received by any party at the closing, and (c)
financial statements, certificates and other information previously or hereafter
furnished, may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties agree
that any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding, whether or not the original
is in existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
Section 15.13 Further Agreements.
The Seller and the Purchaser each agree to execute and deliver to
the other such reasonable and appropriate additional documents, instruments or
agreements as may be necessary or appropriate to effectuate the purposes of this
Agreement.
Section 15.14 [Reserved].
Section 15.15 No Solicitation.
From and after the related Closing Date, the Seller agrees that it
will not take any action or permit or cause any action to be taken by any of its
agents or Affiliates, or by any independent contractors on the Seller's behalf,
to personally, by telephone or mail (via electronic means or otherwise), solicit
a Mortgagor under any Mortgage Loan for the purpose of refinancing a Mortgage
Loan, in whole or in part, without the prior written consent of the Purchaser.
Notwithstanding the foregoing, it is understood and agreed that the Seller, or
any of its respective Affiliates:
(i) may advertise its availability for handling refinancings of
mortgages in its portfolio, including the promotion of terms
it has available for such refinancings, through the sending of
letters or promotional material, so long as it does not
specifically target Mortgagors and so long as such promotional
material either is sent to the mortgagors for all of the
mortgages in the servicing portfolio of the Seller and any of
its Affiliates (those it owns as well as those serviced for
others); and
(ii) may provide pay-off information and otherwise cooperate with
individual mortgagors who contact it about prepaying their
mortgages by advising them of refinancing terms and
streamlined origination arrangements that are available.
Promotions undertaken by the Seller or by any Affiliate of the
Seller which are directed to the general public at large (including, without
limitation, mass mailing based on commercially acquired mailing lists,
newspaper, radio and television advertisements), shall not constitute
solicitation under this Section 15.15.
Section 15.16 Waiver of Trial by Jury.
THE SELLER AND THE PURCHASER EACH KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 15.17 Governing Law Jurisdiction; Consent to Service of
Process.
THIS AGREEMENT SHALL BE DEEMED IN EFFECT WHEN A FULLY EXECUTED
COUNTERPART THEREOF IS RECEIVED BY THE PURCHASER IN THE STATE OF NEW YORK AND
SHALL BE DEEMED TO HAVE BEEN MADE IN THE STATE OF NEW YORK. THIS AGREEMENT SHALL
BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT
TO ITS CHOICE OF LAW RULES AND PRINCIPLES. EACH OF THE PURCHASER AND THE SELLER
IRREVOCABLY (I) SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE
STATE OF NEW YORK AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE
SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT; (II) WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW,
THE DEFENSE OF AN INCONVENIENT FORUM IN ANY ACTION OR PROCEEDING IN ANY SUCH
COURT; (III) AGREES THAT A FINAL JUDGMENT IN ANY ACTION OR PROCEEDING IN ANY
SUCH COURT SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN ANY OTHER JURISDICTION BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW; AND (IV) CONSENTS
TO SERVICE OF PROCESS UPON IT BY MAILING A COPY THEREOF BY CERTIFIED MAIL
ADDRESSED TO IT AS PROVIDED FOR NOTICES HEREUNDER.
Section 15.18 No Brokers.
The Seller has not dealt with any broker, investment banker, agent
or other person that may be entitled to any commission or compensation in
connection with the sale of the Mortgage Loans
Section 15.19 Reasonable Purchase Price.
The consideration received by the Seller upon the sale of the
Mortgage Loans under this Agreement constitutes fair consideration and
reasonably equivalent value for the Mortgage Loans;
ARTICLE XVI
COMPLIANCE WITH REGULATION AB
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Section 16.01 Intent of the Parties; Reasonableness.
The Purchaser and the Seller acknowledge and agree that the purpose
of Section 16 of this Agreement is to facilitate compliance by the Purchaser and
any Depositor with the provisions of Regulation AB and related rules and
regulations of the Commission. Although Regulation AB is applicable by its terms
only to offerings of asset-backed securities that are registered under the
Securities Act, the Seller acknowledges that investors in privately offered
securities may require that the Purchaser or any Depositor provide comparable
disclosure in unregistered offerings. References in this Agreement to compliance
with Regulation AB include provision of comparable disclosure in private
offerings.
Neither the Purchaser nor any Depositor shall exercise its right to
request delivery of information or other performance under these provisions
other than in good faith, or for purposes other than compliance with the
Securities Act, the Exchange Act and the rules and regulations of the Commission
thereunder (or the provision in a private offering of disclosure comparable to
that required under the Securities Act). The Seller acknowledges that
interpretations of the requirements of Regulation AB may change over time,
whether due to interpretive guidance provided by the Commission or its staff,
consensus among participants in the asset-backed securities markets, advice of
counsel, or otherwise, and agrees to comply with reasonable requests made by the
Purchaser or any Depositor in good faith for delivery of information under these
provisions on the basis of evolving interpretations of Regulation AB. In
connection with any Securitization Transaction, the Seller shall cooperate fully
with the Purchaser to deliver to the Purchaser (including any of its assignees
or designees) and any Depositor, any and all statements, reports,
certifications, records and any other information reasonably necessary in the
good faith determination of the Purchaser or any Depositor to permit the
Purchaser or such Depositor to comply with the provisions of Regulation AB,
together with such disclosures relating to the Seller, any Third-Party
Originator and the Mortgage Loans, or the servicing of the Mortgage Loans
provided that the Seller is servicing the Mortgage Loans of the related
Securitization, reasonably believed by the Purchaser or any Depositor to be
necessary in order to effect such compliance.
The Purchaser (including any of its assignees or designees) shall
cooperate with the Seller by providing timely notice of requests for information
under these provisions and by reasonably limiting such requests to information
required, in the Purchaser's reasonable judgment, to comply with Regulation AB.
Section 16.02 Additional Representations and Warranties of the
Seller.
(a) The Seller shall be deemed to represent to the Purchaser and to
any Depositor, as of the date on which information is first provided to the
Purchaser or any Depositor under Section 16.03 that, except as disclosed in
writing to the Purchaser or such Depositor prior to such date: (i) there are no
material legal or governmental proceedings pending (or known to be contemplated)
against the Seller or any Third-Party Originator; and (ii) there are no
affiliations, relationships or transactions relating to the Seller or any
Third-Party Originator with respect to any Securitization Transaction and any
party thereto identified by the related Depositor of a type described in Item
1119 of Regulation AB.
(b) If so requested by the Purchaser or any Depositor on any date
following the date on which information is first provided to the Purchaser or
any Depositor under Section 16.03, the Seller shall, within five Business Days
following such request, confirm in writing the accuracy of the representations
and warranties set forth in paragraph (a) of this Section or, if any such
representation and warranty is not accurate as of the date of such request,
provide reasonably adequate disclosure of the pertinent facts, in writing, to
the requesting party.
Section 16.03 Information to Be Provided by the Seller.
In connection with any Securitization Transaction the Seller shall
(i) within five Business Days but in no event later than ten (10) Business Days
following written request by the Purchaser or any Depositor, provide to the
Purchaser and such Depositor (or, as applicable, cause each Third-Party
Originator to provide), in writing and in form and substance reasonably
satisfactory to the Purchaser and such Depositor, the information and materials
specified in paragraphs (a) and (b) of this Section, and (ii) as promptly as
practicable following notice to or discovery by the Seller, provide to the
Purchaser and any Depositor (in writing and in form and substance reasonably
satisfactory to the Purchaser and such Depositor) the information specified in
paragraph (d) of this Section.
(a) If so requested in writing by the Purchaser or any Depositor,
the Seller shall provide such information regarding (i) the Seller, as
originator of the Mortgage Loans (including as an acquirer of Mortgage Loans
from a Qualified Correspondent), or (ii) each Third-Party Originator, as is
reasonably requested for the purpose of compliance with Items 1103(a)(1), 1105,
1110, 1117 and 1119 of Regulation AB. Such information shall include, at a
minimum so long as required by Regulation AB:
(A) the originator's form of organization;
(B) a description of the originator's origination program and
how long the originator has been engaged in originating residential
mortgage loans, which description shall include a discussion of the
originator's experience in originating mortgage loans of a similar
type as the Mortgage Loans; information regarding the size and
composition of the originator's origination portfolio; and
information that may be material, in the good faith judgment of the
Purchaser or any Depositor, to an analysis of the performance of the
Mortgage Loans, including the originators' credit-granting or
underwriting criteria for mortgage loans of similar type(s) as the
Mortgage Loans and such other information as the Purchaser or any
Depositor may reasonably request for the purpose of compliance with
Item 1110(b)(2) of Regulation AB;
(C) a description of any legal or governmental proceedings
pending (or known to be contemplated) against the Seller and each
Third-Party Originator that would be material to securityholders;
and
(D) a description of any affiliation or relationship between
the Seller, each Third-Party Originator and any of the following
parties to a Securitization Transaction, as such parties are
identified to the Seller by the Purchaser or any Depositor in
writing in advance of such Securitization Transaction:
(1) the sponsor;
(2) the depositor;
(3) the issuing entity;
(4) any servicer;
(5) any trustee;
(6) any originator;
(7) any significant obligor;
(8) any enhancement or support provider; and
(9) any other material transaction party.
(b) If so requested in writing by the Purchaser or any Depositor,
the Seller shall provide (or, as applicable, cause each Third-Party Originator
to provide) Static Pool Information with respect to the mortgage loans (of a
similar type as the Mortgage Loans, as reasonably identified by the Purchaser as
provided below) originated by (i) the Seller, if the Seller is an originator of
Mortgage Loans (including as an acquirer of Mortgage Loans from a Qualified
Correspondent), and/or (ii) each Third-Party Originator. Such Static Pool
Information shall be prepared by the Seller (or Third-Party Originator) on the
basis of its reasonable, good faith interpretation of the requirements of Item
1105(a)(1)-(3) of Regulation AB. To the extent that there is reasonably
available to the Seller (or Third-Party Originator) Static Pool Information with
respect to more than one mortgage loan type, the Purchaser or any Depositor
shall be entitled to specify whether some or all of such information shall be
provided pursuant to this paragraph. The content of such Static Pool Information
may be in the form customarily provided by the Seller, and need not be
customized for the Purchaser or any Depositor. Such Static Pool Information for
each vintage origination year or prior securitized pool, as applicable, shall be
presented in increments no less frequently than quarterly over the life of the
mortgage loans included in the vintage origination year or prior securitized
pool. The most recent periodic increment must be as of a date no later than 135
days prior to the date of the prospectus or other offering document in which the
Static Pool Information is to be included or incorporated by reference. The
Static Pool Information shall be provided in an electronic format that provides
a permanent record of the information provided, such as a portable document
format (pdf) file, or other such electronic format reasonably required by the
Purchaser or the Depositor, as applicable.
Promptly following notice or discovery of a material error in Static
Pool Information provided pursuant to the immediately preceding paragraph
(including an omission to include therein information required to be provided
pursuant to such paragraph), the Seller shall provide corrected Static Pool
Information to the Purchaser or any Depositor, as applicable, in the same format
in which Static Pool Information was previously provided to such party by the
Seller, subject to mutually agreed time limits.
If so requested in writing by the Purchaser or any Depositor, the
Seller shall provide (or, as applicable, cause each Third-Party Originator to
provide), at the expense of the requesting party (to the extent of any
additional incremental expense associated with delivery pursuant to this
Agreement), such agreed-upon procedures letters of certified public accountants
reasonably acceptable to the Purchaser or Depositor, as applicable, pertaining
to Static Pool Information relating to prior securitized pools for
securitizations closed on or after January 1, 2006 or, in the case of Static
Pool Information with respect to the Seller's or Third-Party Originator's
originations or purchases, to calendar months commencing January 1, 2006, as the
Purchaser or such Depositor shall reasonably request. Such letters shall be
addressed to and be for the benefit of such parties as the Purchaser or such
Depositor shall designate, which may include, by way of example, any Sponsor,
any Depositor and any broker dealer acting as underwriter, placement agent or
initial purchaser with respect to a Securitization Transaction. Any such
statement or letter may take the form of a standard, generally applicable
document accompanied by a reliance letter authorizing reliance by the addressees
designated by the Purchaser or such Depositor.
(c) [Reserved].
(d) If so requested in writing by the Purchaser or any Depositor for
the purpose of satisfying its reporting obligation under the Exchange Act with
respect to any class of asset-backed securities, the Seller shall (or shall
cause each Third-Party Originator to) (i) notify the Purchaser and any Depositor
in writing of (A) any material litigation or governmental proceedings pending
against the Seller or any Third-Party Originator and (B) any affiliations or
relationships that develop following the closing date of a Securitization
Transaction between the Seller or any Third-Party Originator and any of the
parties specified in clause (D) of paragraph (a) of this Section (and any other
parties identified in writing by the requesting party) with respect to such
Securitization Transaction, and (ii) provide to the Purchaser and any Depositor
a description of such proceedings, affiliations or relationships.
Section 16.04 Indemnification; Remedies.
(a) The Seller shall indemnify the Purchaser, each affiliate of the
Purchaser, the Depositor and each of the following parties participating in a
Securitization Transaction: each sponsor and each Person responsible for the
preparation, execution or filing of any report required to be filed with the
Commission with respect to such Securitization Transaction, or for execution of
a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange
Act with respect to such Securitization Transaction; each broker dealer acting
as underwriter, placement agent or initial purchaser, each Person who controls
any of such parties or the Depositor (within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act); and the respective present
and former directors, officers, employees and agents of each of the foregoing
and of the Depositor, and shall hold each of them harmless from and against any
losses, damages, penalties, fines, forfeitures, legal fees and expenses and
related costs, judgments, and any other costs, fees and expenses that any of
them may sustain arising out of or based upon:
(i)(A) any untrue statement of a material fact contained or alleged
to be contained in any information, report, certification, accountants'
letter or other material provided in written or electronic form under this
Section 16 by or on behalf of the Seller, or provided under this Section
16 by or on behalf of any Third-Party Originator (collectively, the
"Seller Information"), or (B) the omission or alleged omission to state in
the Seller Information a material fact required to be stated in the Seller
Information or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, by way of clarification, that clause (B) of this paragraph shall
be construed solely by reference to the Seller Information and not to any
other information communicated in connection with a sale or purchase of
securities, without regard to whether the Seller Information or any
portion thereof is presented together with or separately from such other
information;
(ii) any failure by the Seller or any Third-Party Originator to
deliver any information, report, certification, accountants' letter or
other material when and as required under this Section 16; or
(iii) any breach by the Seller of a representation or warranty set
forth in Section 16.02(a) or in a writing furnished pursuant to Section
16.02(b) and made as of a date prior to the closing date of the related
Securitization Transaction, to the extent that such breach is not cured by
such closing date, or any breach by the Seller of a representation or
warranty in a writing furnished pursuant to Section 16.02(b) to the extent
made as of a date subsequent to such closing date.
In the case of any failure of performance described in clause
(a)(iii) of this Section, the Seller shall promptly reimburse the Purchaser, any
Depositor, as applicable, and each Person responsible for the preparation,
execution or filing of any report required to be filed with the Commission with
respect to such Securitization Transaction, or for execution of a certification
pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect
to such Securitization Transaction, for all costs reasonably incurred by each
such party in order to obtain the information, report, certification,
accountants' letter or other material not delivered as required by the Seller or
any Third-Party Originator.
(b) Any failure by the Seller or any Third-Party Originator to
deliver any information, report, certification, accountants' letter or other
material when and as required under this Section 16, or any breach by the Seller
of a representation or warranty set forth in Section 16.02(a) or in a writing
furnished pursuant to Section 16.02(b) and made as of a date prior to the
closing date of the related Securitization Transaction, to the extent that such
breach is not cured by such closing date, or any breach by the Seller of a
representation or warranty in a writing furnished pursuant to Section 16.02(b)
to the extent made as of a date subsequent to such closing date, shall
immediately and automatically, without notice or grace period, constitute an
Event of Default with respect to the Seller under this Agreement and any
applicable Reconstitution Agreement, and shall entitle the Purchaser or
Depositor, as applicable, in its sole discretion to terminate the rights and
obligations of the Seller as servicer under the Servicing Agreement and/or any
applicable Reconstitution Agreement without payment (notwithstanding anything in
this Agreement or any applicable Reconstitution Agreement to the contrary) of
any compensation to the Seller, as servicer; provided that to the extent that
any provision of this Agreement and/or any applicable Reconstitution Agreement
expressly provides for the survival of certain rights or obligations following
termination of the Seller as servicer, such provision shall be given effect.
[Signature Page Follows]
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the date first above written.
BARCLAYS BANK PLC
(Purchaser)
By: /s/ ▇▇▇ ▇▇▇
----------------------------------
Name: ▇▇▇ ▇▇▇
Title: Managing Director
INDYMAC BANK, F.S.B.
(Seller)
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
EXHIBIT A
CONTENTS OF EACH MORTGAGE FILE
------------------------------
With respect to each Mortgage Loan, the Mortgage File shall include
each of the following items, which shall be available for inspection by the
Purchaser and any prospective Purchaser, and which shall be delivered to the
Custodian, or to such other Person as the Purchaser shall designate in writing,
pursuant to Article VI of the Amended and Restated Mortgage Loan Purchase
Agreement to which this Exhibit is attached (the "Agreement"):
(a) the original Mortgage Note bearing all intervening endorsements,
endorsed "Pay to the order of _________, without recourse" and signed in the
name of the last endorsee (the "Last Endorsee") by an authorized officer. To the
extent that there is no room on the face of the Mortgage Notes for endorsements,
the endorsement may be contained on an allonge, if state law so allows and the
Custodian is so advised by the Seller that state law so allows. If the Mortgage
Loan was acquired by the Seller in a merger, the endorsement must be by "[Last
Endorsee], successor by merger to [name of predecessor]". If the Mortgage Loan
was acquired or originated by the Last Endorsee while doing business under
another name, the endorsement must be by "[Last Endorsee], formerly known as
[previous name]";
(b) the original of any guarantee executed in connection with the
Mortgage Note;
(c) with respect to Mortgage Loans that are not Co-op Loans, the
original Mortgage with evidence of recording thereon. With respect to any Co-op
Loan, an original or copy of the Security Agreement. If in connection with any
Mortgage Loan, the Seller cannot deliver or cause to be delivered the original
Mortgage with evidence of recording thereon on or prior to the Closing Date
because of a delay caused by the public recording office where such Mortgage has
been delivered for recordation or because such Mortgage has been lost or because
such public recording office retains the original recorded Mortgage, the Seller
shall deliver or cause to be delivered to the Custodian, a photocopy of such
Mortgage, together with (i) in the case of a delay caused by the public
recording office, an Officer's Certificate of the Seller (or certified by the
title company, escrow agent, or closing attorney) stating that such Mortgage has
been dispatched to the appropriate public recording office for recordation and
that the original recorded Mortgage or a copy of such Mortgage certified by such
public recording office to be a true and complete copy of the original recorded
Mortgage will be promptly delivered to the Custodian upon receipt thereof by the
Seller; or (ii) in the case of a Mortgage where a public recording office
retains the original recorded Mortgage or in the case where a Mortgage is lost
after recordation in a public recording office, a copy of such Mortgage
certified by such public recording office to be a true and complete copy of the
original recorded Mortgage;
(d) the originals of all assumption, modification, consolidation or
extension agreements, if any, with evidence of recording thereon;
(e) with respect to Mortgage Loans that are not Co-op Loans, the
original Assignment of Mortgage for each Mortgage Loan, in form and substance
acceptable for recording (except with respect to MERS Designated Loans). The
Assignment of Mortgage must be duly recorded only if recordation is either
necessary under applicable law or commonly required by private institutional
mortgage investors in the area where the Mortgaged Property is located or on
direction of the Purchaser as provided in this Agreement. If the Assignment of
Mortgage is to be recorded, the Mortgage shall be assigned to the Purchaser. If
the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage
shall be delivered in blank. If the Mortgage Loan was acquired by the Seller in
a merger, the Assignment of Mortgage must be made by "[Seller], successor by
merger to [name of predecessor]". If the Mortgage Loan was acquired or
originated by the Seller while doing business under another name, the Assignment
of Mortgage must be by "[Seller], formerly known as [previous name]";
(f) with respect to Mortgage Loans that are not Co-op Loans, the
originals of all intervening assignments of mortgage (if any) evidencing a
complete chain of assignment from the Seller to the Last Endorsee (or, in the
case of a MERS Designated Loan, MERS) with evidence of recording thereon, or if
any such intervening assignment has not been returned from the applicable
recording office or has been lost or if such public recording office retains the
original recorded assignments of mortgage, the Seller shall deliver or cause to
be delivered to the Custodian, a photocopy of such intervening assignment,
together with (i) in the case of a delay caused by the public recording office,
an Officer's Certificate of the Seller (or certified by the title company,
escrow agent, or closing attorney) stating that such intervening assignment of
mortgage has been dispatched to the appropriate public recording office for
recordation and that such original recorded intervening assignment of mortgage
or a copy of such intervening assignment of mortgage certified by the
appropriate public recording office to be a true and complete copy of the
original recorded intervening assignment of mortgage will be promptly delivered
to the Custodian upon receipt thereof by the Seller; or (ii) in the case of an
intervening assignment where a public recording office retains the original
recorded intervening assignment or in the case where an intervening assignment
is lost after recordation in a public recording office, a copy of such
intervening assignment certified by such public recording office to be a true
and complete copy of the original recorded intervening assignment;
(g) with respect to Mortgage Loans that are not Co-op Loans, the
original mortgagee policy of title insurance or, in the event such original
title policy is unavailable, a certified true copy of the related policy binder
or commitment for title certified to be true and complete by the title insurance
company;
(h) the original or, if unavailable, a copy of any security
agreement, chattel mortgage or equivalent document executed in connection with
the Mortgage;
(i) with respect to any Co-op Loan: (i) a copy of the Co-op Lease
and the assignment of such Co-op Lease, with all intervening assignments showing
a complete chain of title and an assignment thereof by Seller; (ii) the stock
certificate together with an undated stock power relating to such stock
certificate executed in blank; (iii) the recognition agreement of the interests
of the mortgagee with respect to the Co-op Loan by the residential cooperative
housing corporation, the stock of which was pledged by the related Mortgagor to
the originator of such Co-op Loan; and (iv) copies of the financing statement
filed by the originator as secured party and, if applicable, a filed UCC-3
assignment of the subject security interest showing a complete chain of title,
together with an executed UCC-3 assignment of such security interest by the
Seller in a form sufficient for filing; and
(j) if any of the above documents has been executed by a person
holding a power of attorney, an original or photocopy of such power certified by
the Seller to be a true and correct copy of the original.
In the event an Officer's Certificate of the Seller is delivered to
the Purchaser because of a delay caused by the public recording office in
returning any recorded document, the Seller shall deliver to the Purchaser,
within 90 days of the related Closing Date, an Officer's Certificate which shall
(i) identify the recorded document, (ii) state that the recorded document has
not been delivered to the Custodian due solely to a delay caused by the public
recording office, (iii) state the amount of time generally required by the
applicable recording office to record and return a document submitted for
recordation, and (iv) specify the date the applicable recorded document will be
delivered to the Custodian; provided, however, that any recorded document shall
in no event be delivered later than one year following the related Closing Date.
An extension of the date specified in clause (iv) above may be requested from
the Purchaser, which consent shall not be unreasonably withheld.
EXHIBIT B
FORM OF INDEMNIFICATION
AND
CONTRIBUTION AGREEMENT
THIS INDEMNIFICATION AND CONTRIBUTION AGREEMENT dated _________,
200_ ("Agreement") among BCAP LLC, a Delaware limited liability company (the
"Depositor"), [______________], a [______________] (the "Underwriter"), and
IndyMac Bank, F.S.B., a [______________] (the "Indemnifying Party").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Indemnifying Party originated or acquired the Mortgage
Loans and subsequently sold the Mortgage Loans to Barclays Bank PLC (the
"Purchaser"), an affiliate of the Depositor, in anticipation of the
securitization transaction;
WHEREAS, as an inducement to the Depositor to enter into the Pooling
and Servicing Agreement and the Underwriter to enter into the Underwriting
Agreement (as defined herein), the Indemnifying Party wishes to provide for
indemnification and contribution on the terms and conditions hereinafter set
forth;
NOW, THEREFORE, in consideration of the foregoing and of other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Certain Defined Terms. The following terms shall have the
meanings set forth below, unless the context clearly indicates otherwise:
1933 Act: The Securities Act of 1933, as amended.
1934 Act: The Securities Exchange Act of 1934, as amended.
ABS Informational and Computational Material means any written
communication as defined in Item 1101(a) of Regulation AB under the 1933 Act and
the 1934 Act, as may be amended from time to time.
Agreement: This Indemnification and Contribution Agreement, as the
same may be amended in accordance with the terms hereof.
Free Writing Prospectus: Any written communication that constitutes
a "free writing prospectus," as defined in Rule 405 under the 1933 Act.
Indemnified Parties: As defined in Section 3.1.
Indemnifying Party Information: (A) All information in the
Prospectus Supplement, the Offering Circular, any Free Writing Prospectus or any
amendment or supplement thereto (i) contained under the headings
"Summary--Relevant Parties--Responsible Party [and Servicer,"] "The Mortgage
Loan Pool--Underwriting Guidelines" [and "The Servicer"] and (ii) regarding the
Mortgage Loans, the related mortgagors and/or the related Mortgaged Properties
(but in the case of this clause (ii), only to the extent any untrue statement or
omission arose from or is based upon errors or omissions in the information
concerning the Mortgage Loans, the related mortgagors and/or the related
Mortgaged Properties, as applicable, provided to the Depositor or any affiliate
by or on behalf of the Indemnifying Party)[, and (B) any static pool information
regarding mortgage loans originated or acquired by the Seller [and included in
the Prospectus Supplement, the Offering Circular, the ABS Informational and
Computational Materials or the Free Writing Prospectus or any amendment or
supplement thereto] [incorporated by reference from the Seller's website located
at ______________]].
Offering Circular: The offering circular, dated [ ], 200_, relating
to the private offering of the Privately Offered Certificates, including any
structural term sheets, collateral terms sheets and computational materials used
in connection with such offering.
Person: Any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Pooling and Servicing Agreement: The Pooling and Servicing
Agreement, dated as of ___________, 200_, among the Depositor and
[______________].
Privately Offered Certificates: BCAP LLC Trust [_______], Mortgage
Pass-Through Certificates, Series [_______], Class [__] issued pursuant to the
Pooling and Servicing Agreement.
Prospectus Supplement: The preliminary prospectus supplement, dated
___________, 200_, together with the final prospectus supplement, dated
___________, 200_, relating to the offering of the Publicly Offered
Certificates.
Publicly Offered Certificates: BCAP LLC Trust [_______], Mortgage
Pass-Through Certificates, Series [_______], Class [__], Class [__], Class [__],
Class [__], Class [__], Class [__] and Class [__] issued pursuant to the Pooling
and Servicing Agreement.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1506-1631 (Jan. 7, 2005)) or by
the staff of the Commission, or as may be provided by the Commission or its
staff from time to time.
Underwriting Agreement: The Underwriting Agreement, dated
___________, 200_, among the Depositor and the Underwriter, relating to the sale
of the Publicly Offered Certificates.
1.2 Other Terms. Capitalized terms used but not defined herein shall
have the meanings assigned to such terms in the Pooling and Servicing Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
(a) Each party hereto represents and warrants that it has all
requisite power and authority to execute, deliver and perform its obligations
under this Agreement;
(b) Each party hereto represents and warrants that this Agreement
has been duly authorized, executed and delivered by such party;
(c) Each party hereto represents and warrants that assuming the due
authorization, execution and delivery by each other party hereto, this Agreement
constitutes the legal, valid and binding obligation of such party and
(d) The Indemnifying Party hereto represents and warrants that the
Indemnifying Party Information satisfies the requirements of the applicable
provisions of Regulation AB.
ARTICLE III
INDEMNIFICATION
3.1 Indemnification by the Indemnifying Party of the Depositor and
the Underwriter. (a) The Indemnifying Party shall indemnify and hold harmless
the Depositor and the Underwriter and their respective affiliates, and their
respective present and former directors, officers, employees, agents and each
Person, if any, that controls the Depositor, the Underwriter or such affiliate,
within the meaning of either the 1933 Act or the 1934 Act (collectively, the
"Indemnified Parties"), against any and all losses, claims, damages, penalties,
fines, forfeitures or liabilities, joint or several, to which each such
Indemnified Party may become subject, under the 1933 Act, the 1934 Act or
otherwise, to the extent that such losses, claims, damages, penalties, fines,
forfeitures or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material fact
contained in the Prospectus Supplement, the Offering Circular, the ABS
Informational and Computational Materials, any Free Writing Prospectus or any
amendment or supplement thereto, or arise out of or are based upon (i) any
breach of the representation and warranty set forth in Article II(d) above or
(ii) the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances in which they were made, not misleading, to the extent that
such untrue statement or alleged untrue statement or omission or alleged
omission relates to information set forth in the Indemnifying Party Information,
and the Indemnifying Party shall in each case reimburse each Indemnified Party
for any legal or other costs, fees, or expenses reasonably incurred and as
incurred by such Indemnified Party in connection with investigating or defending
any such loss, claim, damage, penalty, fine, forfeiture, liability or action.
The Indemnifying Party's liability under this Section 3.1 shall be in addition
to any other liability that the Indemnifying Party may otherwise have.
(b) If the indemnification provided for in this Section 3.1 shall
for any reason be unavailable to an Indemnified Party under this Section 3.1
(other than due to indemnification not being applicable under Section 3.1(a)),
then the party which would otherwise be obligated to indemnify with respect
thereto, on the one hand, and the parties which would otherwise be entitled to
be indemnified, on the other hand, shall contribute to the aggregate losses,
liabilities, claims, damages, penalty, fine, forfeiture, costs, fees and
expenses of the nature contemplated herein and incurred by the parties hereto in
such proportions that are appropriate to reflect the relative fault of the
Depositor or the Underwriter, on the one hand, and the Indemnifying Party, on
the other hand, in connection with the applicable misstatements or omissions as
well as any other relevant equitable considerations. Notwithstanding the
foregoing, no Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any
Person that was not guilty of such fraudulent misrepresentation. For purposes of
this Section 3.1, each director of a party to this Agreement and each Person, if
any, that controls a party to this Agreement within the meaning of Section 15 of
the 1933 Act shall have the same rights to contribution as such party.
3.2 Notification; Procedural Matters. Promptly after receipt by an
Indemnified Party under Section 3.1 of notice of any claim or the commencement
of any action, such Indemnified Party shall, if a claim in respect thereof is to
be made against the Indemnifying Party (or if a claim for contribution is to be
made against another party) under Section 3.1, notify the Indemnifying Party (or
other contributing party) in writing of the claim or the commencement of such
action; provided, however, that the failure to notify the Indemnifying Party (or
other contributing party) shall not relieve it from any liability which it may
have under Section 3.1 except to the extent it has been materially prejudiced by
such failure; and provided, further, however, that the failure to notify the
Indemnifying Party shall not relieve it from any liability which it may have to
any Indemnified Party (or to the party requesting contribution) otherwise than
under Section 3.1. In case any such action is brought against any Indemnified
Party and it notifies the Indemnifying Party of the commencement thereof, the
Indemnifying Party shall be entitled to participate therein and, to the extent
that, by written notice delivered to the Indemnified Party promptly after
receiving the aforesaid notice from such Indemnified Party, the Indemnifying
Party elects to assume the defense thereof, it may participate with counsel
reasonably satisfactory to such Indemnified Party; provided, however, that if
the defendants in any such action include both the Indemnified Party and the
Indemnifying Party and the Indemnified Party or parties shall reasonably have
concluded that there may be legal defenses available to it or them and/or other
Indemnified Parties that are different from or additional to those available to
the Indemnifying Party, or if the use of counsel chosen by the Indemnifying
Party to represent the Indemnified Parties would present such counsel with a
conflict of interest, the Indemnified Party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such Indemnified Party or
parties. Upon receipt of notice from the Indemnifying Party to such Indemnified
Party of its election so to assume the defense of such action and approval by
the Indemnified Party of such counsel, the Indemnifying Party shall not be
liable to such Indemnified Party under this paragraph for any legal or other
expenses subsequently incurred by such Indemnified Party in connection with the
defense thereof, unless (i) the Indemnified Party shall have employed separate
counsel (plus any local counsel) in connection with the assertion of legal
defenses in accordance with the proviso to the immediately preceding sentence,
(ii) the Indemnifying Party shall not have employed counsel reasonably
satisfactory to the Indemnified Party to represent the Indemnified Party within
a reasonable time after notice of commencement of the action or (iii) the
Indemnifying Party shall have authorized the employment of counsel for the
Indemnified Party at the expense of the Indemnifying Party. No party shall be
liable for contribution with respect to any action or claim settled without its
consent, which consent shall not be unreasonably withheld. In no event shall the
Indemnifying Party be liable for the fees and expenses of more than one counsel
(in addition to any local counsel) separate from its own counsel for all
Indemnified Parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances.
ARTICLE IV
GENERAL
4.1 Survival. This Agreement and the obligations of the parties
hereunder shall survive the purchase and sale of the Publicly Offered
Certificates and Privately Offered Certificates.
4.2 Successors. This Agreement shall inure to the benefit of and
be binding upon the parties hereto, each Indemnified Party and their respective
successors and assigns, and no other Person shall have any right or obligation
hereunder.
4.3 Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without giving
effect to principles of conflict of laws.
4.4 Miscellaneous. Neither this Agreement nor any term hereof may
be changed, waived, discharged or terminated except by a writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. This Agreement may be signed in any number of counterparts, each of
which shall be deemed an original, which taken together shall constitute one and
the same instrument.
4.5 Notices. All communications hereunder shall be in writing and
shall be deemed to have been duly given when delivered to:
In the case of the Depositor:
BCAP LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
c/o Barclays Bank PLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
[_____________]
Telephone: (212) [________]
In the case of the Underwriter:
[______________]
[______________]
[______________]
Attention:
Telephone:
In the case of the Indemnifying Party:
IndyMac Bank, F.S.B.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
4.6 Submission To Jurisdiction; Waivers. Each party hereto hereby
irrevocably and unconditionally:
(A) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT OF ANY
JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK, THE FEDERAL COURTS OF THE UNITED STATES OF
AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY
THEREOF;
(B) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN
SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY
SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT
COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(C) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR
PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED
MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS
ADDRESS SET FORTH HEREIN OR AT SUCH OTHER ADDRESS OF WHICH THE PARTIES SHALL
HAVE BEEN NOTIFIED; AND
(D) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT
TO ▇▇▇ IN ANY OTHER JURISDICTION.
4.7 Waiver of Trial by Jury.
EACH PARTY HERETO KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties have executed this Agreement by
their duly authorized officers as of the date first above written.
BCAP LLC
By:____________________________________
Name:
Title:
[UNDERWRITER]
By:____________________________________
Name:
Title:
INDYMAC BANK, F.S.B.
By:____________________________________
Name:
Title:
EXHIBIT C
SELLER'S OFFICER'S CERTIFICATE
------------------------------
I, ____________________, hereby certify that I am the duly
elected [Vice] President of IndyMac Bank, F.S.B., a federally chartered
institution organized under the laws of the [state of ____________] [United
States] (the "Company") and further as follows:
1. Attached hereto as Exhibit 1 is a true, correct and complete copy
of the charter of the Company which is in full force and effect on the
date hereof and which has been in effect without amendment, waiver,
rescission or modification since ___________.
2. Attached hereto as Exhibit 2 is a true, correct and complete copy
of the bylaws of the Company which are in effect on the date hereof and
which have been in effect without amendment, waiver, rescission or
modification since ___________.
3. Attached hereto as Exhibit 3 is an original certificate of good
standing of the Company issued within ten days of the date hereof, and no
event has occurred since the date thereof which would impair such
standing.
4. Attached hereto as Exhibit 4 is a true, correct and complete copy
of the corporate resolutions of the Board of Directors of the Company
authorizing the Company to execute and deliver (a) the Amended and
Restated Mortgage Loan Purchase Agreement, dated as of January 1, 2008
(the "Purchase Agreement"), by and between Barclays Bank PLC (the
"Purchaser") and the Company (b) the Custodial Agreement, dated as of
January 1, 2008 (the "Custodial Agreement"), by and among the Purchaser,
the Company and Deutsche Bank National Trust Company (the "Custodian"),
[and to endorse the Mortgage Notes and execute the Assignments of
Mortgages by original [or facsimile] signature], and such resolutions are
in effect on the date hereof and have been in effect without amendment,
waiver, rescission or modification since ____________. The Purchase
Agreement, the Servicing Agreement and the Custodial Agreement may be
referred to herein as the "Agreements."
5. Either (i) no consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by the Company of or compliance by the Company
with the Agreements, [the sale of the mortgage loans] or the consummation
of the transactions contemplated by the agreements; or (ii) any required
consent, approval, authorization or order has been obtained by the
Company.
6. Neither the consummation of the transactions contemplated by, nor
the fulfillment of the terms of the Agreements conflicts or will conflict
with or results or will result in a breach of or constitutes or will
constitute a default under the charter or by-laws of the Company or, to
the best of my knowledge, the terms of any indenture or other agreement or
instrument to which the Company is a party or by which it is bound or to
which it is subject, or any statute or order, rule, regulations, writ,
injunction or decree of any court, governmental authority or regulatory
body to which the Company is subject or by which it is bound.
7. To the best of my knowledge, there is no action, suit, proceeding
or investigation pending or threatened against the Company which, in my
judgment, either in any one instance or in the aggregate, may result in
any material adverse change in the business, operations, financial
condition, properties or assets of the Company or in any material
impairment of the right or ability of the Company to carry on its business
substantially as now conducted or in any material liability on the part of
the Company or which would draw into question the validity of the
Agreements, or the mortgage loans or of any action taken or to be taken in
connection with the transactions contemplated hereby, or which would be
likely to impair materially the ability of the Company to perform under
the terms of the Agreements.
8. Each person listed on Exhibit 5 attached hereto who, as an
officer or representative of the Company, signed (a) the Agreements, and
(b) any other document delivered or on the date hereof in connection with
any purchase described in the agreements set forth above was, at the
respective times of such signing and delivery, and is now, a duly elected
or appointed, qualified and acting officer or representative of the
Company, who holds the office set forth opposite his or her name on
Exhibit 5, and the signatures of such persons appearing on such documents
are their genuine signatures.
9. The Company is duly authorized to engage in the transactions
described and contemplated in the Purchase Agreement.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the
seal of the Company.
Date:__________________________________ By:____________________________________
Name:
[Seal] Title: [Vice] President
I, ________________________, an [Assistant] Secretary of IndyMac
Bank, F.S.B., hereby certify that ____________ is the duly elected, qualified
and acting [Vice] President of the Company and that the signature appearing
above is [her] [his] genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name.
Date:__________________________________ By:____________________________________
Name:
[Seal] Title: [Assistant] Secretary
EXHIBIT 5 to
Company's Officer's Certificate
NAME TITLE SIGNATURE
------------------------- --------------------------- ------------------------
------------------------- --------------------------- ------------------------
------------------------- --------------------------- ------------------------
------------------------- --------------------------- ------------------------
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EXHIBIT D
FORM OF OPINION OF COUNSEL TO THE SELLER
----------------------------------------
[INDYMAC FORM TO BE INSERTED]
EXHIBIT E
FORM OF SECURITY RELEASE CERTIFICATION
--------------------------------------
___________________, 200__
[Federal Home Loan Bank of
______(the "Association")]
__________________________
__________________________
____))____________________
Attention: ___________________________
___________________________
Re: Notice of Sale and Release of Collateral
----------------------------------------
Dear Sirs:
This letter serves as notice that IndyMac Bank, F.S.B. a [type of
entity], organized pursuant to the laws of [the State of incorporation] (the
"Company") has committed to sell certain mortgage loans to Barclays Bank PLC
under an Amended and Restated Mortgage Loan Purchase Agreement, dated as of
January 1, 2008. The Company warrants that the mortgage loans to be sold to
Barclays Bank PLC are in addition to and beyond any collateral required to
secure advances made by the Association to the Company.
The Company acknowledges that the mortgage loans to be sold to
Barclays Bank PLC shall not be used as additional or substitute collateral for
advances made by the Association. Barclays Bank PLC understands that the balance
of the Company's mortgage loan portfolio may be used as collateral or additional
collateral for advances made by the Association, and confirms that it has no
interest therein.
Execution of this letter by the Association shall constitute a full
and complete release of any security interest, claim, or lien which the
Association may have against the mortgage loans to be sold to Barclays Bank PLC.
[Signature Page Follows]
Very truly yours,
____________________________
By:_________________________
Name:_______________________
Title:______________________
Date:_______________________
Acknowledged and approved:
[FEDERAL HOME LOAN BANK OF]
__________________________
By:______________________________
Name:____________________________
Title:___________________________
Date:____________________________
EXHIBIT F
FORM OF SECURITY RELEASE CERTIFICATION
--------------------------------------
I. Release of Security Interest
-------------------------------
The financial institution named below hereby relinquishes any and
all right, title, interest, lien or claim of any kind it may have in all
mortgage loans described on the attached Schedule A (the "Mortgage Loans"), to
be purchased by Barclays Bank PLC from the company named on the next page (the
"Company") pursuant to that certain Amended and Restated Mortgage Loan Purchase
Agreement, dated as of January 1, 2008, and certifies that all notes, mortgages,
assignments and other documents in its possession relating to such Mortgage
Loans have been delivered and released to the Company or its designees, as of
the date and time of the sale of such Mortgage Loans to Barclays Bank PLC. Such
release shall be effective automatically without any further action by any party
upon payment in one or more installments, in immediately available funds, of
$_____________, in accordance with the wire instructions set forth below.
Name, Address and Wire Instructions of Financial Institution
IndyMac Bank, F.S.B.
________________________________
(Name)
________________________________
(Address)
________________________________
________________________________
________________________________
By:_____________________________
II. Certification of Release
------------------------
The Company named below hereby certifies to Barclays Bank PLC that,
as of the date and time of the sale of the above-mentioned Mortgage Loans to
Barclays Bank PLC the security interests in the Mortgage Loans released by the
above-named financial institution comprise all security interests relating to or
affecting any and all such Mortgage Loans. The Company warrants that, as of such
time, there are and will be no other security interests affecting any or all of
such Mortgage Loans.
INDYMAC BANK, F.S.B.
By:__________________________
Title:_______________________
Date:________________________
EXHIBIT G
UNDERWRITING GUIDELINES
-----------------------
EXHIBIT H
FORM OF ASSIGNMENT AND CONVEYANCE AGREEMENT
-------------------------------------------
On this ___ day of ____________, 200_, IndyMac Bank, F.S.B.
("Seller"), as the Seller under (i) that certain Purchase Price and Terms
Agreement, dated as of _________, 200_ (the "PPTA"), and (ii) that certain
Amended and Restated Mortgage Loan Purchase Agreement, dated as of January 1,
2008 (the "Purchase Agreement"), does hereby sell, transfer, assign, set over
and convey to Barclays Bank PLC ("Purchaser") as the Purchaser under the
Agreements (as defined below) without recourse, but subject to the terms of the
Agreements, all right, title and interest of, in and to the Mortgage Loans
listed on the Mortgage Loan Schedule attached hereto as Exhibit A (the "Mortgage
Loans"), together with the Mortgage Files and all rights and obligations arising
under the documents contained therein. Each Mortgage Loan subject to the
Agreements was underwritten in accordance with, and conforms to, the
Underwriting Guidelines attached hereto as Exhibit C. Pursuant to Article VI of
the Purchase Agreement, the Seller has delivered to the Custodian the documents
for each Mortgage Loan to be purchased as set forth in the Purchase Agreement.
The contents of each Servicing File required to be retained by IndyMac Bank,
F.S.B. ("Seller" or "Servicer") under that certain Servicing Agreement, dated as
of October 1, 2006 (the "Servicing Agreement") to service the Mortgage Loans
pursuant to the Servicing Agreement and thus not delivered to the Purchaser are
and shall be held in trust by the Servicer for the benefit of the Purchaser as
the owner thereof. The Servicer's possession of any portion of the Servicing
File is at the will of the Purchaser for the sole purpose of facilitating
servicing of the related Mortgage Loan pursuant to the Servicing Agreement, and
such retention and possession by the Servicer shall be in a custodial capacity
only. The ownership of each Mortgage Note, Mortgage and the contents of the
Mortgage File and Servicing File is vested in the Purchaser and the ownership of
all records and documents with respect to the related Mortgage Loan prepared by
or which come into the possession of the Seller shall immediately vest in the
Purchaser and shall be retained and maintained, in trust, by the Seller at the
will of the Purchaser in a custodial capacity only. The PPTA, the Purchase
Agreement and the Servicing Agreement shall collectively be referred to as the
"Agreements" herein.
The Mortgage Loan Package characteristics of the Mortgage Loans
subject hereto are set forth on Exhibit B attached hereto.
In accordance with Article VI of the Purchase Agreement, the
Purchaser accepts the Mortgage Loans listed on Exhibit A attached hereto.
Notwithstanding the foregoing the Purchaser does not waive any rights or
remedies it may have under the Agreements.
Capitalized terms used herein and not otherwise defined shall have
the meanings set forth in the Purchase Agreement.
[SIGNATURE PAGE FOLLOWS]
INDYMAC BANK, F.S.B.
By: __________________________________
Name: ___________________________
Title: ___________________________
Accepted and Agreed:
BARCLAYS BANK PLC
By:_____________________________
Name:
Title:
EXHIBIT A
TO ASSIGNMENT AND CONVEYANCE AGREEMENT
THE MORTGAGE LOANS
------------------
EXHIBIT B
TO ASSIGNMENT AND CONVEYANCE AGREEMENT
[Pool Characteristics of the Mortgage Loan Package as
delivered on the related Closing Date:]
EXHIBIT C
TO ASSIGNMENT AND CONVEYANCE AGREEMENT
UNDERWRITING GUIDELINES
-----------------------
EXHIBIT I
FORM OF ASSIGNMENT AND RECOGNITION AGREEMENT
THIS ASSIGNMENT AND RECOGNITION AGREEMENT, dated [____________
__, 20__] ("Agreement"), among Barclays Bank PLC ("Assignor"),
[____________________] ("Assignee") and IndyMac Bank, F.S.B. (the "Company"):
For and in consideration of the sum of TEN DOLLARS ($10.00) and
other valuable consideration the receipt and sufficiency of which hereby are
acknowledged, and of the mutual covenants herein contained, the parties hereto
hereby agree as follows:
Assignment and Conveyance
-------------------------
1. The Assignor hereby conveys, sells, grants, transfers and
assigns to the Assignee all of the right, title and interest of the Assignor, as
purchaser, in, to and under (a) those certain Mortgage Loans listed on the
schedule (the "Mortgage Loan Schedule") attached hereto as Exhibit A (the
"Mortgage Loans") and (b) except as described below, that certain Amended and
Restated Mortgage Loan Purchase Agreement (the "Purchase Agreement"), dated as
of January 1, 2008, between the Assignor, as purchaser (the "Purchaser"), and
the Company, as seller, solely insofar as the Purchase Agreement relates to the
Mortgage Loans.
The Assignor specifically reserves and does not assign to the
Assignee hereunder (i) any and all right, title and interest in, to and under
and any obligations of the Assignor with respect to any mortgage loans subject
to the Purchase Agreement which are not the Mortgage Loans set forth on the
Mortgage Loan Schedule and are not the subject of this Agreement or (ii) the
rights of the Purchaser under Section 9.04 of the Purchase Agreement.
Recognition of the Company
--------------------------
2. From and after the date hereof (the "Securitization Closing
Date"), the Company shall and does hereby recognize that the Assignee will
transfer the Mortgage Loans and assign its rights under the Purchase Agreement
(solely to the extent set forth herein) and this Agreement to
[__________________] (the "Trust") created pursuant to a Pooling and Servicing
Agreement, dated as of [______], 200_ (the "Pooling Agreement"), among the
Assignee, the Assignor, [___________________], as trustee (including its
successors in interest and any successor trustees under the Pooling Agreement,
the "Trustee"), [____________________], as servicer (including its successors in
interest and any successor servicer under the Pooling Agreement, the
"Servicer"). The Company hereby acknowledges and agrees that from and after the
date hereof (i) the Trust will be the owner of the Mortgage Loans, (ii) the
Company shall look solely to the Trust for performance of any obligations of the
Assignor insofar as they relate to the Mortgage Loans, (iii) the Trust
(including the Trustee and the Servicer acting on the Trust's behalf) shall have
all the rights and remedies available to the Assignor, insofar as they relate to
the Mortgage Loans, under the Purchase Agreement, including, without limitation,
the enforcement of the document delivery requirements set forth in Section 6 of
the Purchase Agreement, and shall be entitled to enforce all of the obligations
of the Company thereunder insofar as they relate to the Mortgage Loans, and (iv)
all references to the Purchaser, the Custodian or the Bailee under the Purchase
Agreement insofar as they relate to the Mortgage Loans, shall be deemed to refer
to the Trust (including the Trustee and the Servicer acting on the Trust's
behalf). Neither the Company nor the Assignor shall amend or agree to amend,
modify, waiver, or otherwise alter any of the terms or provisions of the
Purchase Agreement which amendment, modification, waiver or other alteration
would in any way affect the Mortgage Loans or the Company's performance under
the Purchase Agreement with respect to the Mortgage Loans without the prior
written consent of the Trustee.
Representations and Warranties of the Company
---------------------------------------------
3. The Company warrants and represents to the Assignor, the
Assignee and the Trust as of the date hereof that:
(a) The Company is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation;
(b) The Company has full power and authority to execute, deliver and
perform its obligations under this Agreement and has full power and
authority to perform its obligations under the Purchase Agreement. The
execution by the Company of this Agreement is in the ordinary course of
the Company's business and will not conflict with, or result in a breach
of, any of the terms, conditions or provisions of the Company's charter or
bylaws or any legal restriction, or any material agreement or instrument
to which the Company is now a party or by which it is bound, or result in
the violation of any law, rule, regulation, order, judgment or decree to
which the Company or its property is subject. The execution, delivery and
performance by the Company of this Agreement have been duly authorized by
all necessary corporate action on part of the Company. This Agreement has
been duly executed and delivered by the Company, and, upon the due
authorization, execution and delivery by the Assignor and the Assignee,
will constitute the valid and legally binding obligation of the Company,
enforceable against the Company in accordance with its terms except as
enforceability may be limited by bankruptcy, reorganization, insolvency,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, and by general principles of equity
regardless of whether enforceability is considered in a proceeding in
equity or at law;
(c) No consent, approval, order or authorization of, or declaration,
filing or registration with, any governmental entity is required to be
obtained or made by the Company in connection with the execution, delivery
or performance by the Company of this Agreement; and
(d) There is no action, suit, proceeding or investigation pending or
threatened against the Company, before any court, administrative agency or
other tribunal, which would draw into question the validity of this
Agreement or the Purchase Agreement, or which, either in any one instance
or in the aggregate, would result in any material adverse change in the
ability of the Company to perform its obligations under this Agreement or
the Purchase Agreement, and the Company is solvent.
4. Pursuant to Section 13 of the Purchase Agreement, the Company
hereby represents and warrants, for the benefit of the Assignor, the Assignee
and the Trust, that the representations and warranties set forth in Section 9.02
of the Purchase Agreement are true and correct as of the date hereof as if such
representations and warranties were made on the date hereof unless otherwise
specifically stated in such representations and warranties.
Remedies for Breach of Representations and Warranties
-----------------------------------------------------
5. The Company hereby acknowledges and agrees that the remedies
available to the Assignor, the Assignee and the Trust (including the Trustee and
the Servicer acting on the Trust's behalf) in connection with any breach of the
representations and warranties made by the Company set forth in Sections 3 and 4
hereof shall be as set forth in Section 9.03 of the Purchase Agreement as if
they were set forth herein (including without limitation the repurchase and
indemnity obligations set forth therein).
Miscellaneous
-------------
6. This Agreement shall be construed in accordance with the laws
of the State of New York, without regard to conflicts of law principles, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
7. No term or provision of this Agreement may be waived or
modified unless such waiver or modification is in writing and signed by the
party against whom such waiver or modification is sought to be enforced, with
the prior written consent of the Trustee.
8. This Agreement shall inure to the benefit of (i) the
successors and assigns of the parties hereto and (ii) the Trust (including the
Trustee and the Servicer acting on the Trust's behalf). Any entity into which
Assignor, Assignee or Company may be merged or consolidated shall, without the
requirement for any further writing, be deemed Assignor, Assignee or Company,
respectively, hereunder.
9. Each of this Agreement and the Purchase Agreement shall
survive the conveyance of the Mortgage Loans and the assignment of the Purchase
Agreement (to the extent assigned hereunder) by Assignor to Assignee and by
Assignee to the Trust and nothing contained herein shall supersede or amend the
terms of the Purchase Agreement.
10. This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original and all such
counterparts shall constitute one and the same instrument.
11. In the event that any provision of this Agreement conflicts
with any provision of the Purchase Agreement with respect to the Mortgage Loans,
the terms of this Agreement shall control.
12. Capitalized terms used in this Agreement (including the
exhibits hereto) but not defined in this Agreement shall have the meanings given
to such terms in the Purchase Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
[_______________]
By: __________________________________
Name:_______________________________
Its:________________________________
BARCLAYS BANK PLC
By: __________________________________
Name:_______________________________
Its:________________________________
By: __________________________________
Name:_______________________________
Its:________________________________
INDYMAC BANK, F.S.B.
By: __________________________________
Name:_______________________________
Its:________________________________
EXHIBIT A TO ASSIGNMENT AND RECOGNITION AGREEMENT
-------------------------------------------------
Mortgage Loan Schedule
EXHIBIT M-2
INDYMAC SERVICING AGREEMENT
================================================================================
SERVICING
AGREEMENT
between
BARCLAYS BANK PLC
Purchaser
and
INDYMAC BANK, F.S.B.
Seller/Servicer
Dated as of October 1, 2006
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.......................................................
ARTICLE II
SERVICING
Section 2.01 Seller to Act as Servicer.........................................
Section 2.02 Liquidation of Mortgage Loans.....................................
Section 2.03 Collection of Mortgage Loan Payments..............................
Section 2.04 Establishment of and Deposits to Custodial Account................
Section 2.05 Permitted Withdrawals from Custodial Account......................
Section 2.06 Establishment of and Deposits to Escrow Account...................
Section 2.07 Permitted Withdrawals from Escrow Account.........................
Section 2.08 Payment of Taxes, Insurance and Other Charges.....................
Section 2.09 Protection of Accounts............................................
Section 2.10 Maintenance of Hazard Insurance...................................
Section 2.11 Maintenance of Mortgage Impairment Insurance......................
Section 2.12 Maintenance of Fidelity Bond and Errors and Omissions
Insurance.........................................................
Section 2.13 Inspections.......................................................
Section 2.14 Restoration of Mortgaged Property.................................
Section 2.15 Title, Management and Disposition of REO Property.................
Section 2.16 Permitted Withdrawals with Respect to REO Property................
Section 2.17 Real Estate Owned Reports.........................................
Section 2.18 Liquidation Reports...............................................
Section 2.19 Reports of Foreclosures and Abandonments of Mortgaged
Property..........................................................
Section 2.20 Notification of Adjustments.......................................
Section 2.21 Maintenance of PMI Policy; Claims.................................
ARTICLE III
PAYMENTS TO PURCHASER
Section 3.01 Remittances.......................................................
Section 3.02 Statements to Purchaser...........................................
Section 3.03 Advances by Seller................................................
ARTICLE IV
GENERAL SERVICING PROCEDURES
Section 4.01 Transfers of Mortgaged Property...................................
Section 4.02 Satisfaction of Mortgages and Release of Mortgage Files...........
Section 4.03 Servicing Compensation............................................
Section 4.04 Annual Statement as to Compliance.................................
Section 4.05 Annual Independent Public Accountants' Servicing Report...........
Section 4.06 Right to Examine Seller Records...................................
Section 4.07 Compliance with ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act of 1999....................
Section 4.08 Credit Reporting..................................................
Section 4.09 Subservicing......................................................
ARTICLE V
SELLER TO COOPERATE
Section 5.01 Provision of Information..........................................
Section 5.02 Financial Statements; Servicing Facilities........................
ARTICLE VI
TERMINATION
Section 6.01 Agency Suspension.................................................
Section 6.02 Damages...........................................................
Section 6.03 Termination.......................................................
Section 6.04 Termination without Cause.........................................
ARTICLE VII
BOOKS AND RECORDS
Section 7.01 Possession of Servicing Files.....................................
ARTICLE VIII
INDEMNIFICATION AND ASSIGNMENT
Section 8.01 Indemnification...................................................
Section 8.02 Limitation on Liability of Seller and Others......................
Section 8.03 Limitation on Resignation and Assignment by Seller................
Section 8.04 Assignment by Purchaser...........................................
Section 8.05 Merger or Consolidation of the Seller.............................
ARTICLE IX
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PURCHASER
Section 9.01 Authority and Capacity............................................
ARTICLE X
REPRESENTATIONS AND WARRANTIES OF SELLER
Section 10.01 Due Organization and Authority....................................
Section 10.02 Ordinary Course of Business.......................................
Section 10.03 No Conflicts......................................................
Section 10.04 Ability to Service................................................
Section 10.05 Ability to Perform................................................
Section 10.06 No Litigation Pending.............................................
Section 10.07 No Consent Required...............................................
Section 10.08 No Untrue Information.............................................
Section 10.09 Reasonable Servicing Fee..........................................
Section 10.10 Credit Reporting..................................................
Section 10.11 Mortgage Loans with Prepayment Premiums...........................
Section 10.12 Ability to Service................................................
Section 10.13 Reasonable Servicing Fee..........................................
ARTICLE XI
DEFAULT
Section 11.01 Events of Default.................................................
Section 11.02 Waiver of Defaults................................................
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Notices...........................................................
Section 12.02 Waivers...........................................................
Section 12.03 Entire Agreement; Amendment.......................................
Section 12.04 Execution; Binding Effect.........................................
Section 12.05 Headings..........................................................
Section 12.06 Relationship of Parties...........................................
Section 12.07 Severability of Provisions........................................
Section 12.08 Recordation of Assignments of Mortgage............................
Section 12.09 Exhibits..........................................................
Section 12.10 Counterparts......................................................
Section 12.11 No Solicitation...................................................
Section 12.12 Cooperation of Seller with a Reconstitution.......................
Section 12.13 Governing Law Jurisdiction; Consent to Service of Process.........
Section 12.14 Waiver of Trial by Jury...........................................
ARTICLE XIII
COMPLIANCE WITH REGULATION AB PROVISIONS
Section 13.01 Intent of the Parties; Reasonableness.............................
Section 13.02 Additional Representations and Warranties of the Seller...........
Section 13.03 Information to Be Provided by the Seller..........................
Section 13.04 Servicer Compliance Statement.....................................
Section 13.05 Report on Assessment of Compliance and Attestation................
Section 13.06 Use of Subservicers and Subcontractors............................
Section 13.07 Indemnification; Remedies.........................................
EXHIBITS
--------
EXHIBIT 1 FORM OF TRIAL BALANCE
EXHIBIT 2 FORM OF CUSTODIAL ACCOUNT CERTIFICATION
EXHIBIT 3 FORM OF CUSTODIAL ACCOUNT LETTER AGREEMENT
EXHIBIT 4 FORM OF ESCROW ACCOUNT CERTIFICATION
EXHIBIT 5 FORM OF ESCROW ACCOUNT LETTER AGREEMENT
EXHIBIT 6 FORM OF MONTHLY REO PROPERTY STATEMENT
EXHIBIT 7 FORM OF LIQUIDATION REPORT
EXHIBIT 8 FORM OF MONTHLY REMITTANCE ADVICE
EXHIBIT 9 FORM OF INDEMNIFICATION AND CONTRIBUTION AGREEMENT
EXHIBIT 10 [RESERVED]
EXHIBIT 11 FORM OF ANNUAL CERTIFICATION
EXHIBIT 12 SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
SERVICING AGREEMENT
This Servicing Agreement (the "Servicing Agreement" or the
"Agreement") is entered into as of October 1, 2006, by and between INDYMAC BANK,
F.S.B., a federal savings bank (the "Seller"), and BARCLAYS BANK PLC, a Delaware
limited liability company (the "Purchaser").
WHEREAS, the Purchaser and the Seller entered into a Mortgage Loan
Purchase Agreement dated as of October 1, 2006 (the "Purchase Agreement")
pursuant to which the Purchaser has agreed to purchase, from time to time, from
the Seller, certain first and second lien, adjustable-rate and fixed-rate
residential mortgage loans (the "Mortgage Loans") to be delivered as whole loans
(each, a "Mortgage Loan Package") on a servicing retained basis; and
WHEREAS, the Purchaser desires to have the Seller service and
administer the Mortgage Loans on behalf of the Purchaser, and the parties desire
to provide the terms and conditions of such servicing by the Seller.
NOW, THEREFORE, in consideration of the mutual promises and
agreements set forth herein and for other good and valuable consideration, the
receipt and the sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.
All capitalized terms not otherwise defined herein have the
respective meanings set forth in the Purchase Agreement. The following terms are
defined as follows:
Accepted Servicing Practices: With respect to any Mortgage Loan,
those mortgage servicing practices of prudent mortgage lending institutions
which service mortgage loans of the same type as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located.
Ancillary Income: All late charges, assumption fees, escrow account
benefits, reinstatement fees, Prepayment Penalties, and similar types of fees
arising from or in connection with any Mortgage, to the extent not otherwise
payable to the Mortgagor under applicable law or pursuant to the terms of the
related Mortgage Note.
Best's: Best's Key Rating Guide.
Closing Date: The date or dates on which the Purchaser from time to
time shall purchase and the Seller from time to time shall sell the Mortgage
Loans listed on the related Mortgage Loan Schedule with respect to the related
Mortgage Loan Package.
Commission: The United States Securities and Exchange Commission.
Condemnation Proceeds: All awards or settlements in respect of a
Mortgaged Property, whether permanent or temporary, partial or entire, by
exercise of the power of eminent domain or condemnation, to the extent not
required to be released to a Mortgagor in accordance with the terms of the
related Mortgage Loan Documents.
Custodial Account: The separate account or accounts created and
maintained pursuant to Section 2.04.
Cut-off Date: The date or dates designated as such on the related
Mortgage Loan Schedule with respect to the related Mortgage Loan Package.
Depositor: The depositor, as such term is defined in Regulation AB,
with respect to any Securitization Transaction.
Determination Date: The earlier of two (2) Business Days prior to
the related Remittance Date, or the 15th day of the month in which the related
Remittance Date occurs.
Due Period: With respect to each Remittance Date, the period
commencing on the first day of the month preceding the month of the Remittance
Date and ending on the last day of the month preceding the month of the
Remittance Date.
Eligible Account: An account or accounts (i) maintained with a
depository institution the short term debt obligations of which are rated by a
nationally recognized statistical rating agency in one of its two (2) highest
rating categories at the time of any deposit therein, (ii) the deposits of which
are insured up to the maximum permitted by the FDIC, or (iii) maintained with an
institution and in a manner acceptable to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac.
Errors and Omissions Insurance Policy: An errors and omissions
insurance policy to be maintained by the Seller pursuant to Section 2.12.
Escrow Account: The separate account or accounts created and
maintained pursuant to Section 2.06.
Escrow Payment: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, condominium charges, and any other payments required to be escrowed by
the Mortgagor with the mortgagee pursuant to the Mortgage or any other document.
Event of Default: Any one of the conditions or circumstances
enumerated in Section 11.01.
Exchange Act: The Securities Exchange Act of 1934, as amended.
▇▇▇▇▇▇ Mae Guides: The ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇' Guide and the ▇▇▇▇▇▇ Mae
Servicers' Guide, and all amendments or additions thereto.
Fidelity Bond: A fidelity bond to be maintained by the Seller
pursuant to Section 2.12.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged Property.
Interest Rate Adjustment Date: With respect to each adjustable rate
Mortgage Loan, the date, specified in the related Mortgage Note and the related
Mortgage Loan Schedule, on which the Mortgage Interest Rate is adjusted.
Liquidation Proceeds: Cash received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or assignment
of such Mortgage Loan, trustee's sale, foreclosure sale or otherwise, or the
sale of the related Mortgaged Property if the Mortgaged Property is acquired in
satisfaction of the Mortgage Loan.
Monthly Remittance Advice: As defined in Section 3.02.
Mortgage Impairment Insurance: A mortgage impairment or blanket
hazard insurance policy as described in Section 2.11.
Mortgaged Property: With respect to a Mortgage Loan that is not a
Co-op Loan, the Mortgagor's real property (or leasehold estate, if applicable)
securing repayment of a related Mortgage Note, consisting of an unsubordinated
estate in fee simple or, with respect to real property located in jurisdictions
in which the use of leasehold estates for residential properties is a widely
accepted practice, a leasehold estate, in a single parcel or multiple parcels of
real property improved by a Residential Dwelling. With respect to a Co-op Loan,
the stock allocated to a dwelling unit in the residential cooperative housing
corporation that was pledged to secure such Co-op Loan and the related Co-op
Lease.
Officer's Certificate: A certificate signed by the Chairman of the
Board or the Vice Chairman of the Board or a President, Vice President or an
Assistant Vice President and by the Treasurer or the Secretary or one of the
Assistant Treasurers or Assistant Secretaries of the Seller, and delivered to
the Purchaser.
PMI Policy or Primary Insurance Policy: A policy of primary mortgage
guaranty insurance issued by a Qualified Insurer.
Prime Rate: The prime rate announced to be in effect from time to
time, as published as the average rate in The Wall Street Journal (Northeast
edition).
Principal Prepayment: Any payment or other recovery of principal on
a Mortgage Loan which is received in advance of its scheduled Due Date,
excluding any Prepayment Penalty or premium thereon, if so provided in the
related Purchase Price and Terms Agreement, and which is not accompanied by an
amount of interest representing scheduled interest due on any date or dates in
any month or months subsequent to the month of prepayment.
Principal Prepayment Period: The period beginning on the second day
of the month preceding the month in which the related Remittance Date occurs and
ending on the first day of the month in which the related Remittance Date
occurs.
Purchase Agreement: The Mortgage Loan Purchase Agreement between the
Purchaser and the Seller related to the purchase of the Mortgage Loans dated as
of the initial Cut-off Date.
Qualified Depository: A commercial bank, a savings bank or a savings
and loan association (which may be a depository affiliate of the Servicer) which
meets the guidelines set forth by ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac as an eligible
depository institution for custodial accounts. In any case, the Custodial
Account shall be insured by the FDIC in a manner which shall provide maximum
available insurance thereunder and which may be drawn on by the Servicer.
Qualified Insurer: An insurance company duly qualified as such under
the laws of the states in which the Mortgaged Properties are located, duly
authorized and licensed in such states to transact the applicable insurance
business and to write the insurance provided, approved as an insurer by ▇▇▇▇▇▇
Mae and ▇▇▇▇▇▇▇ Mac and whose claims paying ability is rated in the highest
category by any of the Rating Agencies with respect to primary mortgage
insurance and, in addition, in the two highest rating categories by Best's with
respect to hazard and flood insurance or such other rating as may be required by
a Rating Agency in connection with a Securitization Transaction in order to
achieve the desired ratings for the securities to be issued in connection with
such Securitization Transaction.
Reconstitution: Any Securitization Transaction or Whole Loan
Transfer.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1506-1631 (Jan. 7, 2005)) or by
the staff of the Commission, or as may be provided by the Commission or its
staff from time to time.
REMIC: A "real estate mortgage investment conduit" as defined in
Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating
to REMICs, which appear at Sections 860A through 860G of Subchapter M of Chapter
1, of the Code, and related provisions, and proposed, temporary and final
Treasury Regulations and any published rulings, notices and announcements
promulgated thereunder, as the foregoing may be in effect from time to time.
Remittance Date: The 18th day (or if such 18th day is not a Business
Day, the first Business Day immediately following) of any month, beginning with
the first Remittance Date on November 18, 2006.
REO Property: A Mortgaged Property acquired by the Purchaser or its
designee or the Seller on behalf of the Purchaser through foreclosure or by deed
in lieu of foreclosure, as described in Section 2.15.
Regulation AB: Regulation AB under the Securities Act and the
Securities Exchange Act, as such regulation may be amended from time to time.
Securities Act: The federal Securities Act of 1933, as amended.
Securities Exchange Act: The federal Securities Exchange Act of
1934, as amended.
Securitization Transaction: Any transaction involving either (1) a
sale or other transfer of some or all of the Mortgage Loans directly or
indirectly to an issuing entity in connection with an issuance of publicly
offered or privately placed, rated or unrated mortgage backed securities or (2)
an issuance of publicly offered or privately placed, rated or unrated
securities, the payments on which are determined primarily by reference to one
or more portfolios of residential mortgage loans consisting, in whole or in
part, of some or all of the Mortgage Loans.
Seller: As defined in the recitals to this Agreement.
Servicer: As defined in Section 13.03(c).
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses (including reasonable attorneys' fees and
disbursements) incurred in the performance by the Seller of its servicing
obligations, including, but not limited to, the cost of (a) the preservation,
restoration and protection of the Mortgaged Property, (b) any enforcement or
judicial proceedings, including foreclosures, (c) the management and liquidation
of the Mortgaged Property if the Mortgaged Property is acquired in satisfaction
of the Mortgage and (d) compliance with the obligations under Section 2.08
(except with respect to any expenses incurred in connection with procuring or
transferring Tax Service Contracts as provided therein).
Servicing Criteria: The "servicing criteria" set forth in Item
1122(d) of Regulation AB, as such may be amended from time to time.
Servicing Fee: With respect to each Mortgage Loan subject to this
Agreement, the amount of the annual fee the Purchaser shall pay to the Seller,
which shall, for each month, be equal to one-twelfth of (i) the product of the
Servicing Fee Rate and (ii) the unpaid principal balance of such Mortgage Loan.
Such fee shall be payable monthly, computed on the basis of the same principal
amount and period respecting which any related interest payment on a Mortgage
Loan is computed, and shall be pro rated (based upon the number of days of the
related month the Seller so acted as Seller relative to the total number of days
in that month) for each part thereof.
Servicing Fee Rate: With respect to each Mortgage Loan, an amount
equal to 0.375% per annum.
Servicing File: With respect to each Mortgage Loan, the file
retained by the Seller, during the period in which the Seller is acting as
servicer pursuant to this Agreement, consisting of originals of all documents in
the Mortgage File which are not delivered to the Purchaser, its designee or the
Custodian and copies of the Mortgage Loan Documents listed on Exhibit A to the
Purchase Agreement.
Servicer Information: As defined in Section 13.07(a).
Subcontractor: Any vendor, subcontractor or other Person that is not
responsible for the overall servicing (as "servicing" is commonly understood by
participants in the mortgage-backed securities market) of Mortgage Loans but
performs one or more discrete functions identified in Item 1122(d) of Regulation
AB with respect to Mortgage Loans under the direction or authority of the
Company or a Subservicer.
Subservicer: Any Person that services Mortgage Loans on behalf of
the Seller or any Subservicer and is responsible for the performance (whether
directly or through Subservicers or Subcontractors) of a substantial portion of
the material servicing functions required to be performed by the Seller under
this Agreement or any Reconstitution Agreement that are identified in Item
1122(d) of Regulation AB.
Tax Service Contract: A paid-in-full, life-of-loan tax service
contract with First American Real Estate Tax Service, as described in Section
2.08 hereof.
Termination Fee: The amount paid by the Purchaser to the Seller in
the event of the Seller's termination, without cause, as servicer. Such fee
shall equal the percentage amount set forth in Section 6.04 hereof of the then
current aggregate unpaid principal balance of the related Mortgage Loans.
Whole Loan Transfer: Any sale or transfer of some or all of the
Mortgage Loans, other than a Securitization Transaction.
ARTICLE II
SERVICING
Section 2.01 Seller to Act as Servicer.
(a) From and after the related Closing Date, the Seller, as an
independent contractor, shall service and administer the Mortgage Loans and
shall have full power and authority, acting alone or through subservicers or
agents, to do any and all things in connection with such servicing and
administration which the Seller may deem necessary or desirable, consistent with
the terms of this Agreement and with Accepted Servicing Practices. Except as set
forth in this Agreement, the Seller shall service the Mortgage Loans in strict
compliance with the servicing provisions related to the ▇▇▇▇▇▇ ▇▇▇ MBS Program
(Special Servicing Option) of the ▇▇▇▇▇▇ Mae Guides. In the event of any
conflict, inconsistency or discrepancy between any of the servicing provisions
of this Agreement and any of the servicing provisions of the ▇▇▇▇▇▇ ▇▇▇ Guides,
the provisions of this Agreement shall control and be binding upon the Purchaser
and the Seller.
Consistent with the terms of this Agreement, the Seller may waive,
modify or vary any term of any Mortgage Loan or consent to the postponement of
strict compliance with any such term or in any manner grant indulgence to any
Mortgagor if in the Seller's reasonable and prudent determination such waiver,
modification, postponement or indulgence is not individually or in the aggregate
materially adverse to the Purchaser, provided, however, that unless the Seller
has obtained the prior written consent of the Purchaser, the Seller shall not
(unless the Mortgagor is in default with respect to the Mortgage Loan, or such
default is, in the judgment of the Servicer, imminent) permit any modification
with respect to any Mortgage Loan that would change the Mortgage Interest Rate,
defer or forgive the payment of principal or interest or any penalty or premium
on the prepayment of principal, reduce or increase the outstanding principal
balance (except for actual payments of principal) or change the final maturity
date on such Mortgage Loan. Without limiting the generality of the foregoing,
the Seller shall continue, and is hereby authorized and empowered, to execute
and deliver on behalf of itself and the Purchaser, all instruments of
satisfaction or cancellation, or of partial or full release, discharge and all
other comparable instruments, with respect to the Mortgage Loans and with
respect to the Mortgaged Properties. If reasonably required by the Seller, the
Purchaser shall furnish the Seller with any powers of attorney and other
documents necessary or appropriate to enable the Seller to carry out its
servicing and administrative duties under this Agreement.
In servicing and administering the Mortgage Loans, the Seller shall
employ procedures (including collection procedures) and exercise the same care
that it customarily employs and exercises in servicing and administering
mortgage loans for its own account, giving due consideration to Accepted
Servicing Practices where such practices do not conflict with the requirements
of this Agreement, and the Purchaser's reliance on the Seller. In addition, the
Seller shall retain adequate personnel to effect such servicing and
administration of the Mortgage Loans.
The Seller shall keep at its servicing office books and records in
which, subject to such reasonable regulations as it may prescribe, the Seller
shall note transfers of Mortgage Loans. No transfer of a Mortgage Loan may be
made unless such transfer is in compliance with the terms hereof. For the
purposes of this Agreement, Seller shall be under no obligation to deal with any
Person with respect to this Agreement or the Mortgage Loans unless the Seller
has been notified of such transfers as provided in this Section 2.01. The
Purchaser may sell and transfer, in whole or in part, the Mortgage Loans,
provided that no such sale and transfer shall be binding upon Seller unless such
transferee shall agree in writing to be bound by the terms of this Agreement and
the Purchase Agreement. Upon the execution of such writing, the Seller shall
▇▇▇▇ its books and records to reflect the ownership of the Mortgage Loans by
such assignee, and the previous Purchaser shall be released from its obligations
hereunder. This Agreement shall be binding upon and inure to the benefit of the
Purchaser and the Seller and their permitted successors, assignees and
designees.
The Servicing File retained by the Seller pursuant to this Agreement
shall be appropriately marked and identified in the Seller's computer system to
clearly reflect the sale of the related Mortgage Loan to the Purchaser. The
Seller shall release from its custody the contents of any Servicing File
retained by it only in accordance with this Agreement, except when such release
is required in connection with a repurchase of any such Mortgage Loan pursuant
to Section 9 of the Purchase Agreement.
The Seller shall forward to the Custodian or, at the request of the
Purchaser, to the Purchaser or its designee, original documents evidencing an
assumption, modification, consolidation or extension of any Mortgage Loan
entered into in accordance with this Agreement within two weeks of their
execution; provided, however, that the Seller shall provide the Custodian with a
certified true copy of any such document submitted for recordation within two
weeks of its execution, and shall provide the original of any document submitted
for recordation or a copy of such document certified by the appropriate public
recording office to be a true and complete copy of the original within ninety
days of its submission for recordation.
In the event that such original or copy of any document submitted
for recordation to the appropriate public recording office is not so delivered
to the Custodian within 90 days of the related Closing Date, and in the event
that the Seller does not cure such failure within 30 days of discovery or
receipt of written notification of such failure from the Purchaser, the related
Mortgage Loan shall, upon the request of the Purchaser, be repurchased by the
Seller at the price and in the manner specified in Section 9 of the Purchase
Agreement. The foregoing repurchase obligation shall not apply in the event that
the Seller cannot deliver such original or copy of any document submitted for
recordation to the appropriate public recording office within the specified
period due to a delay caused by the recording office in the applicable
jurisdiction, provided that (i) the Seller shall deliver a recording receipt of
such recording office or, if such recording receipt is not available, an
Officer's Certificate of the Seller, which shall (i) identify the recorded
document, (ii) state that the recorded document has not been delivered to the
Custodian due solely to a delay caused by the public recording office, (iii)
state the amount of time generally required by the applicable recording office
to record and return a document submitted for recordation, and (iv) specify the
date the applicable recorded document will be delivered to the Custodian;
provided, however, that any recorded document shall in no event be delivered
later than one year following the related Closing Date.
The Seller must have an internal quality control program that
verifies in a manner consistent with accepted industry procedures, on a regular
basis, the existence and accuracy of the legal documents, credit documents,
property appraisals, and underwriting decisions. The program must be capable of
evaluating and monitoring the overall quality of it's loan production and
servicing activities. The program is to ensure that the Mortgage Loans are
originated and serviced in accordance with prudent mortgage banking practices
and accounting principles; guard against dishonest, fraudulent, or negligent
acts; and guard against errors and omissions by officers, employees, or other
authorized persons.
If a REMIC election has been made with respect to the arrangement
under which the Mortgage Loans and REO Property are held, the Seller shall not
take any action, cause the REMIC to take any action or fail to take (or fail to
cause to be taken) any action, that under the REMIC Provisions, if taken or not
taken, as the case may be, could (i) endanger the status of the REMIC as a REMIC
or (ii) result in the imposition of a tax upon the REMIC (including but not
limited to the tax on "prohibited transactions" as defined in Section 860(a)(2)
of the Code and the tax on "contributions" to a REMIC set forth in Section 860D
of the Code) unless the Seller has received an Opinion of Counsel (at the
expense of the party seeking to take such action) to the effect that the
contemplated action will not endanger such REMIC status or result in the
imposition of any tax on the REMIC.
(b) In addition to the Seller's servicing obligations as set forth
herein, the Seller shall not consent to the placement of a lien on the Mortgaged
Property senior to that of the related Mortgage.
Section 2.02 Liquidation of Mortgage Loans.
In the event that any payment due under any Mortgage Loan and not
postponed pursuant to Section 2.01 is not paid when the same becomes due and
payable, or in the event the Mortgagor fails to perform any other covenant or
obligation under the Mortgage Loan and such failure continues beyond any
applicable grace period, the Seller shall take such action as (1) the Seller
would take under similar circumstances with respect to a similar mortgage loan
held for its own account for investment, (2) shall be consistent with Accepted
Servicing Practices, (3) the Seller shall determine prudently to be in the best
interest of Purchaser and (4) is consistent with any related PMI Policy. In the
event that any payment due under any Mortgage Loan is not postponed pursuant to
Section 2.01 and remains delinquent for a period of 60 days or any other default
continues for a period of 60 days beyond the expiration of any grace or cure
period (or such other period as is required by law in the jurisdiction where the
related Mortgaged Property is located), the Seller shall commence foreclosure
proceedings in accordance with the ▇▇▇▇▇▇ ▇▇▇ Guides, provided that, prior to
commencing foreclosure proceedings, the Seller shall notify the Purchaser in
writing of the Seller's intention to do so, and the Seller shall not commence
foreclosure proceedings if the Purchaser objects to such action within ten (10)
Business Days of receiving such notice. In such connection, the Seller shall
from its own funds make all necessary and proper Servicing Advances, provided,
however, that the Seller shall not be required to expend its own funds in
connection with any foreclosure or towards the restoration or preservation of
any Mortgaged Property, unless it shall determine (a) that such preservation,
restoration and/or foreclosure will increase the proceeds of liquidation of the
Mortgage Loan to Purchaser after reimbursement to itself for such expenses and
(b) that such expenses will be recoverable by it either through Liquidation
Proceeds (respecting which it shall have priority for purposes of withdrawals
from the Custodial Account pursuant to Section 2.05) or through Insurance
Proceeds (respecting which it shall have similar priority).
Notwithstanding anything to the contrary contained herein, in
connection with a foreclosure, in the event the Seller has reasonable cause to
believe that a Mortgaged Property is contaminated by hazardous or toxic
substances or wastes, or if the Purchaser otherwise requests an environmental
inspection or review of such Mortgaged Property to be conducted by a qualified
inspector the Seller shall cause the Mortgaged Property to be so inspected at
the Purchaser's expense. Upon completion of the inspection, the Seller shall
promptly provide the Purchaser with a written report of the environmental
inspection.
After reviewing the environmental inspection report, the Purchaser
shall determine how the Seller shall proceed with respect to the Mortgaged
Property. In the event (a) the environmental inspection report indicates that
the Mortgaged Property is contaminated by hazardous or toxic substances or
wastes and (b) the Purchaser directs the Seller to proceed with foreclosure or
acceptance of a deed in lieu of foreclosure, the Seller shall be reimbursed for
all reasonable costs associated with such foreclosure or acceptance of a deed in
lieu of foreclosure and any related environmental clean up costs, as applicable,
from the related Liquidation Proceeds, or if the Liquidation Proceeds are
insufficient to fully reimburse the Seller, the Seller shall be entitled to be
reimbursed from amounts in the Custodial Account pursuant to Section 2.05
hereof. In the event the Purchaser directs the Seller not to proceed with
foreclosure or acceptance of a deed in lieu of foreclosure, the Seller shall be
reimbursed for all Servicing Advances made with respect to the related Mortgaged
Property from the Custodial Account pursuant to Section 2.05 hereof.
Section 2.03 Collection of Mortgage Loan Payments.
Continuously from the related Closing Date, the Seller shall proceed
diligently to collect all payments due under each of the related Mortgage Loans
when the same shall become due and payable and shall take special care in
ascertaining and estimating Escrow Payments and all other charges that will
become due and payable with respect to the Mortgage Loans and each related
Mortgaged Property, to the end that the installments payable by the Mortgagors
will be sufficient to pay such charges as and when they become due and payable.
Section 2.04 Establishment of and Deposits to Custodial Account.
The Seller shall segregate and hold all funds collected and received
pursuant to the Mortgage Loans separate and apart from any of its own funds and
general assets and shall establish one or more Custodial Accounts, in the form
of time deposit or demand accounts, to be maintained in trust for the Purchaser
and titled "IndyMac Bank, F.S.B., in trust for Barclays Bank PLC as Purchaser of
Mortgage Loans." The Custodial Account shall be established with a Qualified
Depository acceptable to the Purchaser. The Seller and the Purchaser intend that
the Custodial Account be a special deposit account. Any funds deposited in the
Custodial Account shall at all times be fully insured to the full extent
permitted under applicable law. The creation of any Custodial Account shall be
evidenced by a certification in the form of Exhibit 2 hereto, in the case of an
account established with the Seller, or by a letter agreement in the form of
Exhibit 3 hereto, in the case of an account held by a depository other than the
Seller. A copy of such certification or letter agreement shall be furnished to
the Purchaser and, upon request, to any subsequent purchaser.
The Seller shall deposit in the Custodial Account on a daily basis
and retain therein, the following collections received by the Seller and
payments made by the Seller after the related Cut-off Date, other than payments
of principal and interest due on or before the related Cut-off Date or received
by the Seller prior to the related Cut-off Date but allocable to a period
subsequent thereto:
(i) all payments on account of principal on the Mortgage Loans,
including all Principal Prepayments;
(ii) all payments on account of interest on the Mortgage;
(iii) all Liquidation Proceeds and any amount received with respect
to REO Property;
(iv) all Insurance Proceeds including amounts required to be
deposited pursuant to Section 2.10 (other than proceeds to be held in the
Escrow Account and applied to the restoration or repair of the Mortgaged
Property or released to the Mortgagor in accordance with Section 2.14),
Section 2.11 and 2.15;
(v) all Condemnation Proceeds which are not applied to the
restoration or repair of the Mortgaged Property or released to the
Mortgagor in accordance with Section 2.14;
(vi) any amount required to be deposited in the Custodial Account
pursuant to Section 2.01, 2.09, 2.16, 3.01, 4.01 or 4.02;
(vii) any amounts payable in connection with the repurchase of any
Mortgage Loan pursuant to Section 9 of the Purchase Agreement; and
(viii) any amounts required to be deposited by the Seller pursuant
to Section 2.11 in connection with the deductible clause in any blanket
hazard insurance policy.
The foregoing requirements for deposit into the Custodial Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, unless otherwise provided herein, Ancillary Income
need not be deposited by the Seller into the Custodial Account. Any interest
paid on funds deposited in the Custodial Account by the depository institution
shall accrue to the benefit of the Seller and the Seller shall be entitled to
retain and withdraw such interest from the Custodial Account pursuant to Section
2.05.
Section 2.05 Permitted Withdrawals from Custodial Account.
Subject to Section 3.01, on each Remittance Date, the Seller shall
be entitled to funds from the Custodial Account for the following purposes:
(i) to pay to itself the Servicing Fee;
(ii) to reimburse the Seller for unreimbursed Servicing Advances
(except to the extent reimbursed pursuant to Section 2.07), any accrued
but unpaid Servicing Fees and for unreimbursed advances of Seller funds
made pursuant to Sections 2.16 or 3.03, the Seller's right to reimburse
itself pursuant to this subclause (ii) with respect to any Mortgage Loan
being limited to related Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds and such other amounts as may be collected by the
Seller from the Mortgagor or otherwise relating to the Mortgage Loan, it
being understood that, in the case of any such reimbursement, the Seller's
right thereto shall be prior to the rights of the Purchaser, except that
where the Seller is required to purchase a Mortgage Loan pursuant to
Section 4.02 of this Agreement, the Seller's right to such reimbursement
shall be subsequent to the payment to the Purchaser of the Repurchase
Price pursuant to such sections and all other amounts required to be paid
to the Purchaser with respect to such Mortgage Loan;
(iii) to pay the Seller any interest earned on funds deposited in
the Custodial Account (all such interest to be paid monthly not later than
each Remittance Date);
(iv) to clear and terminate the Custodial Account upon the
termination of this Agreement; and
(v) to reimburse itself for advances of the Seller's funds made
pursuant to Section 3.03, the Seller's right to reimburse itself pursuant
to this subclause (v) being limited to amounts received on the related
Mortgage Loan which represent late payments of principal and/or interest
respecting which any such advance was made, it being understood that, in
the case of any such reimbursement, the Seller's right thereto shall be
prior to the rights of Purchaser, except that, where the Seller is
required to repurchase a Mortgage Loan pursuant to Section 9 of the
Purchase Agreement or Section 4.02 of this Agreement, the Seller's right
to such reimbursement shall be subsequent to the payment to the Purchaser
of the Repurchase Price pursuant to such sections and all other amounts
required to be paid to the Purchaser with respect to such Mortgage Loan.
Section 2.06 Establishment of and Deposits to Escrow Account.
The Seller shall segregate and hold all funds collected and received
pursuant to a Mortgage Loan constituting Escrow Payments separate and apart from
any of its own funds and general assets and shall establish and maintain one or
more Escrow Accounts, in the form of time deposit or demand accounts, titled,
"IndyMac Bank, F.S.B., in trust for Barclays Bank PLC as Purchaser of Mortgage
Loans." The Seller and the Purchaser intend that the Escrow Account be a special
deposit account. The Escrow Account shall be established with a Qualified
Depository, in a manner which shall provide maximum available insurance
thereunder. Funds deposited in the Escrow Accounts may be drawn on by the Seller
in accordance with Section 2.07. The creation of any Escrow Account shall be
evidenced by a certification in the form of Exhibit 4 hereto, in the case of an
account established with the Seller, or by a letter agreement in the form of
Exhibit 5 hereto, in the case of an account held by a depository other than the
Seller. A copy of such certification shall be furnished to the Purchaser and,
upon request, to any subsequent Purchaser.
The Seller shall deposit in the Escrow Account or Accounts on a
daily basis, and retain therein:
(i) all Escrow Payments collected on account of the Mortgage Loans,
for the purpose of effecting timely payment of any such items as required
under the terms of this Agreement; and
(ii) all amounts representing Insurance Proceeds or Condemnation
Proceeds which are to be applied to the restoration or repair of any
Mortgaged Property.
The Seller shall make withdrawals from the Escrow Account only to
effect such payments as are required under this Agreement, as set forth in
Section 2.07. The Seller shall be entitled to retain any interest paid on funds
deposited in the Escrow Account by the depository institution, other than
interest on escrowed funds required by law or the applicable mortgage loan
documents to be paid to the Mortgagor. To the extent required by law, the Seller
shall pay from its own funds interest on escrowed funds to the Mortgagor
notwithstanding that the Escrow Account may be non-interest bearing or that
interest paid thereon is insufficient for such purposes.
Section 2.07 Permitted Withdrawals from Escrow Account.
Withdrawals from the Escrow Account or Accounts may be made by the
Seller only:
(i) to effect timely payments of ground rents, taxes, assessments,
water rates, mortgage insurance premiums, condominium charges, fire and
hazard insurance premiums or other items constituting Escrow Payments for
the related Mortgage;
(ii) to reimburse the Seller for any Servicing Advance made by the
Seller pursuant to Section 2.08 (except with respect to any expenses
incurred in procuring or transferring Tax Service Contracts) with respect
to a related Mortgage Loan, but only from amounts received on the related
Mortgage Loan which represent late collections of Escrow Payments
thereunder;
(iii) to refund to any Mortgagor any funds found to be in excess of
the amounts required under the terms of the related Mortgage Loan or
applicable federal or state law or judicial or administrative ruling;
(iv) for transfer to the Custodial Account and application to reduce
the principal balance of the Mortgage Loan in accordance with the terms of
the related Mortgage and Mortgage Note;
(v) for application to restoration or repair of the Mortgaged
Property in accordance with the procedures outlined in Section 2.14;
(vi) to pay to the Seller, or any Mortgagor to the extent required
by law, any interest paid on the funds deposited in the Escrow Account;
and
(vii) to clear and terminate the Escrow Account on the termination
of this Agreement.
Section 2.08 Payment of Taxes, Insurance and Other Charges.
With respect to each Mortgage Loan, the Seller shall maintain
accurate records reflecting the status of ground rents, taxes, assessments,
water rates, sewer rents, and other charges which are or may become a lien upon
the Mortgaged Property and the status of fire and hazard insurance coverage and
shall obtain, from time to time, all bills for the payment of such charges
(including renewal premiums) and shall effect payment thereof prior to the
applicable penalty or termination date, employing for such purpose deposits of
the Mortgagor in the Escrow Account which shall have been estimated and
accumulated by the Seller in amounts sufficient for such purposes, as allowed
under the terms of the Mortgage. To the extent that a Mortgage does not provide
for Escrow Payments, the Seller shall determine whether any such payments are
made by the Mortgagor at the time they first become due. The Seller assumes full
responsibility for the timely payment of all such bills and shall effect timely
payment of all such charges irrespective of each Mortgagor's faithful
performance in the payment of same or the making of the Escrow Payments, and the
Seller shall make Servicing Advances to effect such payments within such time
period as will avoid the loss of the related Mortgaged Property by foreclosure
of a tax or other lien.
Section 2.09 Protection of Accounts.
The Seller may transfer the Escrow Account to a different Qualified
Depository from time to time. Such transfer shall be made only upon obtaining
the prior written consent of the Purchaser, which consent shall not be withheld
unreasonably.
The Seller shall bear any expenses, losses or damages sustained by
the Purchaser because the Escrow Account are not demand deposit accounts.
Section 2.10 Maintenance of Hazard Insurance.
The Seller shall cause to be maintained for each Mortgage Loan,
hazard insurance such that all buildings upon the Mortgaged Property are insured
by a generally acceptable insurer rated A:VI or better in the current Best's
against loss by fire, hazards of extended coverage and such other hazards as are
customary in the area where the Mortgaged Property is located that conforms to
the requirements of ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac.
If required by the National Flood Insurance Act of 1968, as amended,
each Mortgage Loan is, and shall continue to be, covered by a flood insurance
policy meeting the requirements of the current guidelines of the Federal
Insurance Administration as in effect with a generally acceptable insurance
carrier rated A:VI or better in Best's in an amount representing coverage not
less than the lesser of (i) the aggregate unpaid Stated Principal Balance of the
related Mortgage Loan and of any mortgage loan senior to such Mortgage Loan,
(ii) the maximum amount of insurance which is available under the National Flood
Insurance Act of 1968, as amended (regardless of whether the area in which such
Mortgaged Property is located is participating in such program), and (iii) the
full replacement value of the improvements which are part of such Mortgaged
Property. If a Mortgaged Property is located in a special flood hazard area and
is not covered by flood insurance or is covered in an amount less than the
amount required by the National Flood Insurance Act of 1968, as amended, the
Seller shall notify the related Mortgagor that the Mortgagor must obtain such
flood insurance coverage, and if said Mortgagor fails to obtain the required
flood insurance coverage within forty five (45) days after such notification,
the Seller shall immediately force place the required flood insurance on the
Mortgagor's behalf.
If a Mortgage is secured by a unit in a condominium project, the
Seller shall verify that the coverage required of the owner's association,
including hazard, flood, liability, and fidelity coverage, is being maintained
in accordance with then current ▇▇▇▇▇▇ Mae requirements, and secure from the
owner's association its agreement to notify the Seller promptly of any change in
the insurance coverage or of any condemnation or casualty loss that may have a
material effect on the value of the Mortgaged Property as security.
The Seller shall cause to be maintained on each Mortgaged Property
such other or additional insurance as may be required pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance, or pursuant to the requirements of any
private mortgage guaranty insurer, or as may be required to conform with
Accepted Servicing Practices.
In the event that the Purchaser or the Seller shall determine that
the Mortgaged Property should be insured against loss or damage by hazards and
risks not covered by the insurance required to be maintained by the Mortgagor
pursuant to the terms of the Mortgage, the Seller shall communicate and consult
with the Mortgagor with respect to the need for such insurance and bring to the
Mortgagor's attention the desirability of protection of the Mortgaged Property.
All policies required hereunder shall name the Seller and its
successors and assigns as a mortgagee and loss payee and shall be endorsed with
non contributory standard or New York mortgagee clauses which shall provide for
at least 30 days prior written notice of any cancellation, reduction in amount
or material change in coverage.
The Seller shall not interfere with the Mortgagor's freedom of
choice in selecting either his insurance carrier or agent, provided, however,
that the Seller shall not accept any such insurance policies from insurance
companies unless such companies are rated A:VI or better in Best's and are
licensed to do business in the jurisdiction in which the Mortgaged Property is
located. The Seller shall determine that such policies provide sufficient risk
coverage and amounts as required pursuant to the ▇▇▇▇▇▇ ▇▇▇ Guides, that they
insure the property owner and that they properly describe the property address.
The Seller shall furnish to the Mortgagor a formal notice of expiration of any
such insurance in sufficient time for the Mortgagor to arrange for renewal
coverage by the expiration date; provided, however, that in the event that no
such notice is furnished by the Seller, the Seller shall ensure that replacement
insurance policies are in place in the required coverages and the Seller shall
be solely liable for any losses in the event coverage is not provided.
Pursuant to Section 2.04, any amounts collected by the Seller under
any such policies (other than amounts to be deposited in the Escrow Account and
applied to the restoration or repair of the related Mortgaged Property, or
property acquired in liquidation of the Mortgage Loan, or to be released to the
Mortgagor, in accordance with the Seller's normal servicing procedures as
specified in Section 2.14) shall be deposited in the Custodial Account subject
to withdrawal pursuant to Section 2.05.
Section 2.11 Maintenance of Mortgage Impairment Insurance.
In the event that the Seller shall obtain and maintain, at its own
expense, a blanket policy insuring against losses arising from fire and hazards
covered under extended coverage on all of the Mortgage Loans, then, to the
extent such policy provides coverage in an amount equal to the amount required
pursuant to Section 2.10 and otherwise complies with all other requirements of
Section 2.10, it shall conclusively be deemed to have satisfied its obligations
as set forth in Section 2.10. Any amounts collected by the Seller under any such
policy relating to a Mortgage Loan shall be deposited in the Custodial Account
subject to withdrawal pursuant to Section 2.05. Such policy may contain a
deductible clause, in which case, in the event that there shall not have been
maintained on the related Mortgaged Property a policy complying with Section
2.10, and there shall have been a loss which would have been covered by such
policy, the Seller shall deposit in the Custodial Account at the time of such
loss the amount not otherwise payable under the blanket policy because of such
deductible clause, such amount to be deposited from the Seller's funds, without
reimbursement therefor. Upon request of the Purchaser, the Seller shall cause to
be delivered to the Purchaser a certified true copy of such policy and a
statement from the insurer thereunder that such policy shall in no event be
terminated or materially modified without 30 days' prior written notice to the
Purchaser.
Section 2.12 Maintenance of Fidelity Bond and Errors and Omissions
Insurance.
The Seller shall maintain with responsible companies, at its own
expense, a blanket Fidelity Bond and an Errors and Omissions Insurance Policy,
with broad coverage on all officers, employees or other persons acting in any
capacity requiring such persons to handle funds, money, documents or papers
relating to the Mortgage Loans. These policies shall insure the Seller against
losses resulting from dishonest or fraudulent acts committed by the Seller's
personnel, any employees of outside firms that provide data processing services
for the Seller, and temporary contract employees or student interns. The
Fidelity Bond shall also protect and insure the Seller against losses in
connection with the release or satisfaction of a Mortgage Loan without having
obtained payment in full of the indebtedness secured thereby. No provision of
this Section 2.12 requiring such Fidelity Bond and Errors and Omissions
Insurance Policy shall diminish or relieve the Seller from its duties and
obligations as set forth in this Agreement. The minimum coverage under any such
Fidelity Bond and insurance policy shall be at least equal to the corresponding
amounts required by ▇▇▇▇▇▇ ▇▇▇ in the ▇▇▇▇▇▇ Mae Servicing Guide or by ▇▇▇▇▇▇▇
Mac in the ▇▇▇▇▇▇▇ Mac Servicers' Guide or in an amount as may be permitted to
the Seller by express waiver of ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac. Upon the request of
the Purchaser, the Seller shall cause to be delivered to the Purchaser a
certified true copy of such Fidelity Bond and Errors and Omissions Insurance
Policy and a statement from the surety and the insurer that such Fidelity Bond
and Errors and Omissions Insurance Policy shall in no event be terminated or
materially modified without 30 days' prior written notice to the Purchaser.
Section 2.13 Inspections.
The Seller shall inspect the Mortgaged Property as often as is
deemed necessary by the Seller to assure itself that the value of the Mortgaged
Property is being preserved. In addition, if any Mortgage Loan is more than 60
days delinquent, the Seller shall immediately inspect the Mortgaged Property and
shall conduct subsequent inspections in accordance with Accepted Servicing
Practices. The Seller shall keep a written report of each such inspection.
Section 2.14 Restoration of Mortgaged Property.
The Seller need not obtain the approval of the Purchaser prior to
releasing any Insurance Proceeds or Condemnation Proceeds to the Mortgagor to be
applied to the restoration or repair of the Mortgaged Property if such release
is in accordance with Accepted Servicing Practices and the terms of this
Agreement. At a minimum, the Seller shall comply with the following conditions
in connection with any such release of Insurance Proceeds or Condemnation
Proceeds:
(i) the Seller shall receive satisfactory independent verification
of completion of repairs and issuance of any required approvals with
respect thereto;
(ii) the Seller shall take all steps necessary to preserve the
priority of the lien of the Mortgage, including, but not limited to
requiring waivers with respect to mechanics' and materialmen's liens;
(iii) the Seller shall verify that the Mortgage Loan is not in
default; and
(iv) pending repairs or restoration, the Seller shall place the
Insurance Proceeds or Condemnation Proceeds in the Escrow Account.
If the Purchaser is named as an additional loss payee, the Seller is
hereby empowered to endorse any loss draft issued in respect of such a claim in
the name of the Purchaser.
Section 2.15 Title, Management and Disposition of REO Property.
In the event that title to any Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale
shall be issued in the name of the Seller or its designee, on behalf of the
Purchaser, or in the event the Purchaser or its designee is not authorized or
permitted to hold title to real property in the state where the REO Property is
located, or would be adversely affected under the "doing business" or tax laws
of such state by so holding title, the deed or certificate of sale shall be
issued in the name of such Person or Persons as shall be consistent with an
Opinion of Counsel obtained by the Seller from any attorney duly licensed to
practice law in the state where the REO Property is located. The Person or
Persons holding such title other than the Seller shall acknowledge in writing
that such title is being held as nominee for the Seller, on behalf of the
Purchaser.
The Seller shall manage, conserve, protect and operate each REO
Property for the Purchaser solely for the purpose of its prompt disposition and
sale. The Seller, either itself or through an agent selected by the Seller,
shall manage, conserve, protect and operate the REO Property in the same manner
that it manages, conserves, protects and operates other foreclosed property for
its own account, and in the same manner that similar property in the same
locality as the REO Property is managed. The Seller shall attempt to sell the
same (and may temporarily rent the same for a period not greater than one year,
except as otherwise provided below) on such terms and conditions as the Seller
deems to be in the best interest of the Purchaser. The Seller shall notify the
Purchaser from time to time as to the status of each REO Property.
If a REMIC election is or is to be made with respect to the
arrangement under which the Mortgage Loans and any REO Property are held, the
Seller shall manage, conserve, protect and operate each REO Property in a manner
which does not cause such REO Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code or result in the
receipt by such REMIC of any "income from non permitted assets" within the
meaning of Section 860(a)(2)(B) of the Code or any "net income from foreclosure
property" within the meaning of Section 860(a)(2)(B) of the Code.
The Seller shall use its best efforts to dispose of the REO Property
as soon as possible and shall sell such REO Property in any event within two
years after title has been taken to such REO Property, unless the Seller
determines, and gives an appropriate notice to the Purchaser to such effect,
that a longer period is necessary for the orderly liquidation of such REO
Property. If a period longer than two years is permitted under the foregoing
sentence and is necessary to sell any REO Property, (i) the Seller shall report
monthly to the Purchaser as to the progress being made in selling such REO
Property and (ii) if, with the written consent of the Purchaser, a purchase
money mortgage is taken in connection with such sale, such purchase money
mortgage shall name the Seller as mortgagee, and such purchase money mortgage
shall not be held pursuant to this Agreement, but instead a separate
participation agreement among the Seller and Purchaser shall be entered into
with respect to such purchase money mortgage.
The Seller shall also maintain on each REO Property fire and hazard
insurance with extended coverage in an amount which is at least equal to the
maximum insurable value of the improvements which are a part of such property,
liability insurance and, to the extent required and available under the National
Flood Insurance Act of 1968, as amended, flood insurance in the amount required
in Section 2.10 hereof.
Each REO disposition shall be carried out by the Seller at such
price and upon such terms and conditions as the Seller reasonably determines to
be in the best interest of the Purchaser and provided the sales price and the
related terms and conditions are results of arm's-length negotiation. No REO
disposition shall be effected without the prior written consent of the
Purchaser. The proceeds of sale of the REO Property shall be promptly deposited
in the Custodial Account. As soon as practical thereafter the expenses of such
sale shall be paid and the Seller shall reimburse itself pursuant to Section
2.05 (ii) hereof, for any related unreimbursed Servicing Advances, unpaid
Servicing Fees and unreimbursed advances made pursuant to this Section, and on
the Remittance Date immediately following the Principal Prepayment Period in
which such sale proceeds are received, the net cash proceeds of such sale
remaining in the Custodial Account shall be distributed to the Purchaser;
provided that such distribution shall, in any event, be made within ninety (90)
days from and after the closing of the sale of such REO Property.
In addition to the Seller's obligations set forth in this Section
2.15, the Seller shall deliver written notice to the Purchaser whenever title to
any Mortgaged Property is acquired in foreclosure or by deed in lieu of
foreclosure together with a copy of the drive-by appraisal of the related
Mortgaged Property obtained by the Seller on or prior to the date of such
acquisition.
With respect to each REO Property, the Seller shall hold all funds
collected and received in connection with the operation of the REO Property in
the Custodial Account. The Seller shall cause to be deposited on a daily basis
upon the receipt thereof in each Custodial Account all revenues received with
respect to the conservation and disposition of the related REO Property.
Section 2.16 Permitted Withdrawals with Respect to REO Property.
For so long as the Seller is acting as servicer of any Mortgage Loan
relating to any REO Property, the Seller shall withdraw funds on deposit in the
Custodial Account with respect to each related REO Property necessary for the
proper operation, management and maintenance of the REO Property, including the
cost of maintaining any hazard insurance pursuant to Section 2.10 and the fees
of any managing agent acting on behalf of the Seller. The Seller shall make
monthly distributions on each Remittance Date to the Purchaser of the net cash
flow from the REO Property (which shall equal the revenues from such REO
Property net of the expenses described in Section 2.15 and of any reserves
reasonably required from time to time to be maintained to satisfy anticipated
liabilities for such expenses).
Section 2.17 Real Estate Owned Reports.
For so long as the Seller is acting as servicer of any Mortgage Loan
relating to any REO Property, the Seller shall furnish to the Purchaser on or
before the 15th Business Day of each month a statement in the form of Exhibit 6
hereto with respect to any REO Property covering the operation of such REO
Property for the previous month and the Seller's efforts in connection with the
sale of such REO Property and any rental of such REO Property incidental to the
sale thereof for the previous month. That statement shall be accompanied by such
other information as the Purchaser shall reasonably request.
Section 2.18 Liquidation Reports.
For so long as the Seller is acting as servicer of any Mortgage Loan
relating to any REO Property, upon the foreclosure sale of any Mortgaged
Property or the acquisition thereof by the Purchaser pursuant to a deed in lieu
of foreclosure, the Seller shall submit to the Purchaser a liquidation report in
the form of Exhibit 7 hereto with respect to such Mortgaged Property.
Section 2.19 Reports of Foreclosures and Abandonments of Mortgaged
Property.
For so long as the Seller is acting as servicer of any Mortgage Loan
relating to any REO Property, following the foreclosure sale or abandonment of
any Mortgaged Property, the Seller shall report such foreclosure or abandonment
as required pursuant to Section 6050J of the Code or any successor provision
thereof.
Section 2.20 Notification of Adjustments.
With respect to each Adjustable Rate Mortgage Loan, the Seller shall
adjust the Mortgage Interest Rate on the related Interest Rate Adjustment Date
and shall adjust the Monthly Payment accordingly in compliance with the
requirements of applicable law and the related Mortgage and Mortgage Note. If,
pursuant to the terms of the Mortgage Note, another index is selected for
determining the Mortgage Interest Rate, the same index will be used with respect
to each Mortgage Note which requires a new index to be selected, provided that
such selection does not conflict with the terms of the related Mortgage Note.
The Seller shall execute and deliver any and all necessary notices required
under applicable law and the terms of the related Mortgage Note and Mortgage
regarding the Mortgage Interest Rate and the Monthly Payment adjustments. The
Seller shall promptly upon written request thereof, deliver to the Purchaser
such notifications and any additional applicable data regarding such adjustments
and the methods used to calculate and implement such adjustments. Upon the
discovery by the Seller, or any Purchaser that the Seller has failed to adjust a
Mortgage Interest Rate or a Monthly Payment pursuant to the terms of the related
Mortgage Note and Mortgage, the Seller shall immediately deposit in the
Custodial Account from its own funds the amount of any interest loss caused the
Purchaser thereby.
Section 2.21 Maintenance of PMI Policy; Claims.
With respect to each Mortgage Loan with a LTV in excess of 80%, the
Seller shall, without any cost to the Purchaser, maintain or cause the Mortgagor
to maintain in full force and effect a PMI Policy insuring that portion of the
Mortgage Loan in excess of 75% of value, and shall pay or shall cause the
Mortgagor to pay the premium thereon on a timely basis, until the LTV of such
Mortgage Loan is reduced to 80%. In the event that such PMI Policy shall be
terminated, the Seller shall obtain from another Qualified Insurer a comparable
replacement policy, with a total coverage equal to the remaining coverage of
such terminated PMI Policy. If the insurer shall cease to be a Qualified
Insurer, the Seller shall determine whether recoveries under the PMI Policy are
jeopardized for reasons related to the financial condition of such insurer, it
being understood that the Seller shall in no event have any responsibility or
liability for any failure to recover under the PMI Policy for such reason. If
the Seller determines that recoveries are so jeopardized, it shall notify the
Purchaser and the Mortgagor, if required, and obtain from another Qualified
Insurer a replacement insurance policy. The Seller shall not take any action
which would result in noncoverage under any applicable PMI Policy of any loss
which, but for the actions of the Seller, would have been covered thereunder. In
connection with any assumption or substitution agreement entered into or to be
entered into pursuant to Section 4.01, the Seller shall promptly notify the
insurer under the related PMI Policy, if any, of such assumption or substitution
of liability in accordance with the terms of such PMI Policy and shall take all
actions which may be required by such insurer as a condition to the continuation
of coverage under such PMI Policy. If such PMI Policy is terminated as a result
of such assumption or substitution of liability, the Seller shall obtain a
replacement PMI Policy as provided above.
In connection with its activities as servicer, the Seller agrees to
prepare and present, on behalf of itself and the Purchaser, claims to the
insurer under any PMI Policy in a timely fashion in accordance with the terms of
such PMI Policy and, in this regard, to take such action as shall be necessary
to permit recovery under any PMI Policy respecting a defaulted Mortgage Loan.
Pursuant to Section 2.04, any amounts collected by the Seller under any PMI
Policy shall be deposited in the Custodial Account, subject to withdrawal
pursuant to Section 2.05.
ARTICLE III
PAYMENTS TO PURCHASER
Section 3.01 Remittances.
On each Remittance Date the Seller shall remit by wire transfer of
immediately available funds to the Purchaser (a) all amounts deposited in the
Custodial Account as of the close of business on the 10th day of the month in
which the Remittance Date occurs, except Principal Prepayments received on or
after the second day of the month in which the Remittance Date occurs which
shall be remitted to the Purchaser on the next following Remittance Date,
together with an amount representing compensating interest which, when added to
all amounts allocable to interest received in connection with such partial
Principal Prepayment equals thirty (30) days' interest at the Mortgage Interest
Rate net of the Servicing Fee on the amount of principal so prepaid (net of
charges against or withdrawals from the Custodial Account pursuant to Section
2.05), plus (b) all amounts, if any, which the Seller is obligated to distribute
pursuant to Section 3.03 and minus (c) any amounts attributable to Monthly
Payments collected but due on a Due Date or Dates subsequent to the first day of
the month of the Remittance Date, which amounts shall be remitted on the
Remittance Date next succeeding the Due Period for such amounts
With respect to any remittance received by the Purchaser after the
second Business Day following the Business Day on which such payment was due,
the Seller shall pay to the Purchaser interest on any such late payment at an
annual rate equal to the Prime Rate, adjusted as of the date of each change,
plus three percentage points, but in no event greater than the maximum amount
permitted by applicable law. Such interest shall be deposited in the Custodial
Account by the Seller on the date such late payment is made and shall cover the
period commencing with the day following such second Business Day and ending
with the Business Day on which such payment is made, both inclusive. Such
interest shall be remitted along with the distribution payable on the next
succeeding Remittance Date. The payment by the Seller of any such interest shall
not be deemed an extension of time for payment or a waiver by the Purchaser of
any Event of Default.
Section 3.02 Statements to Purchaser.
Not later than on the tenth (10th) day of the month in which the
Remittance Date occurs, the Seller shall furnish to the Purchaser a monthly
remittance advice in hard copy or electronic format acceptable to the Purchaser,
in the form set forth as Exhibit 8 hereto (the "Monthly Remittance Advice"), as
to the accompanying remittance and the period ending on the tenth (10th) day of
the month in which the Remittance Date occurs and a copy of the bank statement
for the Custodial Account for the immediately preceding month.
In addition, the Seller shall furnish to Purchaser an individual
loan accounting report in hard copy or electronic format, as of the last
Business Day of each month, in the Purchaser's assigned loan number order to
document Mortgage Loan payment activity on an individual Mortgage Loan basis.
With respect to each month, the corresponding individual loan accounting report
shall be received by the Purchaser no later than the fifth Business Day of the
following month, which report shall contain the following:
(i) with respect to each Monthly Payment, the amount of such
remittance allocable to principal (including a separate breakdown of any
Principal Prepayment, including the date of such prepayment, along with a
detailed report of interest on principal prepayment amounts remitted in
accordance with Section 3.01);
(ii) with respect to each Monthly Payment, the amount of such
remittance allocable to interest and assumption fees;
(iii) the amount of servicing compensation received by the Seller
during the prior distribution period;
(iv) the aggregate Stated Principal Balance of the Mortgage Loans;
(v) the aggregate of any expenses reimbursed to the Servicer during
the prior distribution period pursuant to Section 2.05 or 2.07; and
(vi) the number and aggregate outstanding principal balances of
Mortgage Loans (a) delinquent (1) 30 to 59 days, (2) 60 to 89 days, (3) 90
days or more; (b) as to which foreclosure has commenced; and (c) as to
which REO Property has been acquired.
The Seller shall also provide a trial balance, sorted in Purchaser's
assigned loan number order, in the form of Exhibit 1 hereto, with each such
report.
In addition, not more than 60 days after the end of each calendar
year, commencing in 2007, the Seller shall furnish to each Person who was a
Purchaser of the Mortgage Loans at any time during such calendar year an annual
statement in accordance with the requirements of applicable federal income tax
law as to the aggregate of remittances for the applicable portion of such year.
Such obligation of the Seller shall be deemed to have been satisfied to the
extent that substantially comparable information shall be provided by the Seller
pursuant to any requirements of the Internal Revenue Code as from time to time
are in force.
The Seller shall prepare and file any and all tax returns,
information statements or other filings for the previous tax year and subsequent
tax years required to be delivered to any governmental taxing authority or to
the Purchaser pursuant to any applicable law with respect to the Mortgage Loans
and the transactions contemplated hereby. In addition, the Seller shall provide
the Purchaser with such information concerning the Mortgage Loans as is
necessary for the Purchaser to prepare its federal income tax return as the
Purchaser may reasonably request from time to time and which may be reasonably
available to the Seller.
Section 3.03 Advances by Seller.
On the Business Day immediately preceding each Remittance Date, the
Seller shall deposit in the Custodial Account from its own funds an amount equal
to all Monthly Payments which were due on the Mortgage Loans during the
applicable Due Period and which were delinquent at the close of business on the
immediately preceding Determination Date or which were deferred pursuant to
Section 2.01. The Seller's obligation to make such advances as to any Mortgage
Loan will continue through the date of foreclosure sale or sale of any property
acquired through foreclosure or by deed in lieu of foreclosure, whichever is
later with respect to each of the Mortgage Loans or until the Seller deems such
an advance to be nonrecoverable. Except as otherwise provided herein, the Seller
shall be entitled to first priority reimbursement pursuant to Section 2.05
hereof for principal and interest advances and for Servicing Advances from
recoveries from the related Mortgagor or from all Liquidation Proceeds and other
payments or recoveries (including Insurance Proceeds and Condemnation Proceeds)
with respect to the related Mortgage Loan.
ARTICLE IV
GENERAL SERVICING PROCEDURES
Section 4.01 Transfers of Mortgaged Property.
Except as otherwise set forth herein, the Seller shall be required
to enforce any "due-on-sale" provision contained in any Mortgage or Mortgage
Note and to deny assumption by the person to whom the Mortgaged Property has
been or is about to be sold whether by absolute conveyance or by contract of
sale, and whether or not the Mortgagor remains liable on the Mortgage or the
Mortgage Note. When the Mortgaged Property has been conveyed by the Mortgagor,
the Seller shall, to the extent it has knowledge of such conveyance, exercise
its rights to accelerate the maturity of such Mortgage Loan under the
"due-on-sale" clause applicable thereto, provided, however, that the Seller
shall not exercise such rights if prohibited by law from doing so or if the
exercise of such rights would impair or threaten to impair any recovery under
the related PMI Policy, if any.
If the Seller reasonably believes it is unable under applicable law
to enforce such "due-on-sale" clause, the Seller will enter into an assumption
agreement with the person to whom the Mortgaged Property has been conveyed or is
proposed to be conveyed, pursuant to which such person becomes liable under the
Mortgage Note and, to the extent permitted by applicable state law, the
Mortgagor remains liable thereon. Where an assumption is allowed pursuant to
this Section 4.01, the Seller, with the prior written consent of the primary
mortgage insurer, if any, and to the extent required by the applicable insurance
agreement, is authorized to prepare substitution of liability agreement and any
other document required in connection therewith to be entered into by the
Purchaser and the person to whom the Mortgaged Property has been conveyed or is
to be proposed to be conveyed pursuant to which the original Mortgagor is
released from liability and such Person is substituted as Mortgagor and becomes
liable under the related Mortgage Note. Any such substitution of liability
agreement shall be in lieu of an assumption agreement. If an assumption fee is
collected by the Seller for entering into an assumption agreement, a portion of
such fee, up to an amount equal to one-half of one percent (0.5%) of the
outstanding principal balance of the related Mortgage Loan, will be retained by
the Seller as additional servicing compensation, and any portion thereof in
excess of one-half of one percent (0.5%) shall be deposited in the Custodial
Account for the benefit of the Purchaser. In connection with any such
assumption, neither the Mortgage Interest Rate borne by the related Mortgage
Note, the term of the Mortgage Loan nor the outstanding principal amount of the
Mortgage Loan shall be changed.
To the extent that any Mortgage Loan is assumable, the Seller shall
inquire diligently into the creditworthiness of the proposed transferee, and
shall use the Underwriting Guidelines for approving the credit of the proposed
transferee which are used by the Seller with respect to underwriting mortgage
loans of the same type as the Mortgage Loans. If the credit of the proposed
transferee does not meet such Underwriting Guidelines, the Seller diligently
shall, to the extent permitted by the Mortgage or the Mortgage Note and by
applicable law, accelerate the maturity of the Mortgage Loan.
Section 4.02 Satisfaction of Mortgages and Release of Mortgage
Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the
Seller of a notification that payment in full will be escrowed in a manner
customary for such purposes, the Seller shall notify the Purchaser in the
Monthly Remittance Advice as provided in Section 3.02, and may request the
release of any Mortgage Loan Documents from the Purchaser in accordance with
this Section 4.02 hereof. Such Mortgage Note shall be held by the Seller, in
trust, for the purpose of canceling such Mortgage Note and delivering the
cancelled Mortgage Note to the Mortgagor in a timely manner as and to the extent
provided under applicable state law. If the Mortgage has been recorded in the
name of MERS or its designee, the Seller shall take all necessary action to
effect the release of the Mortgage Loan on the records of MERS.
If the Seller satisfies or releases a Mortgage without first having
obtained payment in full of the indebtedness secured by the Mortgage or should
the Seller otherwise prejudice any rights the Purchaser may have under the
mortgage instruments, upon written demand of the Purchaser, the Seller shall
purchase the related Mortgage Loan at the Repurchase Price by deposit thereof in
the Custodial Account within 2 Business Days of receipt of such demand by the
Purchaser. The Seller shall maintain a Fidelity Bond and Errors and Omissions
Insurance Policy as provided for in Section 2.12 insuring the Seller against any
loss it may sustain with respect to any Mortgage Loan not satisfied in
accordance with the procedures set forth herein.
Section 4.03 Servicing Compensation.
As consideration for servicing the Mortgage Loans hereunder, the
Seller shall withdraw the Servicing Fee with respect to each Mortgage Loan from
the Custodial Account pursuant to Section 2.05 hereof. Such Servicing Fee shall
be payable monthly, computed on the basis of the number of Mortgage Loans
subject to this Agreement. The Servicing Fee shall be pro-rated when servicing
is for less than one month. The obligation of the Purchaser to pay, and the
Seller's right to withdraw, the Servicing Fee is limited to, and the Servicing
Fee is payable solely from, the interest portion of such Monthly Payment
collected by the Seller, or as otherwise provided under Section 2.05. The Seller
recognizes that to the extent it does not recover all accrued but unpaid
Servicing Fees under Section 4.03, the Purchaser shall not have any liability
with respect to such shortfalls.
Additional servicing compensation in the form of Ancillary Income
shall be retained by the Seller to the extent not required to be deposited in
the Custodial Account. The Seller shall be required to pay all expenses incurred
by it in connection with its servicing activities hereunder and shall not be
entitled to reimbursement thereof except as specifically provided for herein.
Section 4.04 Annual Statement as to Compliance.
To the extent not required by Section 13.04 hereof, the Seller shall
deliver to the Purchaser, (a) on or before March 10th each year beginning March
10, 2007, an Officer's Certificate, stating that (i) a review of the activities
of the Seller during the preceding calendar year and of performance under this
Agreement has been made under such officer's supervision, and (ii) the Seller
has complied fully with the provisions of Article II and Article IV and to the
best of such officer's knowledge, based on such review, the Seller has fulfilled
all its obligations under this Agreement throughout such year, or, if there has
been a default in the fulfillment of any such obligation, specifying each such
default known to such officer and the nature and status thereof and the action
being taken by the Seller to cure such default.
Section 4.05 Annual Independent Public Accountants' Servicing
Report.
To the extent not required by Section 13.05 hereof, as long as any
Mortgage Loans are being serviced hereunder, or were serviced during the prior
calendar year on or before March 10th of each year beginning March 10, 2007, the
Seller, at its expense, shall cause a firm of independent public accountants
which is a member of the American Institute of Certified Public Accountants to
furnish a statement to the Purchaser to the effect that such firm has examined
certain documents and records relating to the servicing of the Mortgage Loans
and this Agreement and that such firm is of the opinion that the provisions of
Article II and Article III have been complied with, and that, on the basis of
such examination conducted substantially in compliance with the Uniform Single
Attestation Program for Mortgage Bankers, nothing has come to their attention
which would indicate that such servicing has not been conducted in compliance
therewith, except for such exceptions as such firm shall believe to be
immaterial.
Section 4.06 Right to Examine Seller Records.
The Purchaser shall have the right to examine and audit any and all
of the books, records, or other information of the Seller, whether held by the
Seller or by another on its behalf, with respect to or concerning this Agreement
or the Mortgage Loans, during business hours or at such other times as may be
reasonable under applicable circumstances, upon reasonable advance notice.
Section 4.07 Compliance with ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act of 1999.
With respect to each Mortgage Loan and the related Mortgagor, the
Seller shall comply with Title V of the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act of 1999 and all
applicable regulations promulgated thereunder, and shall provide all notices
required thereunder.
Section 4.08 Credit Reporting.
The Seller shall fully furnish, in accordance with the Fair Credit
Reporting Act and its implementing regulations, accurate and complete
information (e.g., favorable and unfavorable) on its borrower credit files to
Equifax, Experian and Trans Union Credit Information Company (three of the
credit repositories), on a monthly basis. Additionally, the Seller will transmit
full-file credit reporting data for each Mortgage Loan pursuant to ▇▇▇▇▇▇ ▇▇▇
Guide Announcement 95-19 and that for each Mortgage Loan, the Seller agrees it
shall report one of the following statuses each month as follows: new
origination, current, delinquent (30-, 60-, 90-days, etc.), foreclosed, or
charged-off.
Section 4.09 Subservicing. The Seller shall not hire or otherwise
utilize a subservicer hereunder without the prior written consent of the
Purchaser and its designee. Any such subservicer must agree in writing to comply
with Sections 4.04, 4.05 and 12.12 (regarding the provision of Servicer
Information).
ARTICLE V
SELLER TO COOPERATE
Section 5.01 Provision of Information.
During the term of this Agreement, the Seller shall furnish to the
Purchaser such periodic, special, or other reports or information, whether or
not provided for herein, as shall be necessary, reasonable, or appropriate with
respect to the Purchaser or the purposes of this Agreement. All such reports or
information shall be provided by and in accordance with all reasonable
instructions and directions which the Purchaser may give.
The Seller shall execute and deliver all such instruments and take
all such action as the Purchaser may reasonably request from time to time, in
order to effectuate the purposes and to carry out the terms of this Agreement.
Section 5.02 Financial Statements; Servicing Facilities.
In connection with marketing the Mortgage Loans, the Purchaser may
make available to a prospective purchaser audited financial statements of the
corporate group that includes the Seller for the most recently completed five
fiscal years for which such statements are available, as well as a Consolidated
Statement of Condition at the end of the last two fiscal years covered by any
Consolidated Statement of Operations. The Seller also shall make available any
comparable interim statements to the extent any such statements have been
prepared by or on behalf of the corporate group that includes the Seller (and
are available upon request to members or stockholders of the corporate group
that includes the Seller or to the public at large). The Seller shall furnish
promptly to the Purchaser or a prospective purchaser copies of the statements
specified above.
The Seller shall make available to the Purchaser or any prospective
Purchaser a knowledgeable financial or accounting officer for the purpose of
answering questions respecting recent developments affecting the Seller or the
financial statements of the corporate group that includes the Seller, and to
permit any prospective purchaser to inspect the Seller's servicing facilities
for the purpose of satisfying such prospective purchaser that the Seller has the
ability to service the Mortgage Loans as provided in this Agreement.
ARTICLE VI
TERMINATION
Section 6.01 Agency Suspension.
Should the Seller at any time during the term of this Agreement have
its right to service temporarily or permanently suspended by ▇▇▇▇▇▇ Mae or
▇▇▇▇▇▇▇ Mac or otherwise cease to be an approved servicer of conventional
residential mortgage loans for ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac, then the Purchaser may
immediately terminate this Agreement and accelerate performance of the
provisions of the Purchase Agreement to require immediate transfer of the
Servicing Rights.
Section 6.02 Damages.
The Purchaser shall have the right at any time to seek and recover
from the Seller any damages or losses suffered by it as a result of any failure
by the Seller to observe or perform any duties, obligations, covenants or
agreements herein contained, or as a result of a party's failure to remain an
approved ▇▇▇▇▇▇ Mae mortgage servicer.
Section 6.03 Termination.
The respective obligations and responsibilities of the Seller shall
terminate upon: (i) the later of the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan serviced by the Seller
or the disposition of all REO Property serviced by the Seller and the remittance
of all funds due hereunder; or (ii) by mutual consent of the Seller and the
Purchaser in writing, unless earlier terminated pursuant to this Agreement.
Section 6.04 Termination without Cause.
The Purchaser may, at its sole option, terminate any rights the
Seller may have hereunder with respect to any or all of the Mortgage Loans,
without cause, upon written notice, provided that the Seller shall have an
additional period of not more than sixty (60) days from and after the date of
said notice from the Purchaser within which to effect the related transfer of
servicing. Any such notice of termination shall be in writing and delivered to
the Seller as provided in Section 12.01 of this Agreement. In the event of such
termination, the Seller shall be entitled to a termination fee, equal to 2% of
the then current aggregate unpaid principal balance of the related Mortgage
Loans.
ARTICLE VII
BOOKS AND RECORDS
Section 7.01 Possession of Servicing Files.
The contents of each Servicing File are and shall be held in trust
by the Seller for the benefit of the Purchaser as the owner thereof. The Seller
shall maintain in the Servicing File a copy of the contents of each Mortgage
File and the originals of the documents in each Mortgage File not delivered to
the Purchaser. The possession of the Servicing File by the Seller is at the will
of the Purchaser for the sole purpose of servicing the related Mortgage Loan,
pursuant to this Agreement, and such retention and possession by the Seller is
in its capacity as Servicer only and at the election of the Purchaser. The
Seller shall release its custody of the contents of any Servicing File only in
accordance with written instructions from the Purchaser, unless such release is
required as incidental to the Seller's servicing of the Mortgage Loans pursuant
to this Agreement, or is in connection with a repurchase of any Mortgage Loan
pursuant to Section 9 of the Purchase Agreement.
The Seller shall be responsible for maintaining, and shall maintain,
a complete set of books and records for each Mortgage Loan which shall be marked
clearly to reflect the ownership of each Mortgage Loan by the Purchaser. In
particular, the Seller shall maintain in its possession, available for
inspection by the Purchaser or its designee, and shall deliver to the Purchaser
or its designee upon demand, evidence of compliance with all federal, state and
local laws, rules and regulations, and requirements of ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇
Mac, including but not limited to documentation as to the method used in
determining the applicability of the provisions of the National Flood Insurance
Act of 1968, as amended, to the Mortgaged Property, documentation evidencing
insurance coverage and eligibility of any condominium project for approval by
▇▇▇▇▇▇ Mae and periodic inspection reports as required by Section 2.13.
ARTICLE VIII
INDEMNIFICATION AND ASSIGNMENT
Section 8.01 Indemnification.
The Seller agrees to indemnify and hold the Purchaser and any
successor servicer and their respective present and former directors, officers,
employees and agents harmless from any and all claims, losses, damages,
penalties, fines, forfeitures, legal fees and expenses (including, without
limitation, any legal fees and expenses, judgments or expenses relating to such
liability, claim, loss or damage) and related costs, judgments, and any other
costs, fees and expenses that such parties may sustain in any way related to the
Seller's failure:
(a) to observe and perform any or all of Seller's duties,
obligations, covenants, agreements, warranties or representations contained in
this Agreement; including without limitation, Sections 4.04, 4.05 and 4.09; or
(b) to comply with all applicable requirements contained in this
Agreement with respect to the servicing of the Mortgage Loan and the transfer of
Servicing Rights.
The indemnification rights set forth in this Section 8.01 shall
survive the termination of this Agreement for any reason.
The Seller immediately shall notify the Purchaser if a claim is made
by a third party with respect to this Agreement. For purposes of this Section,
"Purchaser" shall mean the Person then acting as the Purchaser under this
Agreement and any and all Persons who previously were "Purchasers" under this
Agreement.
Promptly after receipt by an indemnified party under this Section
8.01 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party under
this Section 8.01, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
the indemnifying party from any liability which it may have to any indemnified
party under this Section 8.01, except to the extent that it has been prejudiced
in any material respect, or from any liability which it may have, otherwise than
under this Section 8.01. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein, and to
the extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified party,
to assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party; provided that if the defendants in any such action include
both the indemnified party and the indemnifying party and the indemnified party
or parties shall have reasonably concluded that there may be legal defenses
available to it or them and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party for expenses
incurred by the indemnified party in connection with the defense thereof unless
(i) the indemnified party shall have employed separate counsel in connection
with the assertion of legal defenses in accordance with the proviso to the next
preceding sentence (it being understood, however, that the indemnifying party
shall not be liable for the expenses of more than one separate counsel (together
with one local counsel, if applicable)), (ii) the indemnifying party shall not
have employed counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party has authorized in
writing the employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that, if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii).
Section 8.02 Limitation on Liability of Seller and Others.
Neither the Seller nor any of the directors, officers, employees or
agents of the Seller shall be under any liability to the Purchaser 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 Seller or any such person against any
breach of warranties or representations made herein, its own negligent actions,
or failure to perform its obligations in strict compliance with any standard of
care set forth in this Agreement, or any liability which would otherwise be
imposed by reason of any breach of the terms and conditions of this Agreement.
The Seller and any director, officer, employee or agent of the Seller 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 Seller
shall not be under any obligation to appear in, prosecute or defend any legal
action which is not incidental to its duties to service the Mortgage Loans in
accordance with this Agreement and which in its opinion may involve it in any
expense or liability, provided, however, that the Seller may, with the prior
written consent of the Purchaser, undertake any such action which it may deem
necessary or desirable in respect to this Agreement and the rights and duties of
the parties hereto. In such event, the Seller shall be entitled to reimbursement
from the Purchaser of the reasonable legal expenses and costs of such action.
Section 8.03 Limitation on Resignation and Assignment by Seller.
The Purchaser has entered into this Agreement with the Seller and
subsequent purchasers will purchase the Mortgage Loans in reliance upon the
independent status of the Seller, and the representations as to the adequacy of
its servicing facilities, plant, personnel, records and procedures, its
integrity, reputation and financial standing, and the continuance thereof.
Therefore, the Seller shall not assign this Agreement or the servicing hereunder
or delegate its rights or duties hereunder or any portion hereof or sell or
otherwise dispose of all or substantially all of its property or assets without
the prior written consent of the Purchaser, which consent shall not be
unreasonably withheld by the Purchaser.
The Seller shall not resign from the obligations and duties hereby
imposed on it except by mutual consent of the Seller and the Purchaser or upon
the determination that its duties hereunder are no longer permissible under
applicable law and such incapacity cannot be cured by the Seller. Any such
determination permitting the resignation of the Seller shall be evidenced by an
Opinion of Counsel to such effect delivered to the Purchaser which Opinion of
Counsel shall be in form and substance acceptable to the Purchaser. No such
resignation shall become effective until a successor shall have assumed the
Seller's responsibilities and obligations hereunder in the manner provided in
Section 8.06.
Without in any way limiting the generality of this Section 8.03, in
the event that the Seller either shall assign this Agreement or the servicing
responsibilities hereunder or delegate its duties hereunder, except as provided
for herein, or any portion thereof or sell or otherwise dispose of all or
substantially all of its property or assets, without the prior written consent
of the Purchaser, then the Purchaser shall have the right to terminate this
Agreement upon notice given as set forth in Section 6.04, without any payment of
any penalty or damages and without any liability whatsoever to the Seller or any
third party.
Section 8.04 Assignment by Purchaser.
The Purchaser shall have the right, without the consent of the
Seller, to assign, in whole or in part, its interest under this Agreement with
respect to some or all of the Mortgage Loans, and designate any person to
exercise any rights of the Purchaser hereunder. There shall be no limitation on
the number of assignments or transfers allowable by the Purchaser with respect
to the Mortgage Loans and this Agreement. In the event the Purchaser assigns
this Agreement, and the assignee assumes any of the Purchaser's obligations
hereunder, the Seller acknowledges and agrees to look solely to such assignee,
and not to the Purchaser, for performance of the obligations so assumed and the
Purchaser shall be relieved from any liability to the Seller with respect
thereto. All references to the Purchaser in this Agreement shall be deemed to
include its assignee or designee with respect to such Mortgage Loans.
Section 8.05 Merger or Consolidation of the Seller.
The Seller will keep in full effect its existence, rights and
franchises as a corporation under the laws of the state of its incorporation
except as permitted herein, and will 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 duties under this Agreement. Any Person into which the Seller may be merged
or consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Seller shall be a party, or any Person succeeding to
the business of the Seller, shall be the successor of the Seller 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 shall be an
institution whose deposits are insured by FDIC or a company whose business
includes the servicing of mortgage loans and shall have a tangible net worth not
less than $30,000,000.
Section 8.06. Successor to the Seller.
Prior to termination of Seller's responsibilities and duties under
this Agreement pursuant to Sections 2.15, 6.04, 8.03 or 11.01, the Purchaser
shall (i) succeed to and assume all of the Seller's responsibilities, rights,
duties and obligations under this Agreement, or (ii) appoint a successor having
a tangible net worth of not less than $30,000,000 and which shall succeed to all
rights and assume all of the responsibilities, duties and liabilities of the
Seller under this Agreement prior to the termination of Seller's
responsibilities, duties and liabilities under this Agreement. Any successor to
the Seller shall be a ▇▇▇▇▇▇ ▇▇▇- or ▇▇▇▇▇▇▇ Mac-approved servicer in good
standing. In connection with such appointment and assumption, the Purchaser may
make such arrangements for the compensation of such successor out of payments on
Mortgage Loans as it and such successor shall agree. In the event that the
Seller's duties, responsibilities and liabilities under this Agreement should be
terminated pursuant to the aforementioned sections, the Seller shall discharge
such duties and responsibilities during the period from the date it acquires
knowledge of such termination until the effective date thereof with the same
degree of diligence and prudence which it is obligated to exercise under this
Agreement, and shall take no action whatsoever that might impair or prejudice
the rights or financial condition of its successor. The resignation or removal
of Seller pursuant to the aforementioned Sections shall not become effective
until a successor shall be appointed pursuant to Article X hereof this Section
and shall in no event relieve the Seller of the representations, warranties and
covenants made pursuant to and the remedies available to the Purchaser with
respect thereto, it being understood and agreed that the provisions of such
Article X shall be applicable to the Seller notwithstanding any such resignation
or termination of the Seller, or the termination of this Agreement.
Any successor appointed as provided herein shall execute,
acknowledge and deliver to the Seller and to the Purchaser, an instrument
accepting such appointment, whereupon such successor shall become fully vested
with all the rights, powers, duties, responsibilities, obligations and
liabilities of the Seller, with like effect as if originally named as a party to
this Agreement and the Custodial Agreement. Any termination of this Agreement
pursuant to Section 2.15, 6.04, 8.03 or 11.01 shall not affect any claims that
the Purchaser may have against the Seller arising prior to any such termination
or resignation.
The Seller shall timely deliver to the successor the funds in the
Custodial Account and the Escrow Account and the Mortgage Files and related
documents and statements held by it hereunder and the Seller shall account for
all funds. The Seller shall execute and deliver such instruments and do such
other things all as may reasonably be required to more fully and definitely vest
and confirm in the successor all such rights, powers, duties, responsibilities,
obligations and liabilities of the Seller. The successor shall make arrangements
as it may deem appropriate to reimburse the Seller for amounts the Seller
actually expended pursuant to this Agreement which the successor is entitled to
retain hereunder and which would otherwise have been recovered by the Seller
pursuant to this Agreement but for the appointment of the successor servicer.
ARTICLE IX
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PURCHASER
As of each Closing Date, the Purchaser warrants and represents to,
and covenants and agrees with, the Seller as follows:
Section 9.01 Authority and Capacity.
The execution, delivery and performance by the Purchaser of this
Agreement has been duly and validly authorized by all necessary corporate
action. This Agreement constitutes a legal, valid and enforceable obligation of
the Purchaser.
ARTICLE X
REPRESENTATIONS AND WARRANTIES OF SELLER
As of each Closing Date, the Seller warrants and represents to, and
covenants and agrees with, the Purchaser as follows:
Section 10.01 Due Organization and Authority.
The Seller is a federal savings bank, validly existing and in good
standing under the laws of its jurisdiction of incorporation or formation and is
licensed, qualified and in good standing in each state where a Mortgaged
Property is located if the laws of such state require licensing or qualification
in order to conduct business of the type conducted by the Seller, and in any
event the Seller is in compliance with the laws of any such state to the extent
necessary to ensure the enforceability of the related Mortgage Loan in
accordance with the terms of this Agreement; the Seller has the full power and
authority to execute and deliver this Agreement and to perform in accordance
herewith; the execution, delivery and performance of this Agreement (including
all instruments or transfer to be delivered pursuant to this Agreement) by the
Seller and the consummation of the transactions contemplated hereby have been
duly and validly authorized; this Agreement evidences the valid, binding and
enforceable obligation of the Seller; and all requisite corporate action has
been taken by the Seller to make this Agreement valid and binding upon the
Seller in accordance with its terms;
Section 10.02 Ordinary Course of Business.
The consummation of the transactions contemplated by this Agreement
are in the ordinary course of business of the Seller.
Section 10.03 No Conflicts.
Neither the execution and delivery of this Agreement, nor the
fulfillment of or compliance with the terms and conditions of this Agreement,
will conflict with or result in a breach of any of the terms, conditions or
provisions of the Seller's charter, by-laws or other organizational documents or
any legal restriction or any agreement or instrument to which the Seller is now
a party or by which it is bound, or constitute a default or result in an
acceleration under any of the foregoing, or result in the violation of any law,
rule, regulation, order, judgment or decree to which the Seller or its property
is subject, or impair the ability of the Purchaser to realize on the Mortgage
Loans, or impair the value of the Mortgage Loans.
Section 10.04 Ability to Service.
The Seller is an approved servicer of conventional residential
mortgage loans for ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac, with the facilities, procedures,
and experienced personnel necessary for the sound servicing of mortgage loans of
the same type as the Mortgage Loans. The Seller is in good standing to enforce
and sell mortgage loans to and service mortgage loans in the jurisdiction
wherein the Mortgaged Properties are located and for ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac,
and no event has occurred, including but not limited to a change in insurance
coverage, which would make the Seller unable to comply with ▇▇▇▇▇▇ Mae or
▇▇▇▇▇▇▇ Mac eligibility requirements or which would require notification to
either ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac.
Section 10.05 Ability to Perform.
The Seller does not believe, nor does it have any reason or cause to
believe, that it cannot perform each and every covenant contained in this
Agreement.
Section 10.06 No Litigation Pending.
There is no action, suit, proceeding or investigation pending or
threatened against the Seller, before any court, administrative agency or other
tribunal asserting the invalidity of this Agreement, seeking to prevent the
consummation of any of the transactions contemplated by this Agreement or which,
either in any one instance or in the aggregate, may result in any material
adverse change in the business, operations, financial condition, properties or
assets of the Seller, or in any material impairment of the right or ability of
the Seller to carry on its business substantially as now conducted, or in any
material liability on the part of the Seller, or which would draw into question
the validity of this Agreement or the Mortgage Loans or of any action taken or
to be taken in connection with the obligations of the Seller contemplated
herein, or which would be likely to impair materially the ability of the Seller
to perform under the terms of this Agreement.
Section 10.07 No Consent Required.
No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Seller of or compliance by the Seller with this Agreement or
the servicing of the Mortgage Loans as evidenced by the consummation of the
transactions contemplated by this Agreement, or if required, such approval has
been obtained prior to the Closing Date.
Section 10.08 No Untrue Information.
Neither this Agreement nor any statement, report or other document
furnished or to be furnished by the Seller pursuant to this Agreement or in
connection with the transactions contemplated hereby contains any untrue
statement of material fact or omits to state a material fact necessary to make
the statements contained therein not misleading.
Section 10.09 Reasonable Servicing Fee.
The Seller acknowledges and agrees that the Servicing Fee represents
reasonable compensation for performing such services and that the entire
Servicing Fee shall be treated by the Seller, for accounting and tax purposes,
as compensation for the servicing and administration of the Mortgage Loans
pursuant to this Agreement and the Purchase Agreement.
Section 10.10 Credit Reporting.
The Seller has caused to be fully furnished, in accordance with the
Fair Credit Reporting Act and its implementing regulations, accurate and
complete information (i.e., favorable and unfavorable) on its borrower credit
files to Equifax, Experian, and Trans Union Credit Information Company (three of
the credit repositories), on a monthly basis. This representation and warranty
is a Deemed Material and Adverse Representation.
Section 10.11 Mortgage Loans with Prepayment Premiums.
With respect to any Mortgage Loan that contains a provision
permitting imposition of a premium upon a prepayment prior to maturity,
notwithstanding any state or federal law to the contrary, the Seller shall not
impose such prepayment premium in any instance when the mortgage debt is
accelerated as the result of the related Mortgagor's default in making the
Mortgage Loan payments.
Section 10.12 Ability to Service.
The Seller is an approved seller/servicer of conventional
residential adjustable and fixed rate Mortgage Loans for ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇
Mac, with the facilities, procedures, and experienced personnel necessary for
the sound servicing of mortgage loans of the same type as the Mortgage Loans.
The Seller is duly qualified, licensed, registered and otherwise authorized
under all applicable federal, state and local laws, and regulations, if
applicable, meets the minimum capital requirements set forth by the OTS, the OCC
or the FDIC, and is in good standing to enforce, originate, sell mortgage loans
to, and service mortgage loans in the jurisdiction wherein the Mortgaged
Properties are located for either ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac, and no event has
occurred, including but not limited to a change in insurance coverage, which
would make the Seller unable to comply with either ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac
eligibility requirements or which would require notification to ▇▇▇▇▇▇ Mae or
▇▇▇▇▇▇▇ Mac.
Section 10.13 Reasonable Servicing Fee.
The Seller acknowledges and agrees that the Servicing Fee represents
reasonable compensation for performing such services and that the entire
Servicing Fee shall be treated by the Seller, for accounting and tax purposes,
as compensation for the servicing and administration of the Mortgage Loans
pursuant to this Agreement and the Servicing Agreement.
ARTICLE XI
DEFAULT
Section 11.01 Events of Default.
The following shall constitute an Event of Default under this
Agreement on the part of the Seller:
(a) any failure by the Seller to remit to the Purchaser any payment
required to be made under the terms of this Agreement; or
(b) the failure by the Seller duly to observe or perform in any
material respect any other of the covenants or agreements on the part of the
Seller set forth in this Agreement or in the Custodial Agreement which continues
unremedied for a period of 30 days (except that such number of days shall be
fifteen in the case of a failure to pay any premium for any insurance policy
required to be maintained under this Agreement and such number of days shall be
five in the case of a failure to deliver any reports required to be delivered to
the Purchaser hereunder); or
(c) a decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshaling of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Seller and such
decree or order shall have remained in force undischarged or unstayed for a
period of 60 days; or
(d) the Seller shall consent to the appointment of a conservator or
receiver or liquidator in any insolvency, bankruptcy, readjustment of debt,
marshaling of assets and liabilities or similar proceedings of or relating to
the Seller or of or relating to all or substantially all of its property; or
(e) the Seller shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its obligations; or
(f) the Seller ceases to meet the qualifications of a ▇▇▇▇▇▇ ▇▇▇ or
▇▇▇▇▇▇▇ Mac servicer; or
(g) the Seller attempts to assign its right to servicing
compensation hereunder or the Seller attempts, without the consent of the
Purchaser, to sell or otherwise dispose of all or substantially all of its
property or assets or to assign this Agreement or the servicing responsibilities
hereunder or to delegate its duties hereunder or any portion thereof, except as
provided for herein; or
(h) the Seller fails to maintain its license to do business or
service residential mortgage loans in any jurisdiction where the Mortgaged
Properties are located.
In each and every such case, so long as an Event of Default shall
not have been remedied, in addition to whatsoever rights the Purchaser may have
at law or equity to damages, including injunctive relief and specific
performance, the Purchaser, by notice in writing to the Seller, may terminate
without compensation all the rights and obligations of the Seller under this
Agreement and in and to the Mortgage Loans and the proceeds thereof.
Upon receipt by the Seller of such written notice, all authority and
power of the Seller under this Agreement, whether with respect to the Mortgage
Loans or otherwise, shall pass to and be vested in the successor appointed
pursuant to Section 8.06. Upon written request from the Purchaser, the Seller
shall prepare, execute and deliver any and all documents and other instruments,
place in such successor's possession all Mortgage Files, and do or accomplish
all other acts or things necessary or appropriate to effect the purposes of such
notice of termination, whether to complete the transfer and endorsement or
assignment of the Mortgage Loans and related documents, or otherwise, at the
Seller's sole expense. The Seller agrees to cooperate with the Purchaser and
such successor in effecting the termination of the Seller's responsibilities and
rights hereunder, including, without limitation, the transfer to such successor
for administration by it of all cash amounts which shall at the time be credited
by the Seller to the Custodial Account or Escrow Account or thereafter received
with respect to the Mortgage Loans.
Section 11.02 Waiver of Defaults.
The Purchaser may waive any default by the Seller in the performance
of its obligations hereunder and its consequences. Upon any such waiver of a
past default, such default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been remedied for every purpose of
this Agreement. No such waiver shall extend to any subsequent or other default
or impair any right consequent thereon except to the extent expressly so waived.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Notices.
All demands, notices and communications hereunder shall be in
writing and shall be given via e-mail, facsimile transmission or registered or
certified mail to the person at the address set forth below:
i. if to the Seller:
IndyMac Bank, F.S.B.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Secondary Marketing - Transaction Management
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ___________
ii. if to the Purchaser:
Barclays Bank PLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
E mail: ▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
With a copy to:
Barclays Bank PLC, as administrator
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
E mail: ▇▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
or such other address as may hereafter be furnished to the other party by like
notice. Any such demand, notice or communication hereunder shall be deemed to
have been received on the date delivered to or received at the premises of the
addressee (as evidenced, in the case of registered or certified mail, by the
date noted on the return receipt).
Section 12.02 Waivers.
Either the Seller or the Purchaser may upon consent of all parties,
by written notice to the others:
(a) Waive compliance with any of the terms, conditions or covenants
required to be complied with by the others hereunder; and
(b) Waive or modify performance of any of the obligations of the
others hereunder.
The waiver by any party hereto of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any other subsequent
breach.
Section 12.03 Entire Agreement; Amendment.
This Agreement constitutes the entire agreement between the parties
with respect to servicing of the Mortgage Loans. This Agreement may be amended
and any provision hereof waived, but, only in writing signed by the party
against whom such enforcement is sought.
Section 12.04 Execution; Binding Effect.
This Agreement may be executed in one or more counterparts and by
the different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same agreement. Subject to Sections 8.03 and 8.04, this
Agreement shall inure to the benefit of and be binding upon the Seller and the
Purchaser and their respective successors and assigns.
Section 12.05 Headings.
Headings of the Articles and Sections in this Agreement are for
reference purposes only and shall not be deemed to have any substantive effect.
Section 12.06 Relationship of Parties.
Nothing herein contained shall be deemed or construed to create a
partnership or joint venture between the parties. The duties and
responsibilities of the Seller shall be rendered by it as an independent
contractor and not as an agent of the Purchaser. The Seller shall have full
control of all of its acts, doings, proceedings, relating to or requisite in
connection with the discharge of its duties and responsibilities under this
Agreement.
Section 12.07 Severability of Provisions.
Any part, provision representation or warranty of this Agreement
which is prohibited or unenforceable or is held to be void or unenforceable in
any jurisdiction shall be ineffective, as to such jurisdiction, to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof. If the invalidity of any
part, provision, representation or warranty of this Agreement shall deprive any
party of the economic benefit intended to be conferred by this Agreement, the
parties shall negotiate, in good-faith, to develop a structure the economic
effect of which is nearly as possible the same as the economic effect of this
Agreement without regard to such invalidity.
Section 12.08 Recordation of Assignments of Mortgage.
To the extent permitted by applicable law, each of the Assignments
of Mortgage 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 Mortgaged Properties are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Purchaser or the Purchaser's designee, but in any event, at the
Seller's expense for a single recordation relating to each Assignment of
Mortgage in the event recordation is either necessary under applicable law or
requested by the Purchaser at its sole option.
Section 12.09 Exhibits.
The exhibits to this Agreement are hereby incorporated and made a
part hereof and are integral parts of this Agreement.
Section 12.10 Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
Section 12.11 No Solicitation.
From and after the Closing Date, the Seller agrees that it will not
take any action or permit or cause any action to be taken by any of its agents
or affiliates, or by any independent contractors on the Seller's behalf, to
personally, by telephone or mail, solicit the borrower or obligor under any
Mortgage Loan for any purpose whatsoever, including to refinance a Mortgage
Loan, in whole or in part, without the prior written consent of the Purchaser.
It is understood and agreed that all rights and benefits relating to the
solicitation of any Mortgagors and the attendant rights, title and interest in
and to the list of such Mortgagors and data relating to their Mortgages
(including insurance renewal dates) shall be transferred to the Purchaser
pursuant hereto on the Closing Date and the Seller shall take no action to
undermine these rights and benefits. Notwithstanding the foregoing, it is
understood and agreed that promotions undertaken by the Seller or any affiliate
of the Seller which are directed to the general public at large, including,
without limitation, mass mailing based on commercially acquired mailing lists,
newspaper, radio and television advertisements shall not constitute solicitation
under this Section 12.11.
Section 12.12 Cooperation of Seller with a Reconstitution.
The Seller and the Purchaser agree that with respect to some or all
of the Mortgage Loans, after the related Closing Date, on one or more dates
(each, a "Reconstitution Date") at the Purchaser's sole option, the Purchaser
may effect a sale (each, a "Reconstitution") of some or all of the Mortgage
Loans then subject to this Agreement, without recourse, to:
(a) ▇▇▇▇▇▇ Mae under its Cash Purchase Program or MBS Program
(Special Servicing Option) (each, a "▇▇▇▇▇▇ ▇▇▇ Transfer"); or
(b) ▇▇▇▇▇▇▇ Mac (the "▇▇▇▇▇▇▇ Mac Transfer"); or
(c) one or more third party purchasers in one or more Whole Loan
Transfers; or
(d) one or more trusts or other entities to be formed as part of one
or more Securitization Transactions.
The Seller agrees to execute (i) in connection with any Agency
Transfer, any and all pool purchase contracts, and/or agreements reasonably
acceptable to the Seller among the Purchaser, the Seller, ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇
Mac (as the case may be) and any servicer, (ii) in connection with a Whole Loan
Transfer, a seller's warranties and servicing agreement or a participation and
servicing agreement in form and substance reasonably acceptable to the parties,
and (iii) in connection with a Securitization Transaction, a pooling and
servicing agreement in form and substance reasonably acceptable to the parties
(collectively, the agreements referred to herein are designated, the
"Reconstitution Agreements").
With respect to each Whole Loan Transfer and each Securitization
Transaction entered into by the Purchaser, the Seller agrees (1) to cooperate
fully with the Purchaser and any prospective purchaser with respect to all
reasonable requests and due diligence procedures; (2) to execute, deliver and
perform all Reconstitution Agreements required by the Purchaser; (3) to restate
the representations and warranties set forth in Article X as of the
Reconstitution Date or make the representations and warranties set forth in the
related selling/servicing guide of the master servicer or issuer, as the case
may be, or such representations or warranties as may be required by any rating
agency or prospective purchaser of the related securities or such Mortgage Loans
in connection with such Reconstitution; (4) to service the Mortgage Loans on a
"scheduled/scheduled" basis; (5) to pay compensating interest on any Principal
Prepayment in an amount necessary to provide for thirty (30) days of interest on
the related Principal Prepayment; and (6) to make principal and interest
advances on the Mortgage Loans through the termination of foreclosure. In that
connection, the Seller shall provide to such master servicer or issuer, as the
case may be, and any other participants or purchasers in such Reconstitution:
(i) any and all information and appropriate verification of information which
may be reasonably available to the Seller or its affiliates, whether through
letters of its auditors and counsel or otherwise, as the Purchaser or any such
other participant shall request; (ii) such additional representations,
warranties, covenants, opinions of counsel, letters from auditors, and
certificates of public officials or officers of the Seller as are reasonably
believed necessary by the Purchaser or any such other participant; and (iii) to
execute, deliver and satisfy all conditions set forth in any indemnity agreement
required by the Purchaser or any such participant, including, without
limitation, an Indemnification and Contribution Agreement in substantially the
form attached hereto as Exhibit 9. Moreover, the Seller agrees to cooperate with
all reasonable requests made by the Purchaser to effect such Reconstitution
Agreements. The Seller shall indemnify the Purchaser, each affiliate of the
Purchaser and each underwriter as placement agent participating in the
Reconstitution and each Person who controls the Purchaser or such affiliate and
their respective present and former directors, officers, employees and agents,
and hold each of them harmless from and against any losses, damages, penalties,
fines, forfeitures, legal fees and expenses and related costs, judgments, and
any other costs, fees and expenses that each of them may sustain arising out of
or based upon any untrue statement or alleged untrue statement of a material
fact contained in the information provided by or on behalf of the Seller
regarding the Seller, the Seller's servicing practices or performance or the
Mortgage Loans set forth in any offering document prepared in connection with
any Reconstitution. For purposes of the previous sentence, "Purchaser" shall
mean the Person then acting as the Purchaser under this Agreement and any and
all Persons who previously were "Purchasers" under this Agreement.
In the event the Purchaser has elected to have the Seller hold
record title to the Mortgages, prior to the Reconstitution Date, the Seller
shall prepare an assignment of mortgage in blank or to the prospective purchaser
or trustee, as applicable, from the Seller acceptable to the prospective
purchaser or trustee, as applicable, for each Mortgage Loan that is part of the
Reconstitution and shall pay all preparation and recording costs associated
therewith. In connection with the Reconstitution, the Seller shall execute or
shall cause the Seller to execute each Assignment of Mortgage, track such
Assignments of Mortgage to ensure they have been recorded and deliver them as
required by the prospective purchaser or trustee, as applicable, upon the
Seller's receipt thereof. Additionally, the Seller shall prepare and execute or
shall cause the Seller to execute, at the direction of the Purchaser, any note
endorsement in connection with any and all seller/servicer agreements.
To the extent not required by Section 13.05 hereof, with respect to
any Mortgage Loans sold in a Securitization Transaction where the Seller is the
servicer, the Seller agrees that on or before March 10th of each year beginning
March 10, 2007, the Servicer shall deliver to the depositor, the master servicer
(if any) and the trustee for the securitization trust in the Securitization
Transaction, and their officers, directors and affiliates, a certification in
the form attached as Exhibit 11 hereto, executed by the senior officer in charge
of servicing at the Seller for use in connection with any Form 10-K to be filed
with the Securities and Exchange Commission with respect to the securitization
trust. The Seller shall indemnify and hold harmless the depositor, the master
servicer (if any) and the trustee, and their respective officers, directors and
affiliates, from and against any losses, damages, penalties, fines, forfeitures,
legal fees and expenses and related costs, judgments and other costs and
expenses arising out of or based upon any breach of the Seller's obligations
under this paragraph or any material misstatement or omission, negligence, bad
faith or willful misconduct of the Seller in connection therewith. If the
indemnification provided for in the preceding sentence is unavailable or
insufficient to hold harmless any indemnified party, then the Seller agrees that
it shall contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities of such indemnified party
in such proportion as is appropriate to reflect the relative fault of such
indemnified party, on the one hand, and the Seller, on the other, in connection
with a breach of the Seller's obligations under this paragraph or any material
misstatement or omission, negligence, bad faith or willful misconduct of the
Seller in connection therewith.
All Mortgage Loans not sold or transferred pursuant to a
Reconstitution shall remain subject to this Agreement and, if this Agreement
shall remain in effect with respect to the related Mortgage Loan Package, shall
continue to be serviced in accordance with the terms of this Agreement and the
Purchase Agreement and with respect thereto this Agreement shall remain in full
force and effect.
Section 12.13 Governing Law Jurisdiction; Consent to Service of
Process.
THIS AGREEMENT SHALL BE DEEMED IN EFFECT WHEN A FULLY EXECUTED
COUNTERPART THEREOF IS RECEIVED BY THE PURCHASER IN THE STATE OF NEW YORK AND
SHALL BE DEEMED TO HAVE BEEN MADE IN THE STATE OF NEW YORK. THIS AGREEMENT SHALL
BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT
TO ITS CHOICE OF LAW RULES AND PRINCIPLES. EACH OF THE PURCHASER AND THE SELLER
IRREVOCABLY (I) SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE
SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT; (II) WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW,
THE DEFENSE OF AN INCONVENIENT FORUM IN ANY ACTION OR PROCEEDING IN ANY SUCH
COURT; (III) AGREES THAT A FINAL JUDGMENT IN ANY ACTION OR PROCEEDING IN ANY
SUCH COURT SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN ANY OTHER JURISDICTION BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW; AND (IV) CONSENTS
TO SERVICE OF PROCESS UPON IT BY MAILING A COPY THEREOF BY CERTIFIED MAIL
ADDRESSED TO IT AS PROVIDED FOR NOTICES HEREUNDER.
Section 12.14 Waiver of Trial by Jury.
THE SELLER AND THE PURCHASER EACH KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
ARTICLE XIII
COMPLIANCE WITH REGULATION AB PROVISIONS
Section 13.01 Intent of the Parties; Reasonableness. The Purchaser
and the Seller acknowledge and agree that the purpose of Article XIII of this
Agreement is to facilitate compliance by the Purchaser and any Depositor with
the provisions of Regulation AB and related rules and regulations of the
Commission. Although Regulation AB is applicable by its terms only to offerings
of asset-backed securities that are registered under the Securities Act, the
Seller acknowledges that investors in privately offered securities may require
that the Purchaser or any Depositor provide comparable disclosure in
unregistered offerings. References in this Agreement to compliance with
Regulation AB include provision of comparable disclosure in private offerings.
Neither the Purchaser nor any Depositor shall exercise its right to
request delivery of information or other performance under these provisions
other than in good faith, or for purposes other than compliance with the
Securities Act, the Exchange Act and the rules and regulations of the Commission
thereunder (or the provision in a private offering of disclosure comparable to
that required under the Securities Act). The Seller acknowledges that
interpretations of the requirements of Regulation AB may change over time,
whether due to interpretive guidance provided by the Commission or its staff,
consensus among participants in the asset backed securities markets, advice of
counsel, or otherwise, and agrees to comply with reasonable requests made by the
Purchaser or any Depositor in good faith for delivery of information under these
provisions on the basis of evolving interpretations of Regulation AB. In
connection with any Securitization Transaction, the Seller shall cooperate fully
with the Purchaser to deliver to the Purchaser (including any of its assignees
or designees) and any Depositor, any and all statements, reports,
certifications, records and any other information necessary in the good faith
determination of the Purchaser or any Depositor to permit the Purchaser or such
Depositor to comply with the provisions of Regulation AB, together with such
disclosures relating to the Seller any Subservicer and the Mortgage Loans, or
the servicing of the Mortgage Loans, reasonably believed by the Purchaser or any
Depositor to be necessary in order to effect such compliance.
Section 13.02 Additional Representations and Warranties of the
Seller. (a) The Seller shall be deemed to represent to the Purchaser and to any
Depositor, as of the date on which information is first provided to the
Purchaser or any Depositor under Section 13.03 that, except as disclosed in
writing to the Purchaser or such Depositor prior to such date: (i) the Seller is
not aware and has not received notice that any default, early amortization or
other performance triggering event has occurred as to any other securitization
due to any act or failure to act of the Seller; (ii) the Seller has not been
terminated as servicer in a residential mortgage loan securitization, either due
to a servicing default or to application of a servicing performance test or
trigger; (iii) no material noncompliance with the applicable servicing criteria
with respect to other securitizations of residential mortgage loans involving
the Seller as servicer has been disclosed or reported by the Seller; (iv) no
material changes to the Seller's policies or procedures with respect to the
servicing function it will perform under this Agreement and any Reconstitution
Agreement for mortgage loans of a type similar to the Mortgage Loans have
occurred during the three year period immediately preceding the related
Securitization Transaction; (v) there are no aspects of the Seller's financial
condition that could have a material adverse effect on the performance by the
Seller of its servicing obligations under this Agreement or any Reconstitution
Agreement; (vi) there are no material legal or governmental proceedings pending
(or known to be contemplated) against the Seller or any Subservicer; and (vii)
there are no affiliations, relationships or transactions relating to the Seller
or any Subservicer with respect to any Securitization Transaction and any party
thereto identified by the related Depositor of a type described in Item 1119 of
Regulation AB.
(b) If so requested in writing by the Purchaser or any Depositor on
any date following the date on which information is first provided to the
Purchaser or any Depositor under Section 13.03, the Seller shall, within five
Business Days but in no event later than ten Business Days following such
request, confirm in writing the accuracy of the representations and warranties
set forth in paragraph (a) of this Section or, if any such representation and
warranty is not accurate as of the date of such request, provide reasonably
adequate disclosure of the pertinent facts, in writing, to the requesting party.
Section 13.03 Information to Be Provided by the Seller. In
connection with any Securitization Transaction the Seller shall (i) within five
Business Days but in no event later than ten Business Days following written
request by the Purchaser or any Depositor, provide to the Purchaser and such
Depositor (or cause each Subservicer to provide), in writing and in form and
substance reasonably satisfactory to the Purchaser and such Depositor, the
information and materials specified in paragraphs (a), (c) and (f) of this
Section, and (ii) as promptly as practicable following notice to or discovery by
the Seller, provide to the Purchaser and any Depositor (in writing and in form
and substance reasonably satisfactory to the Purchaser and such Depositor) the
information specified in paragraph (d) of this Section.
(a) If so requested in writing by the Purchaser or any Depositor,
the Seller shall provide such information regarding each Subservicer, as is
reasonably requested for the purpose of compliance with Items 1103(a)(1), 1117
and 1119 of Regulation AB. Such information shall include, at a minimum so long
as required by Regulation AB:
(A) [Reserved];
(B) [Reserved];
(C) a description of any legal or governmental proceedings
pending (or known to be contemplated) against the Seller and each
Subservicer that would be material to securityholders; and
(D) a description of any affiliation or relationship between
the Seller, each Subservicer and any of the following parties to a
Securitization Transaction, as such parties are identified to the
Seller by the Purchaser or any Depositor in writing in advance of
such Securitization Transaction:
(1) the sponsor;
(2) the depositor;
(3) the issuing entity;
(4) any servicer;
(5) any trustee;
(6) any originator;
(7) any significant obligor (as defined in Item 1101(k)
of Regulation AB);
(8) any enhancement or support provider; and
(9) any other material transaction party.
(b) [Reserved].
(c) If so requested in writing by the Purchaser or any Depositor,
the Seller shall provide such information regarding the Seller, as servicer of
the Mortgage Loans, and each Subservicer (each of the Seller and each
Subservicer, for purposes of this paragraph, a "Servicer"), as is requested for
the purpose of compliance with Item 1108 of Regulation AB. Such information
shall include, at a minimum:
(A) the Servicer's form of organization;
(B) a description of how long the Servicer has been servicing
residential mortgage loans; a general discussion of the Servicer's
experience in servicing assets of any type as well as a more
detailed discussion of the Servicer's experience in, and procedures
for, the servicing function it will perform under this Agreement and
any Reconstitution Agreements; information regarding the size,
composition and growth of the Servicer's portfolio of residential
mortgage loans of a type similar to the Mortgage Loans and
information on factors related to the Servicer that may be material,
in the good faith judgment of the Purchaser or any Depositor, to any
analysis of the servicing of the Mortgage Loans or the related asset
backed securities, as applicable, including, without limitation:
(1) whether any prior securitizations of mortgage loans
of a type similar to the Mortgage Loans involving the Servicer
have defaulted or experienced an early amortization or other
performance triggering event because of servicing during the
three year period immediately preceding the related
Securitization Transaction;
(2) the extent of outsourcing the Servicer utilizes;
(3) whether there has been previous disclosure of
material noncompliance with the applicable servicing criteria
with respect to other securitizations of residential mortgage
loans involving the Servicer as a servicer during the three
year period immediately preceding the related Securitization
Transaction;
(4) whether the Servicer has been terminated as servicer
in a residential mortgage loan securitization, either due to a
servicing default or to application of a servicing performance
test or trigger; and
(5) such other information as the Purchaser or any
Depositor may reasonably request for the purpose of compliance
with Item 1108(b)(2) of Regulation AB;
(C) a description of any material changes during the three
year period immediately preceding the related Securitization
Transaction to the Servicer's policies or procedures with respect to
the servicing function it will perform under this Agreement and any
Reconstitution Agreements for mortgage loans of a type similar to
the Mortgage Loans;
(D) information regarding the Servicer's financial condition,
to the extent that there is a material risk that an adverse
financial event or circumstance involving the Servicer could have a
material adverse effect on the performance by the Seller of its
servicing obligations under this Agreement or any Reconstitution
Agreement;
(E) information regarding advances made by the Servicer on the
Mortgage Loans and the Servicer's overall servicing portfolio of
residential mortgage loans for the three year period immediately
preceding the related Securitization Transaction, which may be
limited to a statement by an authorized officer of the Servicer to
the effect that the Servicer has made all advances required to be
made on residential mortgage loans serviced by it during such
period, or, if such statement would not be accurate, information
regarding the percentage and type of advances not made as required,
and the reasons for such failure to advance;
(F) a description of the Servicer's processes and procedures
designed to address any special or unique factors involved in
servicing loans of a similar type as the Mortgage Loans;
(G) a description of the Servicer's processes for handling
delinquencies, losses, bankruptcies and recoveries, such as through
liquidation of mortgaged properties, sale of defaulted mortgage
loans or workouts; and
(H) information as to how the Servicer defines or determines
delinquencies and charge offs, including the effect of any grace
period, re aging, restructuring, partial payments considered current
or other practices with respect to delinquency and loss experience.
(d) If so requested in writing by the Purchaser or any Depositor for
the purpose of satisfying its reporting obligation under the Exchange Act with
respect to any class of asset backed securities, the Seller shall (or shall
cause each Subservicer to) (i) notify the Purchaser and any Depositor in writing
of (A) any litigation or governmental proceedings pending against the Seller or
any Subservicer that would be material to securityholders and (B) any
affiliations or relationships that develop following the closing date of a
Securitization Transaction between the Seller or any Subservicer and any of the
parties specified in clause (D) of paragraph (a) of this Section (and any other
parties identified in writing by the requesting party) with respect to such
Securitization Transaction, but only to the extent that such affiliations or
relationships do not include the Purchaser, Depositor or any of the respective
affiliates of a party and (ii) provide to the Purchaser and any Depositor a
description of such proceedings, affiliations or relationships.
(e) As a condition to the succession to the Seller or any
Subservicer as servicer or subservicer under this Agreement or any
Reconstitution Agreement by any Person (i) into which the Seller or such
Subservicer may be merged or consolidated, or (ii) which may be appointed as a
successor to the Seller or any Subservicer, the Seller shall provide to the
Purchaser and any Depositor, at least 15 calendar days prior to the effective
date of such succession or appointment, (x) written notice to the Purchaser and
any Depositor of such succession or appointment and (y) in writing and in form
and substance reasonably satisfactory to the Purchaser and such Depositor, all
information reasonably requested in writing by the Purchaser or any Depositor in
order to comply with its reporting obligation under Item 6.02 of Form 8 K with
respect to any class of asset backed securities.
(f) In addition to such information as the Seller, as servicer, is
obligated to provide pursuant to other provisions of this Agreement, if so
requested in writing by the Purchaser or any Depositor, the Seller shall provide
such information regarding the performance or servicing of the Mortgage Loans as
is reasonably required by the Purchaser or any Depositor to facilitate
preparation of distribution reports in accordance with Item 1121 of Regulation
AB and to permit the Purchaser or such Depositor to comply with the provisions
of Regulation AB relating to Static Pool Information regarding the performance
of the Mortgage Loans on the basis of the Purchaser's or such Depositor's
reasonable, good faith interpretation of the requirements of Item 1105(a)(1)-(3)
of Regulation AB (including without limitation as to the format and content of
such Static Pool Information). Such information shall be provided concurrently
with the monthly reports otherwise required to be delivered by the Servicer
under this Agreement commencing with the first such report due in connection
with the applicable Securitization Transaction).
Section 13.04 Servicer Compliance Statement. On or before March 10
of each calendar year, commencing in 2007, the Seller shall deliver to the
Purchaser and any Depositor a statement of compliance addressed to the Purchaser
and such Depositor and signed by an authorized officer of the Seller, to the
effect that (i) a review of the Seller's activities during the immediately
preceding calendar year (or applicable portion thereof) and of its performance
under this Agreement and any applicable Reconstitution Agreement during such
period has been made under such officer's supervision, and (ii) to the best of
such officers' knowledge, based on such review, the Seller has fulfilled all of
its obligations under this Agreement and any applicable Reconstitution Agreement
in all material respects throughout such calendar year (or applicable portion
thereof) or, if there has been a failure to fulfill any such obligation in any
material respect, specifically identifying each such failure known to such
officer and the nature and the status thereof.
Section 13.05 Report on Assessment of Compliance and Attestation.
(a) On or before March 10 of each calendar year, commencing in 2007, the Seller
shall:
(i) deliver to the Purchaser and any Depositor a report (in form and
substance reasonably satisfactory to the Purchaser and such Depositor;
provided, however, that such report may be in the form customarily
provided by the Seller, and need not be customized for the Purchaser, such
master servicer or such Depositor) regarding the Seller's assessment of
compliance with the Servicing Criteria during the immediately preceding
calendar year, as required under Rules 13a 18 and 15d 18 of the Exchange
Act and Item 1122 of Regulation AB. Such report shall be addressed to the
Purchaser and such Depositor and signed by an authorized officer of the
Seller, and shall address each of the Servicing Criteria specified on a
certification substantially in the form of Exhibit 12 hereto delivered to
the Purchaser concurrently with the execution of this Agreement;
(ii) deliver to the Purchaser and any Depositor a report of a
registered public accounting firm reasonably acceptable to the Purchaser
and such Depositor that attests to, and reports on, the assessment of
compliance made by the Seller and delivered pursuant to the preceding
paragraph. Such attestation shall be in accordance with Rules 1 02(a)(3)
and 2 02(g) of Regulation S X under the Securities Act and the Exchange
Act;
(iii) cause each Subservicer, and each Subcontractor determined by
the Company pursuant to Section 13.06(b) to be "participating in the
servicing function" within the meaning of Item 1122 of Regulation AB, to
deliver to the Purchaser and any Depositor an assessment of compliance and
accountants' attestation as and when provided in paragraphs (a) and (b) of
this Section; and
(iv) deliver to the Purchaser, any Depositor and any other Person
that will be responsible for signing the certification (a "Sarbanes
Certification") required by Rules 13a 14(d) and 15d 14(d) under the
Exchange Act (pursuant to Section 302 of the Sarbanes Oxley Act of 2002)
on behalf of an asset backed issuer with respect to a Securitization
Transaction a certification in the form attached hereto as Exhibit 11.
The Seller acknowledges that the parties identified in clause
(a)(iv) above may rely on the certification provided by the Seller pursuant to
such clause in signing a Sarbanes Certification and filing such with the
Commission. Neither the Purchaser nor any Depositor will request delivery of a
certification under clause (a)(iv) above unless a Depositor is required under
the Exchange Act to file an annual report on Form 10-K with respect to an
issuing entity whose asset pool includes Mortgage Loans.
(b) Each assessment of compliance provided by a Subservicer pursuant
to Section 13.05(a)(i) shall address each of the Servicing Criteria specified on
a certification substantially in the form of Exhibit 10 hereto delivered to the
Purchaser concurrently with the execution of this Agreement or, in the case of a
Subservicer subsequently appointed as such, on or prior to the date of such
appointment. An assessment of compliance provided by a Subcontractor pursuant to
Section 13.05(a)(iii) need not address any elements of the Servicing Criteria
other than those specified by the Seller pursuant to Section 13.06.
Section 13.06 Use of Subservicers and Subcontractors. The Seller
shall not hire or otherwise utilize the services of any Subservicer to fulfill
any of the obligations of the Seller as servicer under this Agreement or any
Reconstitution Agreement unless the Seller complies with the provisions of
paragraph (a) of this Section. The Seller shall not hire or otherwise utilize
the services of any Subcontractor, and shall not permit any Subservicer to hire
or otherwise utilize the services of any Subcontractor, to fulfill any of the
obligations of the Seller as servicer under this Agreement or any Reconstitution
Agreement unless the Seller complies with the provisions of paragraph (b) of
this Section.
(a) The Seller shall not hire or otherwise utilize the services of
any Subservicer with respect to the Mortgage Loans without giving the Purchaser
or its designee fifteen (15) calendar days' advance written notice of the
effective date of such hiring or utilization of a Subservicer, followed by
written confirmation of such hiring or utilization of a Subservicer on the
effective date of such engagement and indicating the circumstances surrounding
such hiring or utilization. Any notices required by this Section 13.06(a) shall
be sent via telecopier or certified or registered mail to the addresses set
forth below: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Barclays Bank PLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇▇▇, Telecopy: ▇▇▇-▇▇▇-▇▇▇▇ and emailed to:
▇▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, with a copy to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Cadwalader,
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇,
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇, Email: ▇▇▇▇▇▇▇.gambro ▇▇▇.▇▇▇ (or such other address as
such Person may otherwise specify to Seller) to seek the consent of the
Purchaser or any Depositor to the utilization of any Subservicer. The Seller
shall cause any Subservicer used by the Seller (or by any Subservicer) for the
benefit of the Purchaser and any Depositor to comply with the provisions of this
Section and with Sections 13.02, 13.03(c) and (e), 13.04, 13.05 and 13.07 of
this Agreement to the same extent as if such Subservicer were the Seller, and to
provide the information required with respect to such Subservicer under Section
13.03(d) of this Agreement. The Seller shall be responsible for obtaining from
each Subservicer and delivering to the Purchaser and any Depositor any servicer
compliance statement required to be delivered by such Subservicer under Section
13.04, any assessment of compliance and attestation required to be delivered by
such Subservicer under Section 13.05 and any certification required to be
delivered to the Person that will be responsible for signing the Sarbanes
Certification under Section 13.05 as and when required to be delivered.
(b) It shall not be necessary for the Seller to seek the consent of
the Purchaser or any Depositor to the utilization of any Subcontractor. The
Seller shall promptly upon request provide to the Purchaser and any Depositor
(or any designee of the Depositor, such as a master servicer or administrator) a
written description (in form and substance satisfactory to the Purchaser and
such Depositor) of the role and function of each Subcontractor utilized by the
Seller or any Subservicer, specifying (i) the identity of each such
Subcontractor, (ii) which (if any) of such Subcontractors are "participating in
the servicing function" within the meaning of Item 1122 of Regulation AB, and
(iii) which elements of the Servicing Criteria will be addressed in assessments
of compliance provided by each Subcontractor identified pursuant to clause (ii)
of this paragraph.
As a condition to the utilization of any Subcontractor determined to
be "participating in the servicing function" within the meaning of Item 1122 of
Regulation AB, the Seller shall cause any such Subcontractor used by the Seller
(or by any Subservicer) for the benefit of the Purchaser and any Depositor to
comply with the provisions of Sections 13.05 and 13.07 of this Agreement to the
same extent as if such Subcontractor were the Seller. The Seller shall be
responsible for obtaining from each Subcontractor and delivering to the
Purchaser and any Depositor any assessment of compliance and attestation
required to be delivered by such Subcontractor under Section 13.05, in each case
as and when required to be delivered.
Section 13.07 Indemnification; Remedies. (a) The Seller shall
indemnify the Purchaser, each affiliate of the Purchaser, and each of the
following parties participating in a Securitization Transaction: each sponsor
and issuing entity; each Person responsible for the preparation, execution or
filing of any report required to be filed with the Commission with respect to
such Securitization Transaction, or for execution of a certification pursuant to
Rule 13a 14(d) or Rule 15d 14(d) under the Exchange Act with respect to such
Securitization Transaction; each broker dealer acting as underwriter, placement
agent or initial purchaser, each Person who controls any of such parties or the
Depositor (within the meaning of Section 15 of the Securities Act and Section 20
of the Exchange Act); and the respective present and former directors, officers,
employees and agents of each of the foregoing and of the Depositor, and shall
hold each of them harmless from and against any losses, damages, penalties,
fines, forfeitures, legal fees and expenses and related costs, judgments, and
any other costs, fees and expenses that any of them may sustain arising out of
or based upon:
(i) (A) any untrue statement of a material fact contained or alleged
to be contained in any information, report, certification, accountants'
letter or other material provided in written or electronic form under this
Article XIII by or on behalf of the Seller, or provided under this Article
XIII by or on behalf of any Subservicer or Subcontractor (collectively,
the "Servicer Information"), or (B) the omission or alleged omission to
state in the Servicer Information a material fact required to be stated in
the Servicer Information or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, by way of clarification, that clause (B) of this
paragraph shall be construed solely by reference to the Servicer
Information and not to any other information communicated in connection
with a sale or purchase of securities, without regard to whether the
Servicer Information or any portion thereof is presented together with or
separately from such other information;
(ii) any failure by the Seller, any Subservicer or any Subcontractor
to deliver any information, report, certification, accountants' letter or
other material when and as required under this Article XIII, including any
failure by the Seller to identify pursuant to Section 13.06(b) any
Subcontractor "participating in the servicing function" within the meaning
of Item 1122 of Regulation AB; or
(iii) any breach by the Seller of a representation or warranty set
forth in Section 13.02(a) or in a writing furnished pursuant to Section
13.02(b) and made as of a date prior to the closing date of the related
Securitization Transaction, to the extent that such breach is not cured by
such closing date, or any breach by the Seller of a representation or
warranty in a writing furnished pursuant to Section 13.02(b) to the extent
made as of a date subsequent to such closing date.
In the case of any failure of performance described in clause
(a)(ii) of this Section, the Seller shall promptly reimburse the Purchaser, any
Depositor, as applicable, and each Person responsible for the preparation,
execution or filing of any report required to be filed with the Commission with
respect to such Securitization Transaction, or for execution of a certification
pursuant to Rule 13a 14(d) or Rule 15d 14(d) under the Exchange Act with respect
to such Securitization Transaction, for all costs reasonably incurred by each
such party in order to obtain the information, report, certification,
accountants' letter or other material not delivered as required by the Interim
Service, any Subservicer or any Subcontractor.
(b) (i) Any failure by the Seller, any Subservicer or any
Subcontractor to deliver any information, report, certification, accountants'
letter or other material when and as required under this Article XIII or under
Section 34 of the Purchase Agreement, or any breach by the Seller of a
representation or warranty set forth in Section 13.02(a) or in a writing
furnished pursuant to Section 13.02(b) or any breach by the Seller of a
representation or warranty set forth in Section 34.02(a) of the Purchase
Agreement or in a writing furnished pursuant to Section 34.02(b) of the Purchase
Agreement and made as of a date prior to the closing date of the related
Securitization Transaction, to the extent that such breach is not cured by such
closing date, or any breach by the Seller of a representation or warranty in a
writing furnished pursuant to Section 13.02(b) or any breach by the Seller of a
representation or warranty in a writing furnished pursuant to Section 34.02(b)
of the Purchase Agreement to the extent made as of a date subsequent to such
closing date, shall, except as provided in clause (ii) of this paragraph,
immediately and automatically, without notice or grace period, constitute an
Event of Default with respect to the Seller under this Agreement and any
applicable Reconstitution Agreement, and shall entitle the Purchaser or
Depositor, as applicable, in its sole discretion to terminate the rights and
obligations of the Seller as servicer under this Agreement and/or any applicable
Reconstitution Agreement without payment (notwithstanding anything in this
Agreement or any applicable Reconstitution Agreement to the contrary) of any
compensation to the Seller; provided that to the extent that any provision of
this Agreement and/or any applicable Reconstitution Agreement expressly provides
for the survival of certain rights or obligations following termination of the
Seller as servicer, such provision shall be given effect.
(ii) Any failure by the Seller, any Subservicer or any Subcontractor
to deliver any information, report, certification or accountants' letter
when and as required under Section 13.04 or 13.05, including (except as
provided below) any failure by the Seller to identify pursuant to Section
13.06(b) any Subcontractor "participating in the servicing function"
within the meaning of Item 1122 of Regulation AB, which continues
unremedied for ten calendar days after the date on which such information,
report, certification or accountants' letter was required to be delivered
shall constitute an Event of Default with respect to the Seller under this
Agreement and any applicable Reconstitution Agreement, and shall entitle
the Purchaser or Depositor, as applicable, in its sole discretion to
terminate the rights and obligations of the Seller as servicer under this
Agreement and/or any applicable Reconstitution Agreement without payment
(notwithstanding anything in this Agreement to the contrary) of any
compensation to the Seller; provided that to the extent that any provision
of this Agreement and/or any applicable Reconstitution Agreement expressly
provides for the survival of certain rights or obligations following
termination of the Seller as servicer, such provision shall be given
effect.
Neither the Purchaser nor any Depositor shall be entitled to
terminate the rights and obligations of the Seller pursuant to this subparagraph
(b)(ii) if a failure of the Seller to identify a Subcontractor "participating in
the servicing function" within the meaning of Item 1122 of Regulation AB was
attributable solely to the role or functions of such Subcontractor with respect
to mortgage loans other than the Mortgage Loans.
(iii) The Seller shall promptly reimburse the Purchaser (or any
designee of the Purchaser, such as a master servicer) and any Depositor,
as applicable, for all reasonable expenses incurred by the Purchaser (or
such designee) or such Depositor, as such are incurred, in connection with
the termination of the Seller as servicer and the transfer of servicing of
the Mortgage Loans to a successor servicer. The provisions of this
paragraph shall not limit whatever rights the Purchaser or any Depositor
may have under other provisions of this Agreement and/or any applicable
Reconstitution Agreement or otherwise, whether in equity or at law, such
as an action for damages, specific performance or injunctive relief.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have executed this Agreement under
seal as of the date and year first above written.
BARCLAYS BANK PLC
By:
--------------------------------------
Name:
---------------------------------
Title:
--------------------------------
INDYMAC BANK, F.S.B.
By:
--------------------------------------
Name:
---------------------------------
Title:
--------------------------------
EXHIBIT 1
TRIAL BALANCE
EXHIBIT 2
CUSTODIAL ACCOUNT CERTIFICATION
_______ __, ____
The Seller hereby certifies that it has established the account
described below as a Custodial Account pursuant to Section 2.04 of the Servicing
Agreement, dated as of October 1, 2006, between the Seller and Barclays Bank
PLC.
All initially capitalized terms used herein shall have the meanings
ascribed to them in the above-referenced Servicing Agreement.
Title of Account: "IndyMac Bank, F.S.B., in trust for Barclays Bank
PLC as Purchaser of Mortgage Loans."
Account Number: _______________________________________
Address of office or branch
of the Seller at which
Account is maintained: _______________________________________
_________________________________________
Seller
By:______________________________________
Name:____________________________________
Title:___________________________________
Date:____________________________________
EXHIBIT 3
CUSTODIAL ACCOUNT LETTER AGREEMENT
_______ __, _____
To:______________________________
______________________________
______________________________
(the "Depository")
As Seller under the Servicing Agreement, dated as of October 1,
2006, (the "Agreement"), between the Seller and Barclays Bank PLC we hereby
authorize and request you to establish an account, as a Custodial Account
pursuant to Section 2.04 of the Agreement, to be designated "IndyMac Bank,
F.S.B., in trust for Barclays Bank PLC as Purchaser of Mortgage Loans." All
deposits in the account shall be subject to withdrawal therefrom by order signed
by the Seller. You may refuse any deposit which would result in violation of the
requirement that the account be fully insured as described below. This letter is
submitted to you in duplicate. Please execute and return one original to us.
All initially capitalized terms used herein shall have the meanings
ascribed to them in the above-referenced Agreement.
_________________________________________
Seller
By:______________________________________
Name:____________________________________
Title:___________________________________
Date:____________________________________
The undersigned, as Depository, hereby certifies that the above
described account has been established under Account Number __________, at the
office of the Depository indicated above, and agrees to honor withdrawals on
such account as provided above. The full amount deposited at any time in the
account will be insured by the Federal Deposit Insurance Corporation.
_________________________________________
Depository
By:______________________________________
Name:____________________________________
Title:___________________________________
Date:____________________________________
EXHIBIT 4
ESCROW ACCOUNT CERTIFICATION
_________ ___, ____
IndyMac Bank, F.S.B. hereby certifies that it has established the
account described below as an Escrow Account pursuant to Section 2.06 of the
Servicing Agreement, dated as of October 1, 2006, between the Seller and
Barclays Bank PLC.
All initially capitalized terms used herein shall have the meanings
ascribed to them in the above-referenced Servicing Agreement.
Title of Account: "IndyMac Bank, F.S.B., in trust for Barclays Bank
PLC as Purchaser of Mortgage Loans."
Account Number: _______________________________________
Address of office
or branch of the Seller
at which Account is
maintained: _______________________________________
_________________________________________
Seller
By:______________________________________
Name:
Title:
EXHIBIT 5
ESCROW ACCOUNT LETTER AGREEMENT
_______ ___, ____
To:______________________________
______________________________
______________________________
(the "Depository")
As Seller under the Servicing Agreement, dated as of October 1,
2006, (the "Agreement"), between the Seller and Barclays Bank PLC, we hereby
authorize and request you to establish an account, as an Escrow Account pursuant
to Section 2.06 of the Agreement, to be designated as "IndyMac Bank, F.S.B, in
trust for Barclays Bank PLC as Purchaser of Mortgage Loans." All deposits in the
account shall be subject to withdrawal therefrom by order signed by the Seller.
You may refuse any deposit which would result in violation of the requirement
that the account be fully insured as described below. This letter is submitted
to you in duplicate. Please execute and return one original to us.
All initially capitalized terms used herein shall have the meanings
ascribed to tem in the above-referenced Agreement.
_________________________________________
Seller
By:______________________________________
Name:____________________________________
Title:___________________________________
Date:____________________________________
The undersigned, as Depository, hereby certifies that the above
described account has been established under Account Number ______, at the
office of the Depository indicated above, and agrees to honor withdrawals on
such account as provided above. The full amount deposited at any time in the
account will be insured by the Federal Deposit Insurance Corporation.
_________________________________________
Depository
By:______________________________________
Name:____________________________________
Title:___________________________________
Date:____________________________________
EXHIBIT 6
FORM OF MONTHLY REO PROPERTY STATEMENT
EXHIBIT 7
FORM OF LIQUIDATION REPORT
EXHIBIT 8
FORM OF MONTHLY REMITTANCE ADVICE
EXHIBIT 9
FORM OF INDEMNIFICATION AND CONTRIBUTION AGREEMENT
This INDEMNIFICATION AND CONTRIBUTION AGREEMENT ("Agreement"), dated
as of [_______], 200_, among [________________] (the "Depositor"), a
[______________] corporation (the "Depositor"), Barclays Bank PLC Barclays Bank
PLC, a public limited liability company, registered in England and Wales under
company number 1026167 ("Barclays") and IndyMac Bank, F.S.B., a federal savings
bank (the "Servicer" or the "Seller").
W I T N E S S E T H:
--------------------
WHEREAS, the Depositor is acting as depositor and registrant with
respect to the Prospectus, dated [________________], and the Prospectus
Supplement to the Prospectus, [________________] (the "Prospectus Supplement"),
relating to [________________] Certificates (the "Certificates") to be issued
pursuant to a Pooling and Servicing Agreement, dated as of [________________]
(the "P&S"), among the Depositor, as depositor, [________________], as master
servicer (the "Master Servicer"), and [________________], as trustee (the
"Trustee");
WHEREAS, as an inducement to the Depositor to enter into the P&S,
and [____________________] (the "Underwriter[s]") to enter into the Underwriting
Agreement, dated [____________________] (the "Underwriting Agreement") between
the Depositor and the Underwriter[s], Seller has agreed to provide for
indemnification and contribution on the terms and conditions hereinafter set
forth;
WHEREAS, Barclays purchased from Seller certain of the Mortgage
Loans underlying the Certificates (the "Mortgage Loans") pursuant to a Mortgage
Loan Purchase Agreement, dated as of October 1, 2006 (the "Purchase Agreement"),
by and between Barclays and the Seller; and
WHEREAS, pursuant to Section 13 of the Purchase Agreement, the
Seller has agreed to provide indemnification for certain information.
NOW THEREFORE, in consideration of the agreements contained herein,
and other valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the Depositor, Barclays and the Servicer agree as follows:
1. Indemnification and Contribution.
(a) The Servicer agrees to indemnify and hold harmless the
Depositor, Barclays, the Underwriter[s] and their respective affiliates and
their respective present and former directors, officers, employees and agents
and each person, if any, who controls the Depositor, Barclays, the
Underwriter[s] or such affiliates within the meaning of either Section 15 of the
Securities Act of 1933, as amended (the "1933 Act"), or Section 20 of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), against any and
all losses, claims, damages or liabilities, joint or several, to which they or
any of them may become subject under the 1933 Act, the 1934 Act or other federal
or state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based in whole or in part upon any untrue statement or
alleged untrue statement of a material fact contained in the Prospectus
Supplement, ABS Computational and Informational Materials, or in the Free
Writing Prospectus, or any omission or alleged omission to state in the
Prospectus Supplement, ABS Computational and Informational Materials or in the
Free Writing Prospectus a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading, or any such untrue statement or omission or
alleged untrue statement or alleged omission made in any amendment of or
supplement to the Prospectus Supplement, ABS Computational and Informational
Materials or the Free Writing Prospectus and agrees to reimburse the Depositor,
Barclays, the Underwriter[s] or such affiliates and each such officer, director,
employee, agent and controlling person promptly upon demand for any legal or
other expenses reasonably incurred by any of them in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that Servicer shall be liable in any such case only to the extent that any such
loss, claim, damage, liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement or omission or alleged omission
made in reliance upon and in conformity with the Servicer Information. The
foregoing indemnity agreement is
(b) in addition to any liability which Servicer may otherwise have
to the Depositor, Barclays, the Underwriter[s], their affiliates or any such
director, officer, employee, agent or controlling person of the Depositor,
Barclays, the Underwriter[s] or their respective affiliates.
As used herein:
"Servicer Information" means any information relating to Servicer,
the Mortgage Loans and/or the servicing guidelines relating to the Mortgage
Loans set forth in the Prospectus Supplement, the Offering Circular, ABS
Computational and Informational Materials or the Free Writing Prospectus [and
static pool information regarding mortgage loans originated or acquired by the
Servicer and included in the Prospectus Supplement, the Offering Circular or the
ABS Computational and Informational Materials or the Free Writing Prospectus
[incorporated by reference from the Servicer's website located at ____________].
"ABS Informational and Computational Material" means any written
communication as defined in Item 1101(a) of Regulation AB under the 1933 Act and
the 1934 Act, as amended from time to time.
"Free Writing Prospectus" means any written communication that
constitutes a "free writing prospectus," as defined in Rule 405 under the 1933
Act.
(c) Promptly after receipt by any indemnified party under this
Section 1 of notice of any claim or the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against any
indemnifying party under this Section 1, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 1 except to the extent it has
been materially prejudiced by such failure; and provided, further, however, that
the failure to notify any indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Section 1.
If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, except as provided in
the following paragraph, the indemnifying party shall not be liable to the
indemnified party under this Section 1 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation.
Any indemnified party shall have the right to employ separate
counsel in any such action and to participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such indemnified
party unless: (i) the employment thereof has been specifically authorized by the
indemnifying party in writing; (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
necessary or appropriate for such indemnified party to employ separate counsel;
or (iii) the indemnifying party has failed to assume the defense of such action
and employ counsel reasonably satisfactory to the indemnified party, in which
case, if such indemnified party notifies the indemnifying party in writing that
it elects to employ separate counsel at the expense of the indemnifying party,
the indemnifying party shall not have the right to assume the defense of such
action on behalf of such indemnified party, it being understood, however, the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to local counsel) at any time for all such indemnified parties.
Each indemnified party, as a condition of the indemnity agreements
contained in this Section 1, shall cooperate with the indemnifying party in the
defense of any such action or claim. No indemnifying party shall be liable for
any settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with its written
consent or if there be a final judgment for the plaintiff in any such action,
the indemnifying party agrees to indemnify and hold harmless any indemnified
party from and against any loss or liability by reason of such settlement or
judgment.
Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for reasonable fees and expenses of counsel, the indemnifying
party agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into more
than 30 days after receipt by such indemnifying party of the aforesaid request
and (ii) such indemnifying party shall not have reimbursed the indemnified party
in accordance with such request prior to the date of such settlement.
(d) If the indemnification provided for in this Section 1 is
unavailable to an indemnified party, then the indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities, in such proportion as is appropriate to reflect the relative fault
of the indemnifying party and the indemnified party, respectively, in connection
with the statements or omissions that result in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the indemnified party and indemnifying party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by such parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission and any other equitable considerations.
(e) The indemnity and contribution agreements contained in this
Section 1 and the representations and warranties set forth in Section 2 shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by the Depositor, Barclays, the
Underwriter[s], their respective affiliates, directors, officers, employees or
agents or any person controlling the Depositor, Barclays, the Underwriter[s] or
any such affiliate, and (iii) acceptance of and payment for any of the Offered
Certificates.
2. Representations and Warranties. Servicer represents and warrants
that:
(i) Servicer is validly existing and in good standing under the laws
of its jurisdiction of formation or incorporation, as applicable, and has
full power and authority to own its assets and to transact the business in
which it is currently engaged. Servicer is duly qualified to do business
and is in good standing in each jurisdiction in which the character of the
business transacted by it or any properties owned or leased by it requires
such qualification and in which the failure so to qualify would have a
material adverse effect on the business, properties, assets or condition
(financial or otherwise) of Servicer;
(ii) Servicer is not required to obtain the consent of any other
person or any consent, license, approval or authorization from, or
registration or declaration with, any governmental authority, bureau or
agency in connection with the execution, delivery, performance, validity
or enforceability of this Agreement;
(iii) the execution, delivery and performance of this Agreement by
Servicer will not violate any provision of any existing law or regulation
or any order decree of any court applicable to Servicer or any provision
of the charter or bylaws of Servicer, or constitute a material breach of
any mortgage, indenture, contract or other agreement to which Servicer is
a party or by which it may be bound;
(iv) (a) no proceeding of or before any court, tribunal or
governmental body is currently pending or, (b) to the knowledge of
Servicer, threatened against Servicer or any of its properties or with
respect to this Agreement or the Offered Certificates, in either case,
which would have a material adverse effect on the business, properties,
assets or condition (financial or otherwise) of Servicer;
(v) Servicer has full power and authority to make, execute, deliver
and perform this Agreement and all of the transactions contemplated
hereunder, and has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement. When executed and
delivered, this Agreement will constitute the legal, valid and binding
obligation of each of Servicer enforceable in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement
of creditors' rights generally, by the availability of equitable remedies,
and by limitations of public policy under applicable securities law as to
rights of indemnity and contribution thereunder; and
(vi) this Agreement has been duly executed and delivered by
Servicer.
3. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to Servicer, will be mailed, delivered
or telegraphed and confirmed to IndyMac Bank, F.S.B., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; if sent to Barclays, will be mailed,
delivered or telegraphed and confirmed to Barclays Bank PLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Vice President; if to the Depositor, will
be mailed, delivered or telegraphed and confirmed to [____________________]; or
if to the Underwriter[s], will be mailed, delivered or telegraphed and confirmed
to [_____________________].
4. Miscellaneous. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York without giving effect to
the conflict of laws provisions thereof. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their successors and
assigns and the controlling persons referred to herein, and no other person
shall have any right or obligation hereunder. Neither this Agreement nor any
term hereof may be changed, waived, discharged or terminated orally, but only by
an instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought. This Agreement may be
executed in counterparts, each of which when so executed and delivered shall be
considered an original, and all such counterparts shall constitute one and the
same instrument. Capitalized terms used but not defined herein shall have the
meanings provided in the P&S.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective officers hereunto duly authorized, this
__th day of [_____________].
[DEPOSITOR]
By:
--------------------------------------
Name:
Title:
BARCLAYS BANK PLC
By:
--------------------------------------
Name:
Title:
INDYMAC BANK, F.S.B.
By:
--------------------------------------
Name:
Title:
EXHIBIT 10
[RESERVED]
EXHIBIT 11
ANNUAL CERTIFICATION
Re: The [ ] agreement dated as of [ ], 200[ ] (the "Agreement"), among
[IDENTIFY PARTIES]
------------------------------------------------------------------
I, ________________________________, the _______________________ of
IndyMac Bank, F.S.B. (the "Company"), certify to Barclays Bank PLC, [the
Depositor], and the [Master Servicer] [Securities Administrator] [Trustee], and
their officers, with the knowledge and intent that they will rely upon this
certification, that:
First, I have reviewed the servicer compliance statement of the
Company provided in accordance with Item 1123 of Regulation AB (the
"Compliance Statement"), the report on assessment of the Company's
compliance with the servicing criteria set forth in Item 1122(d) of
Regulation AB (the "Servicing Criteria"), provided in accordance with
Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934, as amended
(the "Exchange Act") and Item 1122 of Regulation AB (the "Servicing
Assessment"), the registered public accounting firm's attestation report
provided in accordance with Rules 13a-18 and 15d-18 under the Exchange Act
and Section 1122(b) of Regulation AB (the "Attestation Report"), and all
servicing reports, officer's certificates and other information relating
to the servicing of the Mortgage Loans by the Company during 200[ ] that
were delivered by the Company to the [Depositor] [Master Servicer]
[Securities Administrator] [Trustee] pursuant to the Agreement
(collectively, the "Company Servicing Information");
Second, Based on my knowledge, the Company Servicing Information,
taken as a whole, does not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements made, in
the light of the circumstances under which such statements were made, not
misleading with respect to the period of time covered by the Company
Servicing Information;
Third, Based on my knowledge, all of the Company Servicing
Information required to be provided by the Company under the Agreement has
been provided to the [Depositor] [Master Servicer] [Securities
Administrator] [Trustee];
Fourth, I am responsible for reviewing the activities performed by
the Company as servicer under the Agreement, and based on my knowledge and
the compliance review conducted in preparing the Compliance Statement and
except as disclosed in the Compliance Statement, the Servicing Assessment
or the Attestation Report, the Company has fulfilled its obligations under
the Agreement, in all material respects; and
Fifth, The Compliance Statement required to be delivered by the
Company pursuant to the Agreement, and the Servicing Assessment and
Attestation Report required to be provided by the Company and by any
Subservicer or Subcontractor pursuant to the Agreement, have been provided
to the [Depositor] [Master Servicer]. Any material instances of
noncompliance described in such reports have been disclosed to the
[Depositor] [Master Servicer]. Any material instance of noncompliance with
the Servicing Criteria has been disclosed in such reports.
EXHIBIT 12
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by [the Seller]
[Subservicer] shall address, at a minimum, the criteria identified as below as
"Applicable Servicing Criteria":
Applicable
Servicing
Servicing Criteria Criteria
--------------------------------------------------------------------------------
Reference Criteria
--------------------------------------------------------------------------------
General Servicing Considerations
--------------------------------------------------------------------------------
1122(d)(1)(i) Policies and procedures are instituted to monitor
any performance or other triggers and events of
default in accordance with the transaction
agreements.
--------------------------------------------------------------------------------
1122(d)(1)(ii) If any material servicing activities are outsourced
to third parties, policies and procedures are
instituted to monitor the third party's performance
and compliance with such servicing activities.
--------------------------------------------------------------------------------
1122(d)(1)(iii) Any requirements in the transaction agreements to
maintain a back-up servicer for the mortgage loans
are maintained.
--------------------------------------------------------------------------------
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is
in effect on the party participating in the
servicing function throughout the reporting period
in the amount of coverage required by and otherwise
in accordance with the terms of the transaction
agreements.
--------------------------------------------------------------------------------
Cash Collection and Administration
--------------------------------------------------------------------------------
1122(d)(2)(i) Payments on mortgage loans are deposited into the
appropriate custodial bank accounts and related
bank clearing accounts no more than two business
days following receipt, or such other number of
days specified in the transaction agreements.
--------------------------------------------------------------------------------
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of
an obligor or to an investor are made only by
authorized personnel.
--------------------------------------------------------------------------------
1122(d)(2)(iii) Advances of funds or guarantees regarding
collections, cash flows or distributions, and any
interest or other fees charged for such advances,
are made, reviewed and approved as specified in the
transaction agreements.
--------------------------------------------------------------------------------
1122(d)(2)(iv) The related accounts for the transaction, such as
cash reserve accounts or accounts established as a
form of overcollateralization, are separately
maintained (e.g., with respect to commingling of
cash) as set forth in the transaction agreements.
--------------------------------------------------------------------------------
1122(d)(2)(v) Each custodial account is maintained at a federally
insured depository institution as set forth in the
transaction agreements. For purposes of this
criterion, "federally insured depository
institution" with respect to a foreign financial
institution means a foreign financial institution
that meets the requirements of Rule 13k-1(b)(1) of
the Securities Exchange Act.
--------------------------------------------------------------------------------
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent
unauthorized access.
--------------------------------------------------------------------------------
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for
all asset-backed securities related bank accounts,
including custodial accounts and related bank
clearing accounts. These reconciliations are (A)
mathematically accurate; (B) prepared within 30
calendar days after the bank statement cutoff date,
or such other number of days specified in the
transaction agreements; (C) reviewed and approved
by someone other than the person who prepared the
reconciliation; and (D) contain explanations for
reconciling items. These reconciling items are
resolved within 90 calendar days of their original
identification, or such other number of days
specified in the transaction agreements.
--------------------------------------------------------------------------------
Investor Remittances and Reporting
--------------------------------------------------------------------------------
1122(d)(3)(i) Reports to investors, including those to be filed
with the Commission, are maintained in accordance
with the transaction agreements and applicable
Commission requirements. Specifically, such reports
(A) are prepared in accordance with timeframes and
other terms set forth in the transaction
agreements; (B) provide information calculated in
accordance with the terms specified in the
transaction agreements; (C) are filed with the
Commission as required by its rules and
regulations; and (D) agree with investors' or the
trustee's records as to the total unpaid principal
balance and number of mortgage loans serviced by
the Servicer.
--------------------------------------------------------------------------------
1122(d)(3)(ii) Amounts due to investors are allocated and remitted
in accordance with timeframes, distribution
priority and other terms set forth in the
transaction agreements.
--------------------------------------------------------------------------------
1122(d)(3)(iii) Disbursements made to an investor are posted within
two business days to the Servicer's investor
records, or such other number of days specified in
the transaction agreements.
--------------------------------------------------------------------------------
1122(d)(3)(iv) Amounts remitted to investors per the investor
reports agree with cancelled checks, or other form
of payment, or custodial bank statements.
--------------------------------------------------------------------------------
Pool Asset Administration
--------------------------------------------------------------------------------
1122(d)(4)(i) Collateral or security on mortgage loans is
maintained as required by the transaction
agreements or related mortgage loan documents.
--------------------------------------------------------------------------------
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded
as required by the transaction agreements
--------------------------------------------------------------------------------
1122(d)(4)(iii) Any additions, removals or substitutions to the
asset pool are made, reviewed and approved in
accordance with any conditions or requirements in
the transaction agreements.
--------------------------------------------------------------------------------
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs,
made in accordance with the related mortgage loan
documents are posted to the Servicer's obligor
records maintained no more than two business days
after receipt, or such other number of days
specified in the transaction agreements, and
allocated to principal, interest or other items
(e.g., escrow) in accordance with the related
mortgage loan documents.
--------------------------------------------------------------------------------
1122(d)(4)(v) The Servicer's records regarding the mortgage loans
agree with the Servicer's records with respect to
an obligor's unpaid principal balance.
--------------------------------------------------------------------------------
1122(d)(4)(vi) Changes with respect to the terms or status of an
obligor's mortgage loans (e.g., loan modifications
or re-agings) are made, reviewed and approved by
authorized personnel in accordance with the
transaction agreements and related pool asset
documents.
--------------------------------------------------------------------------------
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g.,
forbearance plans, modifications and deeds in lieu
of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded
in accordance with the timeframes or other
requirements established by the transaction
agreements.
--------------------------------------------------------------------------------
1122(d)(4)(viii) Records documenting collection efforts are
maintained during the period a mortgage loan is
delinquent in accordance with the transaction
agreements. Such records are maintained on at least
a monthly basis, or such other period specified in
the transaction agreements, and describe the
entity's activities in monitoring delinquent
mortgage loans including, for example, phone calls,
letters and payment rescheduling plans in cases
where delinquency is deemed temporary (e.g.,
illness or unemployment).
--------------------------------------------------------------------------------
1122(d)(4)(ix) Adjustments to interest rates or rates of return
for mortgage loans with variable rates are computed
based on the related mortgage loan documents.
--------------------------------------------------------------------------------
1122(d)(4)(x) Regarding any funds held in trust for an obligor
(such as escrow accounts): (A) such funds are
analyzed, in accordance with the obligor's mortgage
loan documents, on at least an annual basis, or
such other period specified in the transaction
agreements; (B) interest on such funds is paid, or
credited, to obligors in accordance with applicable
mortgage loan documents and state laws; and (C)
such funds are returned to the obligor within 30
calendar days of full repayment of the related
mortgage loans, or such other number of days
specified in the transaction agreements.
--------------------------------------------------------------------------------
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax
or insurance payments) are made on or before the
related penalty or expiration dates, as indicated
on the appropriate bills or notices for such
payments, provided that such support has been
received by the servicer at least 30 calendar days
prior to these dates, or such other number of days
specified in the transaction agreements.
--------------------------------------------------------------------------------
1122(d)(4)(xii) Any late payment penalties in connection with any
payment to be made on behalf of an obligor are paid
from the servicer's funds and not charged to the
obligor, unless the late payment was due to the
obligor's error or omission.
--------------------------------------------------------------------------------
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are
posted within two business days to the obligor's
records maintained by the servicer, or such other
number of days specified in the transaction
agreements.
--------------------------------------------------------------------------------
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible
accounts are recognized and recorded in accordance
with the transaction agreements.
--------------------------------------------------------------------------------
1122(d)(4)(xv) Any external enhancement or other support,
identified in Item 1114(a)(1) through (3) or Item
1115 of Regulation AB, is maintained as set forth
in the transaction agreements.
--------------------------------------------------------------------------------
EXHIBIT N
(Reserved)
EXHIBIT O
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by [the Securities Administrator],
[the Master Servicer], [each Custodian], [the Servicer], [each Subservicer] and
[each Subcontractor] shall address, at a minimum, the criteria identified as
below as "Applicable Servicing Criteria." The responsibilities set forth herein
may be amended without amending the Pooling and Servicing Agreement upon mutual
agreement among the applicable party requesting such amendment and the other
parties to the Agreement.
----------------------------------------------------------------------------------------------------
APPLICABLE SERVICING
SERVICING CRITERIA CRITERIA
----------------------------------------------------------------------------------------------------
Reference Criteria
---------------- -------------------------------------------------------- -------------------------
General Servicing Considerations
---------------- -------------------------------------------------------- -------------------------
Policies and procedures are instituted to monitor any
performance or other triggers and events of default in Securities
1122(d)(1)(i) accordance with the transaction agreements. Administrator/Servicer
---------------- -------------------------------------------------------- -------------------------
If any material servicing activities are outsourced to
third parties, policies and procedures are instituted
to monitor the third party's performance and Securities
1122(d)(1)(ii) compliance with such servicing activities. Administrator/Servicer
---------------- -------------------------------------------------------- -------------------------
Any requirements in the transaction agreements to
maintain a back-up servicer for the mortgage loans are
1122(d)(1)(iii) maintained. N/A
---------------- -------------------------------------------------------- -------------------------
A fidelity bond and errors and omissions policy is in
effect on the party participating in the servicing
function throughout the reporting period in the amount
of coverage required by and otherwise in accordance Servicer/Master Servicer
1122(d)(1)(iv) with the terms of the transaction agreements.
----------------------------------------------------------------------------------------------------
Cash Collection and Administration
----------------------------------------------------------------------------------------------------
Payments on mortgage loans are deposited into the
appropriate custodial bank accounts and related bank
clearing accounts no more than two business days
following receipt, or such other number of days Servicer/Master Servicer
1122(d)(2)(i) specified in the transaction agreements.
---------------- -------------------------------------------------------- -------------------------
Disbursements made via wire transfer on behalf of an Servicer/Securities
obligor or to an investor are made only by authorized Administrator/Master
1122(d)(2)(ii) personnel. Servicer
---------------- -------------------------------------------------------- -------------------------
Advances of funds or guarantees regarding collections,
cash flows or distributions, and any interest or other
fees charged for such advances, are made, reviewed and
1122(d)(2)(iii) approved as specified in the transaction agreements. Servicer/Master Servicer
---------------- -------------------------------------------------------- -------------------------
The related accounts for the transaction, such as cash
reserve accounts or accounts established as a form of Servicer/Securities
overcollateralization, are separately maintained Administrator/Master
(e.g., with respect to commingling of cash) as set Servicer
1122(d)(2)(iv) forth in the transaction agreements.
---------------- -------------------------------------------------------- -------------------------
Each custodial account is maintained at a federally
insured depository institution as set forth in the
transaction agreements. For purposes of this
criterion, "federally insured depository institution"
with respect to a foreign financial institution means Servicer/Securities
a foreign financial institution that meets the Administrator/Master
requirements of Rule 13k-1(b)(1) of the Securities Servicer
1122(d)(2)(v) Exchange Act.
---------------- -------------------------------------------------------- -------------------------
Servicer/Securities
Unissued checks are safeguarded so as to prevent Administrator/Master
1122(d)(2)(vi) unauthorized access. Servicer
---------------- -------------------------------------------------------- -------------------------
Reconciliations are prepared on a monthly basis for
all asset-backed securities related bank accounts,
including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically
accurate; (B) prepared within 30 calendar days after
the bank statement cutoff date, or such other number
of days specified in the transaction agreements; (C)
reviewed and approved by someone other than the person
who prepared the reconciliation; and (D) contain Servicer/Securities
explanations for reconciling items. These reconciling Administrator/Master
items are resolved within 90 calendar days of their Servicer
original identification, or such other number of days
1122(d)(2)(vii) specified in the transaction agreements.
----------------------------------------------------------------------------------------------------
Investor Remittances and Reporting
----------------------------------------------------------------------------------------------------
Reports to investors, including those to be filed with
the Commission, are maintained in accordance with the
transaction agreements and applicable Commission
requirements. Specifically, such reports (A) are
prepared in accordance with timeframes and other terms
set forth in the transaction agreements; (B) provide
information calculated in accordance with the terms
specified in the transaction agreements; (C) are filed
with the Commission as required by its rules and Securities
regulations; and (D) agree with investors' or the Administrator/Servicer/
securities administrator's records as to the total Master Servicer
unpaid principal balance and number of mortgage loans
1122(d)(3)(i) serviced by the Servicer.
---------------- -------------------------------------------------------- -------------------------
Amounts due to investors are allocated and remitted in Securities
accordance with timeframes, distribution priority and Administrator/Servicer/
1122(d)(3)(ii) other terms set forth in the transaction agreements. Master Servicer
---------------- -------------------------------------------------------- -------------------------
Disbursements made to an investor are posted within
two business days to the Servicer's investor records, Securities
or such other number of days specified in the Administrator/Servicer/
1122(d)(3)(iii) transaction agreements. Master Servicer
---------------- -------------------------------------------------------- -------------------------
Amounts remitted to investors per the investor reports Securities
agree with cancelled checks, or other form of payment, Administrator/Servicer/
1122(d)(3)(iv) or custodial bank statements. Master Servicer
----------------------------------------------------------------------------------------------------
Pool Asset Administration
----------------------------------------------------------------------------------------------------
Collateral or security on mortgage loans is
maintained as required by the transaction agreements Custodian/ Securities
1122(d)(4)(i) or related mortgage loan documents. Administrator/Servicer
---------------- -------------------------------------------------------- -------------------------
Mortgage loan and related documents are safeguarded as Custodian/Securities
1122(d)(4)(ii) required by the transaction agreements Administrator/Servicer
---------------- -------------------------------------------------------- -------------------------
Any additions, removals or substitutions to the asset
pool are made, reviewed and approved in accordance
with any conditions or requirements in the transaction
1122(d)(4)(iii) agreements. Servicer
---------------- -------------------------------------------------------- -------------------------
Payments on mortgage loans, including any payoffs,
made in accordance with the related mortgage loan
documents are posted to the Servicer's obligor records
maintained no more than two business days after
receipt, or such other number of days specified in the
transaction agreements, and allocated to principal,
interest or other items (e.g., escrow) in accordance Servicer
1122(d)(4)(iv) with the related mortgage loan documents.
---------------- -------------------------------------------------------- -------------------------
The Servicer's records regarding the mortgage loans
agree with the Servicer's records with respect to an
1122(d)(4)(v) obligor's unpaid principal balance. Servicer
---------------- -------------------------------------------------------- -------------------------
Changes with respect to the terms or status of an
obligor's mortgage loans (e.g., loan modifications or
re-agings) are made, reviewed and approved by
authorized personnel in accordance with the
transaction agreements and related pool asset Servicer
1122(d)(4)(vi) documents.
---------------- -------------------------------------------------------- -------------------------
Loss mitigation or recovery actions (e.g., forbearance
plans, modifications and deeds in lieu of foreclosure,
foreclosures and repossessions, as applicable) are
initiated, conducted and concluded in accordance with
the timeframes or other requirements established by Servicer
1122(d)(4)(vii) the transaction agreements.
---------------- -------------------------------------------------------- -------------------------
Records documenting collection efforts are maintained
during the period a mortgage loan is delinquent in
accordance with the transaction agreements. Such
records are maintained on at least a monthly basis, or
such other period specified in the transaction
agreements, and describe the entity's activities in
monitoring delinquent mortgage loans including, for
example, phone calls, letters and payment rescheduling Servicer
plans in cases where delinquency is deemed temporary
1122(d)(4)(viii) (e.g., illness or unemployment).
---------------- -------------------------------------------------------- -------------------------
Adjustments to interest rates or rates of return for
mortgage loans with variable rates are computed based
1122(d)(4)(ix) on the related mortgage loan documents. Servicer
---------------- -------------------------------------------------------- -------------------------
Regarding any funds held in trust for an obligor (such
as escrow accounts): (A) such funds are analyzed, in
accordance with the obligor's mortgage loan documents,
on at least an annual basis, or such other period
specified in the transaction agreements; (B) interest
on such funds is paid, or credited, to obligors in
accordance with applicable mortgage loan documents and
state laws; and (C) such funds are returned to the
obligor within 30 calendar days of full repayment of Servicer
the related mortgage loans, or such other number of
1122(d)(4)(x) days specified in the transaction agreements.
---------------- -------------------------------------------------------- -------------------------
Payments made on behalf of an obligor (such as tax or
insurance payments) are made on or before the related
penalty or expiration dates, as indicated on the
appropriate bills or notices for such payments,
provided that such support has been received by the
servicer at least 30 calendar days prior to these
dates, or such other number of days specified in the Servicer
1122(d)(4)(xi) transaction agreements.
---------------- -------------------------------------------------------- -------------------------
Any late payment penalties in connection with any
payment to be made on behalf of an obligor are paid
from the servicer's funds and not charged to the
obligor, unless the late payment was due to the Servicer
1122(d)(4)(xii) obligor's error or omission.
---------------- -------------------------------------------------------- -------------------------
Disbursements made on behalf of an obligor are posted
within two business days to the obligor's records
maintained by the servicer, or such other number of Servicer
1122(d)(4)(xiii) days specified in the transaction agreements.
---------------- -------------------------------------------------------- -------------------------
Delinquencies, charge-offs and uncollectible accounts
are recognized and recorded in accordance with the
1122(d)(4)(xiv) transaction agreements. Servicer
---------------- -------------------------------------------------------- -------------------------
Any external enhancement or other support, identified
in Item 1114(a)(1) through (3) or Item 1115 of
Regulation AB, is maintained as set forth in the Securities Administrator
1122(d)(4)(xv) transaction agreements.
----------------- ------------------------------------------------------- -------------------------
EXHIBIT P
ADDITIONAL FORM 10-D DISCLOSURE
--------------------------------------------------------------------------------
ADDITIONAL FORM 10-D DISCLOSURE
--------------------------------------------------------------------------------
Item on Form 10-D Party Responsible
----------------------------------------------- --------------------------------
Item 1: Distribution and Pool Performance
Information
----------------------------------------------- --------------------------------
Information included in the Monthly Statement Master Servicer
Servicer
Securities Administrator
----------------------------------------------- --------------------------------
Any information required by 1121 which is NOT Depositor
included on the Monthly Statement
----------------------------------------------- --------------------------------
Item 2: Legal Proceedings
Any legal proceeding pending against the
following entities or their respective
property, that is material to
Certificateholders, including any proceeding
known to be contemplated by governmental
authorities:
----------------------------------------------- --------------------------------
o Issuing Entity (Trust Fund) Trustee, Master Servicer,
Securities
Administrator and
Depositor
----------------------------------------------- --------------------------------
o Purchaser (Seller) Seller (if a party to the
Pooling and Servicing
Agreement) or Depositor
----------------------------------------------- --------------------------------
o Depositor Depositor
----------------------------------------------- --------------------------------
o Trustee Trustee
----------------------------------------------- --------------------------------
o Securities Administrator Securities Administrator
----------------------------------------------- --------------------------------
o Master Servicer Master Servicer
----------------------------------------------- --------------------------------
o Custodian Custodian
----------------------------------------------- --------------------------------
o 1110(b) Originator Depositor
----------------------------------------------- --------------------------------
o Any 1108(a)(2) Servicer (other than the Servicer
Master Servicer or Securities Administrator)
----------------------------------------------- --------------------------------
o Any other party contemplated by 1100(d)(1) Depositor
----------------------------------------------- --------------------------------
Item 3: Sale of Securities and Use of Proceeds Depositor
Information from Item 2(a) of Part II of Form
10-Q:
With respect to any sale of securities by the
sponsor, depositor or issuing entity, that are
backed by the same asset pool or are otherwise
issued by the issuing entity, whether or not
registered, provide the sales and use of
proceeds information in Item 701 of Regulation
S-K. Pricing information can be omitted if
securities were not registered.
----------------------------------------------- --------------------------------
Item 4: Defaults Upon Senior Securities Securities Administrator
Trustee
Information from Item 3 of Part II of Form
10-Q:
Report the occurrence of any Event of Default
(after expiration of any grace period and
provision of any required notice)
----------------------------------------------- --------------------------------
Item 5: Submission of Matters to a Vote of Securities Administrator
Security Holders Trustee
Information from Item 4 of Part II
of Form 10-Q
----------------------------------------------- --------------------------------
Item 6: Significant Obligors of Pool Assets Depositor
Item 1112(b) - Significant Obligor Financial
Information*
----------------------------------------------- --------------------------------
*This information need only be reported on the
Form 10-D for the distribution period in which
updated information is required pursuant to
the Item.
----------------------------------------------- --------------------------------
Item 7: Significant Enhancement Provider
Information
Item 1114(b)(2) - Credit Enhancement Provider
Financial Information*
----------------------------------------------- --------------------------------
o Determining applicable disclosure threshold Depositor
----------------------------------------------- --------------------------------
o Requesting required financial information Depositor
(including any required accountants' consent
to the use thereof) or effecting incorporation
by reference
----------------------------------------------- --------------------------------
Item 1115(b) - Derivative Counterparty
Financial Information*
----------------------------------------------- --------------------------------
o Determining current maximum probable exposure Depositor
----------------------------------------------- --------------------------------
o Determining current significance percentage Depositor
----------------------------------------------- --------------------------------
o Requesting required financial information Depositor
(including any required accountants' consent
to the use thereof) or effecting incorporation
by reference
----------------------------------------------- --------------------------------
*This information need only be reported on the
Form 10-D for the distribution period in which
updated information is required pursuant to
the Items.
----------------------------------------------- --------------------------------
Item 8: Other Information Any party responsible
for the applicable
Form 8-K Disclosure item
Disclose any information required to be
reported on Form 8-K during the period covered
by the Form 10-D but not reported
----------------------------------------------- --------------------------------
Item 9: Exhibits
----------------------------------------------- --------------------------------
Monthly Statement to Certificateholders Securities Administrator
----------------------------------------------- --------------------------------
Exhibits required by Item 601 of Regulation Depositor
S-K, such as material agreements
--------------------------------------------------------------------------------
EXHIBIT Q
ADDITIONAL FORM 10-K DISCLOSURE
--------------------------------------------------------------------------------
ADDITIONAL FORM 10-K DISCLOSURE
----------------------------------------------- --------------------------------
Item on Form 10-K Party Responsible
----------------------------------------------- --------------------------------
Item 1B: Unresolved Staff Comments Depositor
----------------------------------------------- --------------------------------
Item 9B: Other Information Any party responsible for
Disclose any information required to be disclosure items on
reported on Form 8-K during the fourth quarter Form 8-K
covered by the Form 10-K but not reported
----------------------------------------------- --------------------------------
Item 15: Exhibits, Financial Statement Securities Administrator
Schedules Depositor
----------------------------------------------- --------------------------------
Reg AB Item 1112(b): Significant Obligors of
Pool Assets
----------------------------------------------- --------------------------------
Significant Obligor Financial Information* Depositor
----------------------------------------------- --------------------------------
*This information need only be reported on the
Form 10-K if updated information is required
pursuant to the Item.
----------------------------------------------- --------------------------------
Reg AB Item 1114(b)(2): Credit Enhancement
Provider Financial Information
----------------------------------------------- --------------------------------
o Determining applicable disclosure threshold Depositor
----------------------------------------------- --------------------------------
o Requesting required financial information Depositor
(including any required accountants' consent
to the use thereof) or effecting incorporation
by reference
----------------------------------------------- --------------------------------
*This information need only be reported on the
Form 10-K if updated information is required
pursuant to the Item.
----------------------------------------------- --------------------------------
Reg AB Item 1115(b): Derivative Counterparty
Financial Information
----------------------------------------------- --------------------------------
o Determining current maximum probable exposure Depositor
----------------------------------------------- --------------------------------
o Determining current significance percentage Depositor
----------------------------------------------- --------------------------------
o Requesting required financial information Depositor
(including any required accountants' consent
to the use thereof) or effecting incorporation
by reference
----------------------------------------------- --------------------------------
*This information need only be reported on the
Form 10-K if updated information is required
pursuant to the Item.
----------------------------------------------- --------------------------------
Reg AB Item 1117: Legal Proceedings
Any legal proceeding pending against the
following entities or their respective
property, that is material to
Certificateholders, including any proceeding
known to be contemplated by governmental
authorities:
----------------------------------------------- --------------------------------
o Issuing Entity (Trust Fund) Trustee, Master Servicer,
Securities Administrator
and Depositor
----------------------------------------------- --------------------------------
o Purchaser (Seller) Seller (if a party to the
Pooling and Servicing
Agreement) or Depositor
----------------------------------------------- --------------------------------
o Depositor Depositor
----------------------------------------------- --------------------------------
o Trustee Trustee
----------------------------------------------- --------------------------------
o Securities Administrator Securities Administrator
----------------------------------------------- --------------------------------
o Master Servicer Master Servicer
----------------------------------------------- --------------------------------
o Custodian Custodian
----------------------------------------------- --------------------------------
o 1110(b) Originator Depositor
----------------------------------------------- --------------------------------
o Any 1108(a)(2) Servicer (other than the Servicer
Master Servicer or Securities Administrator)
----------------------------------------------- --------------------------------
o Any other party contemplated by 1100(d)(1) Depositor
----------------------------------------------- --------------------------------
Reg AB Item 1119: Affiliations and
Relationships
----------------------------------------------- --------------------------------
Whether (a) the Purchaser (Seller), Depositor Depositor as to (a)
or Issuing Entity is an affiliate of the Purchaser/Seller as to (a)
following parties, and (b) to the extent known
and material, any of the following parties are
affiliated with one another:
----------------------------------------------- --------------------------------
o Master Servicer Master Servicer
----------------------------------------------- --------------------------------
o Securities Administrator Securities Administrator
----------------------------------------------- --------------------------------
o Trustee Trustee
----------------------------------------------- --------------------------------
o Any other 1108(a)(3) servicer Servicer
----------------------------------------------- --------------------------------
o Any 1110 Originator Depositor/Purchaser
----------------------------------------------- --------------------------------
o Any 1112(b) Significant Obligor Depositor/Purchaser
----------------------------------------------- --------------------------------
o Any 1114 Credit Enhancement Provider Depositor/Purchaser
----------------------------------------------- --------------------------------
o Any 1115 Derivate Counterparty Provider Depositor/Purchaser
----------------------------------------------- --------------------------------
o Any other 1101(d)(1) material party Depositor/Purchaser
----------------------------------------------- --------------------------------
Whether there are any "outside the ordinary Depositor as to (a)
course business arrangements" other than would Purchaser/Seller as to (a)
be obtained in an arm's length transaction
between (a) the Purchaser (Seller), Depositor
or Issuing Entity on the one hand, and (b) any
of the following parties (or their affiliates)
on the other hand, that exist currently or
within the past two years and that are
material to a Certificateholder's
understanding of the Certificates:
----------------------------------------------- --------------------------------
o Master Servicer Master Servicer
----------------------------------------------- --------------------------------
o Securities Administrator Securities Administrator
----------------------------------------------- --------------------------------
o Trustee Depositor/Purchaser
----------------------------------------------- --------------------------------
o Any other 1108(a)(3) servicer Servicer
----------------------------------------------- --------------------------------
o Any 1110 Originator Depositor/Purchaser
----------------------------------------------- --------------------------------
o Any 1112(b) Significant Obligor Depositor/Purchaser
----------------------------------------------- --------------------------------
o Any 1114 Credit Enhancement Provider Depositor/Purchaser
----------------------------------------------- --------------------------------
o Any 1115 Derivate Counterparty Provider Depositor/Purchaser
----------------------------------------------- --------------------------------
o Any other 1101(d)(1) material party Depositor/Purchaser
----------------------------------------------- --------------------------------
Whether there are any specific relationships Depositor as to (a)
involving the transaction or the pool assets Purchaser/Seller as to (a)
between (a) the Purchaser (Seller), Depositor
or Issuing Entity on the one hand, and (b) any
of the following parties (or their affiliates)
on the other hand, that exist currently or
within the past two years and that are
material:
----------------------------------------------- --------------------------------
o Master Servicer Master Servicer
----------------------------------------------- --------------------------------
o Securities Administrator Securities Administrator
----------------------------------------------- --------------------------------
o Trustee Depositor/Purchaser
----------------------------------------------- --------------------------------
o Any other 1108(a)(3) servicer Servicer
----------------------------------------------- --------------------------------
o Any 1110 Originator Depositor/Purchaser
----------------------------------------------- --------------------------------
o Any 1112(b) Significant Obligor Depositor/Purchaser
----------------------------------------------- --------------------------------
o Any 1114 Credit Enhancement Provider Depositor/Purchaser
----------------------------------------------- --------------------------------
o Any 1115 Derivate Counterparty Provider Depositor/Purchaser
----------------------------------------------- --------------------------------
o Any other 1101(d)(1) material party Depositor/Purchaser
--------------------------------------------------------------------------------
EXHIBIT R
FORM 8-K DISCLOSURE INFORMATION
-------------------------------------------------------------------------------
Item on Form 8-K Party Responsible
---------------------------------------- ---------------------------------------
Item 1.01- Entry into a Material The party to this Agreement
Definitive Agreement entering into such material
definitive agreement
---------------------------------------- ---------------------------------------
Item 1.02- Termination of a Material The party to this Agreement
Definitive Agreement requesting termination of a
material definitive agreement
---------------------------------------- ---------------------------------------
Item 1.03- Bankruptcy or Receivership (i) All parties to the Agreement
(as to themselves), (ii) the
Trustee, the Master Servicer, the
Securities Administrator and the
Servicer (to their respective
actual knowledge) as to the Trust,
(iii) the Depositor as to the
sponsor and each Original Loan
Seller or any 1100(d)(1) party
---------------------------------------- ---------------------------------------
Item 2.04- Triggering Events that Securities Administrator/Depositor
Accelerate or Increase a Direct
Financial Obligation or an Obligation
under an Off-Balance Sheet Arrangement
---------------------------------------- ---------------------------------------
Item 3.03- Material Modification to The party requesting such
Rights of Security Holders modification
---------------------------------------- ---------------------------------------
Item 5.03- Amendments of Articles of Depositor
Incorporation or Bylaws; Change of
Fiscal Year
---------------------------------------- ---------------------------------------
Item 6.01- ABS Informational and Depositor
Computational Material
---------------------------------------- ---------------------------------------
Item 6.02- Change of Servicer, Master Servicer, Servicer,
Securities Administrator or Trustee Securities Administrator, Trustee
(as to the Trustee)
---------------------------------------- ---------------------------------------
Item 6.03- Change in Credit Enhancement Depositor/ Securities Administrator
or External Support
---------------------------------------- ---------------------------------------
Item 6.04- Failure to Make a Required Securities Administrator
Distribution
---------------------------------------- ---------------------------------------
Item 6.05- Securities Act Updating Depositor
Disclosure
---------------------------------------- ---------------------------------------
Item 7.01- Regulation FD Disclosure Depositor
---------------------------------------- ---------------------------------------
Item 8.01 Depositor
---------------------------------------- ---------------------------------------
Item 9.01 - Financial Statements and Responsible party for
Exhibits reporting/disclosing the financial
statement or exhibit
--------------------------------------------------------------------------------
EXHIBIT S
ADDITIONAL DISCLOSURE NOTIFICATION
BCAP LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: [_________]
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇.▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
Attn: Corporate Trust Services - BCAP 2008-IND1 SEC REPORT PROCESSING
Re: RE **Additional Form [10-D][10-K][8-K] Disclosure** Required
------------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 8.15 of the Pooling and Servicing
Agreement, dated as of January 1, 2008, between BCAP LLC, as depositor and
▇▇▇▇▇ Fargo Bank, N.A., as master servicer and securities administrator,
Deutsche Bank National Trust Company, as custodian and HSBC Bank USA,
National Association, as trustee, the undersigned, as [____], hereby notifies
you that certain events have come to our attention that [will] [may] need to
be disclosed on Form [10-D][10-K][8-K].
Description of Additional Form [10-D][10-K][8-K] Disclosure:
------------------------------------------------------------
List of any Attachments hereto to be included in the Additional Form
--------------------------------------------------------------------
[10-D][10-K][8-K] Disclosure:
-----------------------------
Any inquiries related to this notification should be directed to
[____], phone number: [____]; email address: [____].
[NAME OF PARTY],
as [role]
By:____________________________________
Name:
Title:
EXHIBIT T
SIDE LETTER
THIS AGREEMENT, dated as of February 13, 2008 (the "Agreement") is
entered into between Barclays Bank PLC ("BBPLC") and BCAP LLC (the "Depositor").
RECITALS
WHEREAS, reference is made to the Pooling and Servicing Agreement,
dated as of January 1, 2008 (the "Pooling and Servicing Agreement"), among the
Depositor, HSBC Bank USA, National Association, as trustee (the "Trustee"),
Deutsche Bank National Trust Company, as custodian (the "Custodian") and ▇▇▇▇▇
Fargo Bank, N. A., as master servicer and securities administrator.
WHEREAS, pursuant to the Amended and Restated Mortgage Loan Purchase
Agreement, dated as of February 13, 2008, between BBPLC, as purchaser, and
IndyMac Bank, F.S.B. ("IndyMac"), as seller (the "IndyMac Agreement"), IndyMac
has made representations and warranties regarding certain Mortgage Loans (as
defined in the Pooling and Servicing Agreement) as of the date specified therein
(the "IndyMac Original Sale Date").
WHEREAS, pursuant to the ▇▇▇▇ of Sale, dated as of February 13, 2008
(the "▇▇▇▇ of Sale"), between the Depositor and BPPLC, BPPLC sold the Mortgage
Loans to the Depositor.
NOW, THEREFORE, the parties hereto agree as follows:
Definitions
-----------
Capitalized terms used but not defined herein shall have the
meanings assigned to such terms in the Pooling and Servicing Agreement.
Representations and Warranties of BBPLC
---------------------------------------
With respect to the Mortgage Loans, BBPLC hereby represents to the
Depositor that, to the best of its knowledge, no event has occurred since the
applicable IndyMac Original Sale Date that would render the representations and
warranties made by IndyMac in paragraphs (1) through (7), (9), (10), (11), (15),
(19), (20), (22) and (32) of Section 9.02 of the IndyMac Agreement to be untrue
in any material respect as of the Closing Date.
In addition, BBPLC hereby represents to the Depositor that:
(i) No Mortgage Loan is a Mortgage Loan categorized as "High Cost"
or "Covered" pursuant to Appendix E of Standard & Poor's Glossary. No
Mortgage Loan originated on or after October 1, 2002 through March 6, 2003
is governed by the Georgia Fair Lending Act.
(ii) Each loan at the time it was made complied in all material
respects with applicable local, state and federal laws, including, but not
limited to, all applicable predatory and abusive lending laws.
Repurchase of Mortgage Loans
----------------------------
In the event of a breach by BBPLC of its representations and
warranties above that materially and adversely affects Certificateholders, BBPLC
shall repurchase each such Mortgage Loan within 60 days of the earlier of
discovery or receipt of notice of breach with respect to each such Mortgage Loan
at the Repurchase Price set forth in the Pooling and Servicing Agreement.
Third-Party Beneficiary
-----------------------
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and permitted assigns. The
Trustee and its successors and assigns under the Pooling and Servicing Agreement
shall be a third-party beneficiary to the provisions of this Agreement, and
shall be entitled to rely upon and directly to enforce such provisions of this
Agreement, except as expressly limited by the terms hereof. Except as expressly
stated otherwise herein or in the Pooling and Servicing Agreement, any right of
the Trustee to direct, appoint, consent to, approve of, or take any action under
this Agreement, shall be a right exercised by the Trustee in its sole and
absolute discretion.
Governing Law
-------------
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
Counterparts
------------
This Agreement may be executed in any number of counterparts, each
of which when so executed shall be deemed to be an original, but all of which
counterparts shall together constitute but one and the same instrument.
Amendments
----------
This Agreement may be amended from time to time by BBPLC and the
Depositor, with the prior written consent of the Trustee.
[SIGNATURE PAGE FOLLOWS]
Executed as of the day and year first above written.
BARCLAYS BANK PLC
By: /s/ ▇▇▇ ▇▇▇
-----------------------------------
Name: ▇▇▇ ▇▇▇
Title: Managing Director
BCAP LLC
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇
Title: President and Chief Executive Officer
EXHIBIT U
LOAN LEVEL DATA REPORT
LOAN NUM
NEXT DUE DATE
PMT P&I CONTSTANT
RTE
BEG SCHED BAL
SCHED PRIN
CURTAIL
LIQUIDATED BALANCE
END SCHED BAL
NET INT
NEG AMORT AMOUNT
NEXT RATE CHANGE DATE
ACTION CODE STATUS
DEALID
LOSS ON LIQUIDATED PROP
MODIFICATION DATE