Exhibit 99.1
------------
EXECUTION COPY
===============================================================================
INDYMAC MBS, INC.
Depositor
INDYMAC BANK, F.S.B.
Seller and Master Servicer
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.
Trustee
----------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of August 1, 2001
----------------------------------------
RESIDENTIAL ASSET SECURITIZATION TRUST
Series 2001-A1
MORTGAGE PASS-THROUGH CERTIFICATES
Series 2001-A
===============================================================================
Table of Contents
Page
----
ARTICLE ONE DEFINITIONS
Section 1.01. Definitions. ....................................................................1
Section 1.02. Rules of Construction. .........................................................34
ARTICLE TWO CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
Section 2.01. Conveyance of Mortgage Loans. ...................................................1
Section 2.02. Acceptance by the Trustee of the Mortgage Loans. ................................4
Section 2.03. Representations, Warranties, and Covenants of the Seller and the
Master Servicer. ................................................................8
Section 2.04. Representations and Warranties of the Depositor as to the
Mortgage Loans. ................................................................10
Section 2.05. Delivery of Opinion of Counsel in Connection with Substitutions
and Repurchases. ...............................................................10
Section 2.06. Execution and Delivery of Certificates. ........................................11
Section 2.07. REMIC Matters. .................................................................11
Section 2.08. [Reserved]. ....................................................................11
Section 2.09. Subsequent Transfers. ..........................................................11
Section 2.10. Mandatory Prepayment. ..........................................................14
ARTICLE THREE ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01. Master Servicer to Service Mortgage Loans. ......................................1
Section 3.02. Subservicing; Enforcement of the Obligations of Subservicers. ...................1
Section 3.03. Rights of the Depositor and the Trustee in Respect of the Master
Servicer. .......................................................................2
Section 3.04. No Contractual Relationship Between Subservicers and the
Trustee. ........................................................................2
Section 3.05. Trustee to Act as Master Servicer. ..............................................2
Section 3.06. Collection of Mortgage Loan Payments; Servicing Accounts;
Collection Account; Certificate Account; Distribution Account;
Pre-Funding Accounts; Capitalized Interest Accounts; Carryover
Reserve Fund Accounts. ..........................................................3
Section 3.07. Collection of Taxes, Assessments and Similar Items; Escrow
Accounts. .......................................................................9
Section 3.08. Access to Certain Documentation and Information Regarding the
Mortgage Loans. ................................................................10
Section 3.09. Permitted Withdrawals from the Certificate Account, the
Distribution Account and the Carryover Reserve Fund Account. ...................10
Section 3.10. Maintenance of Hazard Insurance; Maintenance of Primary
Insurance Policies. ............................................................12
Section 3.11. Enforcement of Due-On-Sale Clauses; Assumption Agreements.......................13
Section 3.12. Realization Upon Defaulted Mortgage Loans.. ....................................15
Section 3.13. Trustee to Cooperate; Release of Mortgage Files. ...............................17
i
Section 3.14. Documents, Records and Funds in Possession of the Master
Servicer to be Held for the Trustee. ...........................................18
Section 3.15. Servicing Compensation. ........................................................18
Section 3.16. Access to Certain Documentation. ...............................................19
Section 3.17. Annual Statement as to Compliance. .............................................19
Section 3.18. Annual Independent Public Accountants' Servicing Statement;
Financial Statements. ..........................................................19
Section 3.19. Errors and Omissions Insurance; Fidelity Bonds. ................................20
ARTICLE FOUR DISTRIBUTIONS AND ADVANCES BY THE MASTER SERVICER
Section 4.01. Advances. .......................................................................1
Section 4.02. Priorities of Distribution. .....................................................1
Section 4.03. Monthly Statements to Certificateholders. .......................................4
Section 4.04. Yield Maintenance Agreements ....................................................6
Section 4.05. [Reserved] ......................................................................6
Section 4.06. [Reserved] ......................................................................6
Section 4.07. Determination of Pass-Through Rates for COFI Certificates. ......................6
Section 4.08. Determination of Pass-Through Rates for LIBOR Certificates. .....................8
ARTICLE FIVE THE CERTIFICATES
Section 5.01. The Certificates. ...............................................................1
Section 5.02. Certificate Register; Registration of Transfer and Exchange of
Certificates. ...................................................................1
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates. ..............................6
Section 5.04. Persons Deemed Owners. ..........................................................6
Section 5.05. Access to List of Certificateholders' Names and Addresses. ......................7
Section 5.06. Maintenance of Office or Agency. ................................................7
ARTICLE SIX THE DEPOSITOR AND THE MASTER SERVICER
Section 6.01. Respective Liabilities of the Depositor and the Master Servicer. ................1
Section 6.02. Merger or Consolidation of the Depositor or the Master Servicer. ................1
Section 6.03. Limitation on Liability of the Depositor, the Seller, the Master
Servicer and Others. ............................................................1
Section 6.04. Limitation on Resignation of the Master Servicer. ...............................2
ARTICLE SEVEN DEFAULT
Section 7.01. Events of Default. ..............................................................1
Section 7.02. Trustee to Act; Appointment of Successor. .......................................2
Section 7.03. Notification to Certificateholders. .............................................3
ARTICLE EIGHT CONCERNING THE TRUSTEE
Section 8.01. Duties of the Trustee. ..........................................................1
Section 8.02. Certain Matters Affecting the Trustee. ..........................................2
ii
Section 8.03. Trustee Not Liable for Certificates or Mortgage Loans. ..........................3
Section 8.04. Trustee May Own Certificates. ...................................................3
Section 8.05. Trustee's Fees and Expenses. ....................................................3
Section 8.06. Eligibility Requirements for the Trustee. .......................................4
Section 8.07. Resignation and Removal of the Trustee. .........................................4
Section 8.08. Successor Trustee. ..............................................................5
Section 8.09. Merger or Consolidation of the Trustee. .........................................6
Section 8.10. Appointment of Co-Trustee or Separate Trustee. ..................................6
Section 8.11. Tax Matters. ....................................................................7
Section 8.12. Periodic Filings. ...............................................................9
Section 8.13. [Reserved] .....................................................................10
Section 8.14. Tax Classification of the Carryover Reserve Fund Account. ......................10
ARTICLE NINE TERMINATION
Section 9.01. Termination upon Liquidation or Purchase of the Mortgage Loans. .................1
Section 9.02. Final Distribution on the Certificates. .........................................1
Section 9.03. Additional Termination Requirements. ............................................3
ARTICLE TEN MISCELLANEOUS PROVISIONS
Section 10.01. Amendment. .....................................................................1
Section 10.02. Recordation of Agreement; Counterparts. ........................................3
Section 10.03. Governing Law. .................................................................3
Section 10.04. Intention of Parties. ..........................................................3
Section 10.05. Notices. .......................................................................4
Section 10.06. Severability of Provisions. ....................................................5
Section 10.07. Assignment. ....................................................................5
Section 10.08. Limitation on Rights of Certificateholders. ....................................5
Section 10.09. Inspection and Audit Rights. ...................................................6
Section 10.10. Certificates Nonassessable and Fully Paid. .....................................6
Section 10.11. Official Record. ...............................................................6
Section 10.12. Protection of Assets. ..........................................................6
Section 10.13. Qualifying Special Purpose Entity. .............................................7
SCHEDULES
Schedule I: Mortgage Loan Schedule.................................................. S-I-1
Schedule II: Representations and Warranties of the Seller/Master Servicer............S-II-1
Schedule III: Representations and Warranties as to the Mortgage Loans................S-III-1
Schedule IV: Planned Balance Schedules...............................................S-IV-1
EXHIBITS
Exhibit A: Form of Class A, M and B Certificate.......................................A-1
iii
Exhibit B: Form of Class OC Certificate...............................................B-1
Exhibit C: Form of Class R Certificate................................................C-1
Exhibit D: Form of Class P Certificate................................................D-1
Exhibit E: Form of Reverse of Certificates............................................E-1
Exhibit F: [Reserved].................................................................F-1
Exhibit G: Form of Initial Certification of Trustee...................................G-1
Exhibit G1: Form of Delay Delivery Certification.....................................G-1-1
Exhibit H: Form of Final Certification of Trustee.....................................H-1
Exhibit I: Form of Transfer Affidavit.................................................I-1
Exhibit J: Form of Transferor Certificate.............................................J-1
Exhibit K: Form of Investment Letter (Non-Rule 144A)..................................K-1
Exhibit L: Form of Rule 144A Letter...................................................L-1
Exhibit M: Form of Request for Release (for Trustee)..................................M-1
Exhibit N: Form of Request for Release (Mortgage Loan Paid in Full, Repurchased
and Released)..............................................................N-1
Exhibit O: [Reserved].................................................................O-1
Exhibit Q: Form of Subsequent Transfer Agreement......................................Q-1
iv
THIS POOLING AND SERVICING AGREEMENT, dated as of August 1, 2001,
among INDYMAC MBS, INC., a Delaware corporation, as depositor (the
"Depositor"), INDYMAC BANK, F.S.B. ("IndyMac"), a federal savings bank, as
seller (in that capacity, the "Seller") and as master servicer (in that
capacity, the "Master Servicer"), and BANKERS TRUST COMPANY OF CALIFORNIA,
N.A., a national banking association, as trustee (the "Trustee"),
WITNESSETH THAT
In consideration of the mutual agreements herein contained, the
parties agree as follows:
The Depositor is the owner of the Trust Fund that is hereby conveyed
to the Trustee in return for the Certificates. The Trust Fund for federal
income tax purposes will consist of three REMICs: the Subsidiary REMIC, the
Intermediate REMIC, and the Master REMIC. The Subsidiary REMIC will consist of
all of the assets constituting the Trust Fund (including $100 put in trust for
the benefit of the Class P Certificate, but excluding the Pre-Funding
Accounts, the Capitalized Interest Accounts, the Yield Maintenance Agreements,
and the Carryover Reserve Fund Accounts) and will be evidenced by the
Subsidiary REMIC Regular Interests (which excluding the Class P Certificate
will be uncertificated (the "Uncertificated Subsidiary REMIC Regular
Interests") and will represent the "regular interests" in the Subsidiary
REMIC) and the SR Interest as the single "residual interest" in the Subsidiary
REMIC. The Trustee will hold the Uncertificated Subsidiary REMIC Regular
Interests for the benefit of the Intermediate REMIC. The Intermediate REMIC
will consist of the Uncertificated Subsidiary REMIC Regular Interests and will
be evidenced by the Intermediate REMIC Regular Interest (which will represent
the "regular interests" in the Intermediate REMIC) and the IR Interest as the
single "residual interest" in the Intermediate REMIC. The Trustee will hold
the Intermediate REMIC Regular Interests for the benefit of the Master REMIC.
The Master REMIC will consist of the Intermediate REMIC Regular Interests and
will be evidenced by the Regular Certificates (which will represent the
"regular interests" in the Master REMIC) and the MR Interest as the single
"residual interest" in the Master REMIC. The Class A-R Certificates will
represent beneficial ownership of the SR Interest, IR Interest and the MR
Interest. The "latest possible maturity date" for federal income tax purposes
of all interests created hereby will be the Latest Possible Maturity Date.
The Master REMIC
The following table sets forth characteristics of the Certificates,
together with the minimum denominations and integral multiples in excess
thereof in which such Classes shall be issuable (except that one Certificate
of each Class of Certificates may be issued in a different amount and, in
addition, one Residual Certificate representing the Tax Matters Person
Certificate may be issued in a different amount):
====================================================================================================
Integral
Class Certificate Pass-Through Minimum Multiples in
Balance Rate(8) Denomination Excess of Minimum
----------------------------------------------------------------------------------------------------
Class 1-A-1 $152,524,000.00 Variable(1) $25,000 $1,000
----------------------------------------------------------------------------------------------------
Class 1-A-2 $177,500,000.00 5.82% $25,000 $1,000
----------------------------------------------------------------------------------------------------
Class 1-A-3 $42,012,000.00 6.61% $25,000 $1,000
----------------------------------------------------------------------------------------------------
1
----------------------------------------------------------------------------------------------------
Class 1-A-4 $86,651,000.00 6.86% $25,000 $1,000
----------------------------------------------------------------------------------------------------
Class 1-A-5 $81,813,000.00 7.13%(5) $25,000 $1,000
----------------------------------------------------------------------------------------------------
Class 1-A-IO (2) (3) $25,000(4) $1,000(4)
----------------------------------------------------------------------------------------------------
Class 2-A-1 $34,579,000.00 Variable(1) $25,000 $1,000
----------------------------------------------------------------------------------------------------
Class 2-A-2 $46,094,000.00 5.68% $25,000 $1,000
----------------------------------------------------------------------------------------------------
Class 2-A-3 $13,218,000.00 6.36% $25,000 $1,000
----------------------------------------------------------------------------------------------------
Class 2-A-4 $14,440,000.00 6.78% $25,000 $1,000
----------------------------------------------------------------------------------------------------
Class 2-A-5 $23,269,000.00 7.04%(5) $25,000 $1,000
----------------------------------------------------------------------------------------------------
Class 2-A-IO (2) (3) $25,000(4) $1,000(4)
----------------------------------------------------------------------------------------------------
Class A-R $100.00 N/A $100 N/A
----------------------------------------------------------------------------------------------------
Class 1-M-1 $14,375,000.00 7.00%(5) $25,000 $1,000
----------------------------------------------------------------------------------------------------
Class 1-M-2 $11,500,000.00 7.00%(5) $25,000 $1,000
----------------------------------------------------------------------------------------------------
Class 1-B $8,625,000.00 7.00%(5) $25,000 $1,000
----------------------------------------------------------------------------------------------------
Class 2-M-1 $3,500,000.00 6.87%(5) $25,000 $1,000
----------------------------------------------------------------------------------------------------
Class 2-M-2 $2,800,000.00 7.00%(5) $25,000 $1,000
----------------------------------------------------------------------------------------------------
Class 2-B $2,100,000.00 7.00%(5) $25,000 $1,000
----------------------------------------------------------------------------------------------------
Class 1-OC N/A (6) $1,000 $1,000
----------------------------------------------------------------------------------------------------
Class 2-OC N/A (7) $1,000 $1,000
====================================================================================================
--------------
(1) The Pass-Through Rate for the Class 1-A-1 and Class 2-A-1 Certificates
will be the lesser of (x) LIBOR plus 0.13% and (y) the Adjusted Group
1 Net WAC Rate or the Adjusted Group 2 Net WAC Rate, as applicable,
(adjusted in the case of the Adjusted Group 1 Net WAC Rate and the
Adjusted Group 2 Net WAC Rate applicable to the related Class of LIBOR
Certificates, to an effective rate reflecting the accrual of interest
calculated on the basis of a 360-day year and the actual number of
days elapsed during the related Accrual Period).
(2) The Class 1-A-IO Certificates will not be entitled to any principal
but will have notional balance equal to (a) for any of the first
thirty Distribution Dates, the principal balance of the Class SGI-A
Interest, and (b) thereafter, 0. The Class 2-A-IO Certificates will
not be entitled to any principal but will have notional balance equal
to (y) for any of the first thirty Distribution Dates, the principal
balance of the Class SGII-A Interest, and (z) thereafter, 0.
(3) The Pass-Through Rate for the Class 1-A-IO and 2-A-IO Certificates
will initially be 7.00% per annum and will decline as follows:
-----------------------------------------------------------------
Distribution Date Pass-Through Rate
-----------------------------------------------------------------
September 2001 through February 7.00%
2002
-----------------------------------------------------------------
March 2002 through August 2002 6.50%
-----------------------------------------------------------------
September 2002 through February 6.00%
-----------------------------------------------------------------
2
-----------------------------------------------------------------
2003
-----------------------------------------------------------------
March 2003 through August 2003 5.00%
-----------------------------------------------------------------
September 2003 through February 4.50%
2004
-----------------------------------------------------------------
March 2004 and thereafter 0.00%
-----------------------------------------------------------------
(4) The minimum denomination is based on the related Notional Amount.
(5) The Pass-Through Rate of this class will increase by 0.50% per annum
on the first Distribution Date after the related Optional Termination
Date.
(6) The Class 1-OC Certificates will have a Notional Amount equal to the
sum of the aggregate Stated Principal Balance of the Group 1 Mortgage
Loans and the related Pre-Funding Amount, and a Pass-Through Rate
equal to the excess of the Adjusted Group 1 Net WAC Rate over the
product of (i) 2 and (ii) the weighted average rate of the Group 1
Intermediate REMIC Regular Interests with each Group 1 Intermediate
REMIC Accretion Directed Class subject to a cap equal to the pass
through rate in respect of the Corresponding Master REMIC Class and
the Group 1 Intermediate REMIC Accrual Class subject to a cap equal to
zero.
(7) The Class 2-OC Certificates will have a Notional Amount equal to the
sum of the aggregate Stated Principal Balance of the Group 1 Mortgage
Loans and the related Pre-Funding Amount, and a Pass-Through Rate
equal to the excess of the Adjusted Group 2 Net WAC Rate over the
product of (i) 2 and (ii) the weighted average rate of the Group 2
Intermediate REMIC Regular Interests with each Group 2 Intermediate
REMIC Accretion Directed Class subject to a cap equal to the pass
through rate in respect of the Corresponding Master REMIC Class and
the Group 2 Intermediate REMIC Accrual Class subject to a cap equal to
zero.
(8) The Pass-Through Rate for any Distribution Date for each Class of
Certificates other than the Class 1-A-IO and Class 2-A-IO Certificates
is equal to the lesser of: (i) the Pass-Through Rate set forth above
and (ii) in the case of the related Group 1 Certificates, the Adjusted
Group 1 Net WAC Rate for that Distribution Date or, in the case of the
related Group 2 Certificates, the Adjusted Group 2 Net WAC Rate for
that Distribution Date, in each case adjusted for the appropriate
Accrual Period.
The Intermediate REMIC
The following table sets forth Class Designation, the Initial
Principal Balance, the Pass-Through, the Corresponding Master REMIC
Certificate for each Intermediate REMIC Regular Interest:
================================================================================================
Corresponding
Initial Principal Master REMIC
Class Designation Balance Pass-Through Rate Certificate Loan Group
------------------------------------------------------------------------------------------------
Class I1A-1 1/2 Corresponding (1) Class 1-A-1, I
Master REMIC Class AR
Class balances
------------------------------------------------------------------------------------------------
Class I1A-2 1/2 Corresponding (1) Class 1-A-2 I
Master REMIC
Class balance
------------------------------------------------------------------------------------------------
Class I1A-3 1/2 Corresponding (1) Class 1-A-3 I
Master REMIC
Class balance
------------------------------------------------------------------------------------------------
Class I1A-4 1/2 Corresponding (1) Class 1-A-4 I
Master REMIC
Class balance
------------------------------------------------------------------------------------------------
Class I1A-5 1/2 Corresponding (1) Class 1-A-5 I
------------------------------------------------------------------------------------------------
3
------------------------------------------------------------------------------------------------
Master REMIC
Class balance
vClass I1A-IO (2) (3) Class 1-A-IO I
------------------------------------------------------------------------------------------------
Class I2A-1 1/2 Corresponding (4) Class 2-A-1 II
Master REMIC
Class balance
------------------------------------------------------------------------------------------------
Class I2A-2 1/2 Corresponding (4) Class 2-A-2 II
Master REMIC
Class balance
------------------------------------------------------------------------------------------------
Class I2A-3 1/2 Corresponding (4) Class 2-A-3 II
Master REMIC
Class balance
------------------------------------------------------------------------------------------------
Class I2A-4 1/2 Corresponding (4) Class 2-A-4 II
Master REMIC
Class balance
------------------------------------------------------------------------------------------------
Class I2A-5 1/2 Corresponding (4) Class 2-A-5 II
Master REMIC
Class balance
------------------------------------------------------------------------------------------------
Class I2A-IO (2) (3) Class 2-A-IO II
------------------------------------------------------------------------------------------------
Class I1M-1 1/2 Corresponding (1) Class 1-M-1 I
Master REMIC
Class balance
------------------------------------------------------------------------------------------------
Class I1M-2 1/2 Corresponding (1) Class 1-M-2 I
Master REMIC
Class balance
------------------------------------------------------------------------------------------------
Class I1B 1/2 Corresponding (1) Class 1-B I
Master REMIC
Class balance
------------------------------------------------------------------------------------------------
Class I2M-1 1/2 Corresponding (4) Class 2-M-1 II
Master REMIC
Class balance
------------------------------------------------------------------------------------------------
Class I2M-2 1/2 Corresponding (4) Class 2-M-2 II
Master REMIC
Class balance
------------------------------------------------------------------------------------------------
Class I2B 1/2 Corresponding (4) Class 2-B II
Master REMIC
Class balance
------------------------------------------------------------------------------------------------
Group 1 1/2 Group 1 (1) N/A I
Intermediate REMIC Mortgage Loans
Accrual Class plus 1/2 the
Overcollateralized
Amount for
Certificate Group
1
------------------------------------------------------------------------------------------------
Group 2 1/2 Group 2 (4) N/A II
Intermediate REMIC Mortgage Loans
Accrual Class plus 1/2 the
Overcollateralized
Amount for
Certificate Group
2
------------------------------------------------------------------------------------------------
Class IR N/A N/A N/A N/A
================================================================================================
4
(1) The Adjusted Group 1 Net WAC Rate.
(2) The Class I1A-IO will not be entitled to any principal but will have a
notional balance equal to the principal balance of the Class SGI-A
Interest. The Class I2A-IO will not be entitled to any principal but
will have a notional balance equal to the principal balance of the
Class SGII-A Interest.
(3) The Pass-Through Rate for the Class I1A-IO and Class I2A-IO Interests
for any Distribution Date will be equal to the Pass-Through Rates for
the Class 1-A-IO and Class 2-A-IO Certificates, respectively, set
forth in footnote (3) to The Master REMIC table in this Preliminary
Statement, as adjusted for the appropriate Accrual Period.
(4) The Adjusted Group 2 Net WAC Rate.
On each Distribution Date, 50% of the increase in the
Overcollateralized Amount relating to Loan Group 1 since the previous
Distribution Date for Certificate Group 1 will be payable as a reduction of
the principal balances of the Class I1A-1 Interest, Class I1A-2 Interest,
Class I1A-3 Interest, Class I1A-4 Interest, Class I1A-5 Interest, Class I1M-1
Interest Class I1M-2 Interest, and Class I1B Interest (together, the "Group 1
Intermediate REMIC Accretion Directed Classes") (to each such class in an
amount equal to 1/2 of the interest paid in reduction of the principal balance
of the Corresponding Class of Master REMIC Interest) to each such Class in an
amount equal to 1/2 of the interest paid in reduction of the principal balance
of the Corresponding Class of Master REMIC Interest and will be accrued and
added to the principal balance of the Group 1 Intermediate REMIC Accrual
Class. In addition, on the first Distribution Date, the Class I1A-1 Interest
will be reduced by $50.00, which is 1/2 of the amount payable on the first
Distribution Date to the Class A-R Certificates. On each Distribution Date,
the increase in the principal balance of the Group 1 Intermediate REMIC
Accrual Class may not exceed interest accruals for such Distribution Date for
the Group 1 Intermediate REMIC Accrual Class. In the event that: (i) 50% of
the increase in the Overcollateralized Amount exceeds (ii) interest accruals
on the Group 1 Intermediate REMIC Accrual Class for such Distribution Date,
the excess for such Distribution Date (accumulated with all such excesses for
all prior Distribution Dates) will be added to any increase in the
Overcollateralized Amount for purposes of determining the amount of interest
accrual on the Group 1 Intermediate REMIC Accrual Class payable as principal
on the Group 1 Intermediate REMIC Accretion Directed Classes on the next
Distribution Date pursuant to the first sentence of this paragraph.
All payments of scheduled principal and prepayments of principal (and
interest based upon each interest's respective Pass-Through Rate) generated by
the Group 1 Mortgage Loans shall be allocated 50% to the Group 1 Intermediate
REMIC Accrual Class, and 50% to the Group 1 Intermediate REMIC Accretion
Directed Classes to each such Class in an amount equal to 1/2 of the interest
paid in reduction of the principal balance of the Corresponding Class of
Master REMIC Interest, until paid in full of the interest paid in reduction of
the principal balance of the Corresponding Class of Master REMIC Interest).
Notwithstanding the above, principal payments allocated to the Class 1-OC
Certificates that result in the reduction in the Overcollateralized Amount
shall be allocated to the Group 1 Intermediate REMIC Accrual Class (until paid
in full). Realized losses shall be applied so that after all distributions
have been made on each Distribution Date (i) the principal balances of each of
the Group 1 Intermediate REMIC Accretion Directed Classes is equal to 50% of
the principal balance of their Corresponding Class, and (ii) the Group 1
Intermediate REMIC Accrual Class is equal to 50% of the sum of the aggregate
Stated Principal Balance of the Group 1 Mortgage Loans and the related
Pre-Funding Amount plus 50% of the related Overcollateralized Amount. Interest
shortfalls shall be allocated pro rata.
5
On each Distribution Date, 50% of the increase in the
Overcollateralized Amount relating to Loan Group 2 since the previous
Distribution Date for Certificate Group 2 will be payable as a reduction of
the principal balances of the Class I2A-1 Interest, Class I2A-2 Interest,
Class I2A-3 Interest, Class I2A-4 Interest, Class I2A-5 Interest, Class I2M-1
Interest Class I2M-2 Interest, and Class I2B Interest (together, the "Group 2
Intermediate REMIC Accretion Directed Classes") (to each such class in an
amount equal to 1/2 of the interest paid in reduction of the principal balance
of the Corresponding Class of Master REMIC Interest) to each such Class in an
amount equal to 1/2 of the interest paid in reduction of the principal balance
of the Corresponding Class of Master REMIC Interest and will be accrued and
added to the principal balance of the Group 2 Intermediate REMIC Accrual
Class. On each Distribution Date, the increase in the principal balance of the
Group 2 Intermediate REMIC Accrual Class may not exceed interest accruals for
such Distribution Date for the Group 2 Intermediate REMIC Accrual Class. In
the event that: (i) 50% of the increase in the Overcollateralized Amount
exceeds (ii) interest accruals on the Group 2 Intermediate REMIC Accrual Class
for such Distribution Date, the excess for such Distribution Date (accumulated
with all such excesses for all prior Distribution Dates) will be added to any
increase in the Overcollateralized Amount for purposes of determining the
amount of interest accrual on the Group 2 Intermediate REMIC Accrual Class
payable as principal on the Group 2 Intermediate REMIC Accretion Directed
Classes on the next Distribution Date pursuant to the first sentence of this
paragraph.
All payments of scheduled principal and prepayments of principal (and
interest based upon each interest's respective Pass-Through Rate) generated by
the Group 2 Mortgage Loans shall be allocated 50% to the Group 2 Intermediate
REMIC Accrual Class, and 50% to the Group 2 Intermediate REMIC Accretion
Directed Classes to each such Class in an amount equal to 1/2 of the interest
paid in reduction of the principal balance of the Corresponding Class of
Master REMIC Interest, until paid in full of the interest paid in reduction of
the principal balance of the Corresponding Class of Master REMIC Interest).
Notwithstanding the above, principal payments allocated to the Class 1-OC
Certificates that result in the reduction in the Overcollateralized Amount
shall be allocated to the Group 2 Intermediate REMIC Accrual Class (until paid
in full). Realized losses shall be applied so that after all distributions
have been made on each Distribution Date (i) the principal balances of each of
the Group 2 Intermediate REMIC Accretion Directed Classes is equal to 50% of
the principal balance of their Corresponding Class, and (ii) the Group 2
Intermediate REMIC Accrual Class is equal to 50% of the sum of the aggregate
Stated Principal Balance of the Group 2 Mortgage Loans and the related
Pre-Funding Amount plus 50% of the related Overcollateralized Amount. Interest
shortfalls shall be allocated pro rata.
The Subsidiary REMIC
The following table sets forth Class Designation, the Initial
Principal Balance, the Pass-Through, the Corresponding Group for each
Subsidiary REMIC Regular Interest:
=================================================================================================
Class Designation Initial Principal Balance Pass-Through Rate Corresponding Group
-------------------------------------------------------------------------------------------------
Class SGI-A 57,000,000 Group 1 Net WAC Rate Group 1
-------------------------------------------------------------------------------------------------
Class SGI-B (1) Group 1 Net WAC Rate Group 1
-------------------------------------------------------------------------------------------------
Class SGII-A 14,000,000 Group 2 Net WAC Rate Group 2
-------------------------------------------------------------------------------------------------
Class SGII-B (2) Group 2 Net WAC Rate Group 2
-------------------------------------------------------------------------------------------------
6
------------------------------------------------------------------------------------------------
Class P 100 (3) N/A
=================================================================================================
(1) The Class SGI-B will have a principal balance equal to the principal
balance of all Loan Group 1 Intermediate REMIC Regular Interest less
the principal balance of the Class SGI-A.
(2) The Class SGII-B will have a principal balance equal to the principal
balance of all Loan Group 2 Intermediate REMIC Regular Interest less
the principal balance of the Class SGII-A.
(3) The Class P Certificate will have a Pass-Through Rate equal to zero,
but will be entitled to all Prepayment Charges.
All payments of principal (and interest based upon each interest's
respective Pass-Through Rate) generated by and Realized Losses (including any
related interest shortfalls) on the Mortgage Loans for Certificate Group 1
shall be allocated first to the Class SGI-B Regular Interest (until reduced to
zero) and then to the Class SGI-A Regular Interests (until reduced to zero).
Finally, payments of principal will be allocated to the Class P Certificate.
All payments of principal (and interest based upon each interest's respective
Pass-Through Rate) generated by and Realized Losses (including any related
interest shortfalls) on the Mortgage Loans for Certificate Group 2 shall be
allocated first to the Class SGII-B Regular Interest (until reduced to zero)
and then to the Class SGII-A Regular Interests (until reduced to zero).
Finally, payments of principal will be allocated to the Class P Certificate.
Set forth below are designations of Classes or Components of Certificates to
the categories used herein:
Accretion Directed Certificates ... None.
Accrual Certificates............... None.
Book-Entry Certificates............ All Classes of Certificates other than the Physical
Certificates.
COFI Certificates.................. None.
Component Certificates............. Class P Certificates.
Components......................... For purposes of calculating distributions of principal
and/or interest, the Component Certificates, if any,
will be comprised of multiple payment components having
the designations, Initial Component Balances or Notional
Amounts and Pass-Through Rates set forth below:
Initial
Principal
Balance Pass-Through Rate
Component Designation Component Component
----------------------- ---------------- ----------------------
Class 1-P $50 N/A
Class 2-P $50 N/A
Delay Certificates................. All interest-bearing Classes of Certificates other than
any Non-Delay Certificates.
7
ERISA-Restricted Certificates...... Class A-R and Private Certificates and Certificates of any
Class that cease to satisfy the rating requirements of the
Underwriter's Exemption.
Fixed Rate Certificates............ All Classes of Offered Certificates except LIBOR
Certificates.
Group 1 Certificates............... Class 1-A, Class 1-A-2, Class 1-A-3, Class 1-A-4, Class
1-A-5, Class 1-A-IO, Class 1-M-1, Class 1-M-2, Class
1-B, and Class A-R Certificates.
Group 2 Certificates............... Class 2-A-1, Class 2-A-2, Class 2-A-3, Class 2-A-4,
Class 2-A-5, Class 2-A-IO, Class 2-M-1,
Class 2-M-2 and Class 2-B Certificates.
Group 1 Class A Certificates....... Class 1-A-1, Class 1-A-2, Class 1-A-3, Class 1-A-4 and
Class 1-A-5 Certificates.
Group 2 Class A Certificates....... Class 2-A-1, Class 2-A-2, Class 2-A-3, Class 2-A-4 and
Class 2-A-5 Certificates.
Group 1 Mezzanine Certificates..... Class 1-M-1 and Class 1-M-2 Certificates.
Group 2 Mezzanine Certificates..... Class 2-M-1 and Class 2-M-2 Certificates.
Group 1 Subordinated Certificates.. Group 1 Mezzanine Certificates and Class 1-B
Certificates.
Group 2 Subordinated Certificates.. Group 2 Mezzanine Certificates and Class 2-B
Certificates.
Group 1 Intermediate
REMIC Regular Interests............ Class I1A-1 Interest, Class I1A-2 Interest, Class I1A-3
Interest, Class I1A-4 Interest, Class I1A-5 Interest,
Class I1M-1 Interest, Class I1M-2 Interest, Group 1
Accrual Directed Class and Class I1B Interest Regular
Interest.
Group 2 Intermediate
REMIC Regular Interests............ Class I2A-1 Interest, Class I2A-2 Interest, Class I2A-3
Interest, Class I2A-4 Interest, Class I2A-5 Interest,
Class I2M-1 Interest, Class I2M-2 Interest, Group 2
Accrual Directed Class and Class I2B Interest Regular
Interest.
Inverse Floating Rate Certificates. None.
LIBOR Certificates................. Class 1-A-1 and Class 2-A-1 Certificates.
8
Mezzanine Certificates............. Class 1-M-1, Class 1-M-2, Class 2-M-1, and Class 2-M-2
Certificates.
Non-Delay Certificates............. LIBOR Certificates.
Notional Amount Certificates....... Class A-IO Certificates and Class OC Certificates.
Offered Certificates............... All Classes of Certificates other than the Private
Certificates.
Physical Certificates.............. Class A-R, Class P and Class OC Certificates.
Planned Principal Classes.......... None.
Primary Planned Principal Classes.. None.
Principal Only Certificates........ None.
Private Certificates............... Class OC and Class P Certificates.
Rating Agencies.................... ▇▇▇▇▇'▇ and S&P.
Regular Certificates............... All Classes of Certificates other than the Class A-R
Certificates.
Residual Certificates.............. Class A-R Certificates
Scheduled Principal Classes........ None.
Secondary Planned
Principal Classes.................. None.
Senior Certificates................ All Offered Certificates other than the Subordinated
Certificates.
Subordinated Certificates.......... Mezzanine Certificates and Class B Certificates.
Support Classes.................... None.
Targeted Principal Classes......... None.
With respect to any of the foregoing designations as to which the
corresponding reference is "None," all defined terms and provisions herein
relating solely to such designations shall be of no force or effect, and any
calculations herein incorporating references to such designations shall be
interpreted without reference to such designations and amounts. Defined terms
and provisions herein relating to statistical rating agencies not designated
above as Rating Agencies shall be of no force or effect. References to "Class
A," "Class A-1," "Class ▇- ▇," "▇▇▇▇▇ ▇- ▇," "Class A-4," "Class A-5," "Class
A-IO," "Class M-1," "Class ▇-▇," "▇▇▇▇▇ ▇," "Class OC," "Mezzanine
Certificates," and "Subordinated Certificates" are references to those Classes
Certificates of either or both Certificate Groups of similar designations, as
the context
9
requires. If the aggregate Stated Principal Balance of the Initial Mortgage
Loans on the Closing Date is equal to or greater than the aggregate Class
Certificate Balances of the Certificates as of such date, all references
herein to "Funding Period", "Funding Period Distribution Date", "Pre-funding
Amount", "Pre-funding Loan Account", "Subsequent Mortgage Loan", "Subsequent
Transfer Agreement" and "Subsequent Transfer Date" shall be of no force or
effect and all provisions herein related thereto shall similarly be of no
force or effect.
10
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions.
Unless the context requires a different meaning, capitalized terms are
used in this Agreement as defined below.
Accretion Directed Certificates: As specified in the Preliminary
Statement.
Accrual Amount: Not applicable.
Accrual Certificates: As specified in the Preliminary Statement.
Accrual Period: For (a) each Class of LIBOR Certificates and
corresponding lower-tier REMIC interest for a given Distribution Date, the
period commencing on the immediately preceding Distribution Date (or, in the
case of the first such Accrual Period, commencing on the Closing Date) and
ending on the day immediately preceding such Distribution Date based on the
actual number of days elapsed and a 360-day year and (b) all other classes of
Offered Certificates for a given Distribution Date, the calendar month
preceding the month of such Distribution Date based on a 360-day year
consisting of twelve 30-day months.
Accrual Termination Date: Not applicable.
Adjusted Group 1 Net WAC Rate: As to any Distribution Date, will be a
per annum rate equal to a fraction, expressed as a percentage, (i) the
numerator of which is the difference of (A) the product of the Group 1 Net WAC
Rates (as of the first day of the related Due Period) and the applicable
aggregate Stated Principal Balance of the Mortgage Loans related to
Certificate Group 1 (for the immediately preceding Distribution Date), less
(B) the interest payable to the Class 1-A-IO Certificate for such date, and
(ii) the denominator of which is the aggregate Stated Principal Balance of the
Mortgage Loans related to Certificate Group 1 immediately preceding such
Distribution Date.
Adjusted Group 2 Net WAC Rate: As to any Distribution Date, will be a
per annum rate equal to a fraction, expressed as a percentage, (i) the
numerator of which is the difference of (A) the product of the Group 2 Net WAC
Rates (as of the first day of the related Due Period) and the applicable
aggregate Stated Principal Balance of the Mortgage Loans related to
Certificate Group 2 (for the immediately preceding Distribution Date), less
(B) the interest payable to the Class 2-A-IO Certificate for such date, and
(ii) the denominator of which is the aggregate Stated Principal Balance of the
Mortgage Loans related to Certificate Group 2 immediately preceding such
Distribution Date.
Adjusted Mortgage Rate: As to each Mortgage Loan and at any time, the
per annum rate equal to the Mortgage Rate less the sum of the Master Servicing
Fee Rate and the related Servicing Fee Rate.
1
Adjusted Net Mortgage Rate: As to each Mortgage Loan, and at any time,
the per annum rate equal to the Mortgage Rate less the related Expense Fee
Rate.
Advance: As to a Loan Group, the payment required to be made by the
Master Servicer for any Distribution Date pursuant to Section 4.01, the amount
of that payment being equal to the aggregate of payments of principal and
interest (net of the Master Servicing Fee and the applicable Servicing Fee and
net of any net proceeds in the case of any REO Property) on the Mortgage Loans
in the Loan Group that were due during the related Due Period and not received
as of the close of business on the related Determination Date, less the
aggregate amount of any such delinquent payments that the Master Servicer has
determined would constitute a Nonrecoverable Advance if advanced.
Agreement: This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
Allocated Realized Loss Amount: For any Distribution Date and any
Class of Subordinated Certificates, an amount equal to the sum of any Applied
Realized Loss for the related Loan Group allocated to that Class of
Certificates on that Distribution Date and any Unpaid Realized Loss Amount for
any such Class of Certificates.
Amount Held for Future Distribution: As to the Certificates in either
Certificate Group on any Distribution Date, the aggregate amount held in the
Certificate Account at the close of business on the related Determination Date
on account of (i) Principal Prepayments and Liquidation Proceeds on the
Mortgage Loans in the related Loan Group received after the end of the related
Prepayment Period and (ii) all Scheduled Payments on the Mortgage Loans in the
related Loan Group due after the end of the related Due Period.
Applied Realized Loss: As to either Certificate Group and Distribution
Date, the excess, if any, of (x) the sum of (i) the aggregate Class
Certificate Balance of the Certificates in that Certificate Group and (ii) the
related Class P Component over (y) the sum of (i) the aggregate Stated
Principal Balance of the Mortgage Loans in the related Loan Group and (ii) the
related Pre-Funding Amount, if any.
Appraised Value: With respect to any Mortgage Loan, the Appraised
Value of the related Mortgaged Property shall be: (i) with respect to a
Mortgage Loan other than a Refinance Loan, the lesser of (a) the value of the
Mortgaged Property based upon the appraisal made at the time of the
origination of such Mortgage Loan and (b) the sales price of the Mortgaged
Property at the time of the origination of such Mortgage Loan; (ii) with
respect to a Refinance Loan, the value of the Mortgaged Property based upon
the appraisal made at the time of the origination of such Refinance Loan.
Available Funds: For any Distribution Date and the Mortgage Loans in a
Loan Group will equal the sum of (a) all monthly payments of principal and
interest due on each Mortgage Loan on the related Due Date to the extent
received or advanced, (b) the principal and interest portions of the purchase
price of each Mortgage Loan in that Loan Group that was repurchased by the
Seller or another person pursuant to this Agreement as of such Distribution
Date, (c) the Substitution Adjustment Amount in connection with any
2
Deleted Mortgage Loan in that Loan Group received with respect to such
Distribution Date, (d) any Insurance Proceeds or Liquidation Proceeds
allocable to recoveries of principal and interest of Mortgage Loans in that
Loan Group that are not yet Liquidated Mortgage Loans received during the
calendar month preceding the month of such Distribution Date, (e) with respect
to each Mortgage Loan in that Loan Group that became a Liquidated Mortgage
Loan during the calendar month preceding the month of such Distribution Date,
the amount of the Liquidation Proceeds allocable to principal and interest
received with respect to such Mortgage Loan, (f) all partial and full
principal prepayments with respect to the Mortgage Loans in that Loan Group
(exclusive of any related Prepayment Charges) by borrowers received during the
calendar month preceding the month of such Distribution Date and (g) for the
Distribution Dates during and the Distribution Date immediately following the
end of the Pre-Funding Period, any amounts withdrawn from the related
Capitalized Interest Account, if any, and on the Distribution Date immediately
following the end of the Pre-Funding Period, any amounts remaining in the
Pre-Funding Account related to that Loan Group, excluding any reinvestment
earnings. The Holders of the Class P Certificates will be entitled to all
Prepayment Charges received on the Mortgage Loans in each Loan Group and such
amounts will not be available for distribution to the Holders of the Offered
Certificates.
Basic Principal Distribution Amount: For any Distribution Date and
Loan Group, the excess of (i) the related Principal Remittance Amount for the
Distribution Date over (ii) the related Overcollateralization Release Amount,
if any, for the Distribution Date.
Blanket Mortgage: The mortgages encumbering a Cooperative Property.
Book-Entry Certificates: As specified in the Preliminary Statement.
Book-Entry Certificates: As specified in the Preliminary Statement.
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii) a
day on which banking institutions in the City of New York, New York, or the
State of California, or the city in which the Corporate Trust Office of the
Trustee is located are authorized or obligated by law or executive order to be
closed.
Capitalized Interest Account: Either of the Group 1 Capitalized
Interest Account or the Group 2 Capitalized Interest Account.
Capitalized Interest Requirement: For the Distribution Date in
September 2001 and each Loan Group the sum of (1) the product of (a) the
excess of the aggregate Stated Principal Balance of the Mortgage Loans in that
Loan Group plus the related Pre-Funding Amount at the beginning of the related
Due Period over the aggregate State Principal Balance of the Mortgage Loans in
that Loan Group and (b) the Subsequent Mortgage Loans in that Loan Group that
have a payment due in the related Due Period, and (2) a fraction, the
numerator of which is the weighted average of the Adjusted Mortgage Rates of
the Mortgage Loans in that Loan Group as of the first day of the calendar
month preceding the month of such Distribution Date and the denominator of
which is 12.
Carryover Reserve Fund Account: Either of the two separate Eligible
Accounts created and maintained by the Trustee pursuant to Section 3.06(h) in
the name of the Trustee for the benefit of the
3
related LIBOR Certificateholders and designated "Bankers Trust Company of
California, N.A. in trust for registered holders of Residential Asset
Securitization Trust 2001-A1, Mortgage Pass-Through Certificates, Series
2001-A, [Class 1-A-1] [Class 2-A-1]." Funds in each Carryover Reserve Fund
Account (other than investment income) shall be held in trust for the related
Certificateholders for the uses and purposes set forth in this Agreement. The
Carryover Reserve Fund Accounts will not be an asset of any REMIC created
hereunder.
Certificate: Any one of the Certificates executed by the Trustee in
substantially the forms attached as exhibits.
Certificate Account: The separate Eligible Account or Accounts created
and maintained by the Master Servicer pursuant to Section 3.06(c) with a
depository institution in the name of the Master Servicer for the benefit of
the Trustee on behalf of Certificateholders and designated "IndyMac Bank,
F.S.B., in trust for the registered holders of Residential Asset
Securitization Trust 2001-A1, Mortgage Pass-Through Certificates, Series
2001-A."
Certificate Balance: For any Offered Certificate (other than a Class
A-IO Certificate) at any date, the maximum dollar amount of principal to which
the Holder of that Certificate is then entitled, such amount being equal to
the Denomination of the Certificate minus all distributions of principal
previously made with respect thereto and in the case of any Subordinated
Certificates, reduced by any Allocated Realized Loss Amounts applicable to
that Certificate. The Class A-IO Certificates have no Certificate Balance. As
to any Class of Class OC Certificates as of any date of determination the
excess, if any, of (a) the then aggregate Stated Principal Balance of the
Mortgage Loans in the related Loan Group plus the related Pre-Funding Amount
over (b) the then aggregate Class Certificate Balance of all Classes of
Certificates (other than the Class OC Certificates) in that Loan Group.
Certificate Group: Any of the Group 1 Certificates or the Group 2
Certificates, as applicable.
Certificate Owner: Of a Book-Entry Certificate, the Person who is the
beneficial owner of the Book-Entry Certificate.
Certificate Register: The register maintained pursuant to Section 5.02.
Certificateholder or Holder: The person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purpose of
giving any consent pursuant to this Agreement, any Certificate registered in
the name of the Depositor or any affiliate of the Depositor is not Outstanding
and the Percentage Interest evidenced thereby shall not be taken into account
in determining whether the requisite amount of Percentage Interests necessary
to effect a consent has been obtained, except that if the Depositor or its
affiliates own 100% of the Percentage Interests evidenced by a Class of
Certificates, the Certificates shall be Outstanding for purposes of any
provision of this Agreement requiring the consent of the Holders of
Certificates of a particular Class as a condition to the taking of any action.
The Trustee is entitled to rely conclusively on a certification of the
Depositor or any affiliate of the Depositor in determining which Certificates
are registered in the name of an affiliate of the Depositor.
4
Class: All Certificates bearing the same class designation as set
forth in the Preliminary Statement.
Class A Principal Distribution Amount: For each Certificate Group and
any Distribution Date, the excess of
(i) the aggregate Class Certificate Balance of the related Class A
Certificates immediately prior to that Distribution Date over
(ii) the positive difference between (a) the sum of the aggregate
Stated Principal Balance of the Mortgage Loans and the related Pre-Funding
Amount in the related Loan Group as of the last day of the related Due Period,
after reduction for Realized Losses incurred on the Mortgage Loans in the
related Loan Group in the related Prepayment Period and (b) the sum of the
aggregate Stated Principal Balance of the Mortgage Loans and the related
Pre-Funding Amount in that Loan Group as of the last day of the related Due
Period, after reduction for Realized Losses incurred on the Mortgage Loans in
the related Loan Group in the related Prepayment Period multiplied by the sum
of (A) 12.00% and (B) the Current Specified Overcollateralization Percentage.
Class B Principal Distribution Amount: For each Certificate Group and
any Distribution Date, the excess of
(i) the Class Certificate Balance of the related Class B Certificates
immediately prior to that Distribution Date over
(ii) the positive difference between (a) the sum of the aggregate
Stated Principal Balance of the Mortgage Loans and the related Pre-Funding
Amount in the related Loan Group as of the last day of the related Due Period,
after reduction for Realized Losses incurred on the Mortgage Loans in the
related Loan Group in the related Prepayment Period and (b) the sum of (1) the
aggregate Class Certificate Balance of the related Class A Certificates (after
taking into account the payment of the related Class A Principal Distribution
Amount on such Distribution Date), (2) the Class Certificate Balance of the
related Class M-1 Certificates (after taking into account the payment of the
related Class M-1 Principal Distribution Amount on such Distribution Date),
(3) the Class Certificate Balance of the related Class M-2 Certificates (after
taking into account the payment of the related Class M-2 Principal
Distribution Amount on such Distribution Date) and (4) the sum of the
aggregate Stated Principal Balance of the Mortgage Loans and the related
Pre-Funding Amount in the related Loan Group as of the last day of the related
Due Period, after reduction for Realized Losses incurred on the Mortgage Loans
in the related Loan Group in the related Prepayment Period multiplied by the
Current Specified Overcollateralization Percentage.
Class Certificate Balance: For any Class of Offered Certificates
(other than the Class A-IO Certificates) as of any date of determination, the
aggregate of the Certificate Balances of all Certificates of the Class as of
that date. As to each Class of Class OC Certificates as of any date of
determination the excess, if any, of (a) the then aggregate Stated Principal
Balance of the Mortgage Loans in the related Loan Group plus the related
Pre-Funding Amount over (b) the then aggregate Class Certificate Balance of
all Classes of Certificates in that Certificate Group (other than the related
Class of Class OC Certificates). As
5
to the Class P Certificates as of any date of determination, the sum of the
component balances of the Class P Components minus amounts previously
distributed thereto.
Class M-1 Principal Distribution Amount: For each Certificate Group
and any Distribution Date, the excess of
(i) the Class Certificate Balance of the related Class M-1
Certificates immediately prior to that Distribution Date over
(ii) the positive difference between (a) the sum of the aggregate
Stated Principal Balance of the Mortgage Loans and the related Pre-Funding
Amount in the related Loan Group as of the last day of the related Due Period
after reduction for Realized Losses incurred in the related Prepayment Period
and (b) the sum of (1) the aggregate Class Certificate Balance of the related
Class A Certificates (after taking into account the payment of the related
Class A Principal Distribution Amount on such Distribution Date) and (2) the
sum of the aggregate Stated Principal Balance of the Mortgage Loans and the
related Pre-Funding Amount in that Loan Group as of the last day of the
related Due Period, after reduction for Realized Losses incurred in the
related Prepayment Period multiplied by the sum of (A) 7.00% and (B) the
Current Specified Overcollateralization Percentage.
Class M-2 Principal Distribution Amount: For each Certificate Group
and any Distribution Date, the excess of
(i) the Class Certificate Balance of the related Class M-2
Certificates immediately prior to that Distribution Date over
(ii) the positive difference between (a) the sum of the aggregate
Stated Principal Balance of the Mortgage Loans and the related Pre-Funding
Amount in the related Loan Group as of the last day of the related Due Period
after reduction for Realized Losses incurred in the related Prepayment Period,
and (b) the sum of (1) the aggregate Class Certificate Balance of the related
Class A Certificates (after taking into account the payment of the related
Class A Principal Distribution Amount on such Distribution Date), (2) the
Class Certificate Balance of the related Class M-1 Certificates (after taking
into account the payment of the related Class M-1 Principal Distribution
Amount on such Distribution Date), (3) the sum of the aggregate Stated
Principal Balance of the Mortgage Loans and the related Pre-Funding Amount in
that Loan Group as of the last day of the related Due Period, after reduction
for Realized Losses incurred in the related Prepayment Period multiplied by
the sum of (A) 3.00% and (B) the Current Specified Overcollateralization
Percentage.
Class OC Distributable Amount: With respect to any Distribution Date
and Class of Class OC Certificates, the sum of (a) the amount of interest
accrued during the related Accrual Period at the related Pass-Through Rate on
the Notional Amount calculated as specified in the Preliminary Statement plus
(b) any Overcollateralization Release Amounts, less any amounts distributed
pursuant to Section 4.02(I)(iii) 1. through 8. hereof on such Distribution
Date.
6
Closing Date: August 30, 2001.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
Collection Account: As defined in Section 3.06(b).
Compensating Interest: For any Distribution Date, 0.125% multiplied by
one-twelfth multiplied by the sum of the aggregate Stated Principal Balance of
the Mortgage Loans and the related Pre-Funding Amount as of the first day of
the prior month.
Coop Shares: Shares issued by a Cooperative Corporation.
Cooperative Corporation: The entity that holds title (fee or an
acceptable leasehold estate) to the real property and improvements
constituting the Cooperative Property and that governs the Cooperative
Property, which Cooperative Corporation must qualify as a Cooperative Housing
Corporation under Section 216 of the Code.
Cooperative Loan: Any Mortgage Loan secured by Coop Shares and a
Proprietary Lease.
Cooperative Property: The real property and improvements owned by the
Cooperative Corporation, including the allocation of individual dwelling units
to the holders of the Coop Shares of the Cooperative Corporation.
Cooperative Unit: A single family dwelling located in a Cooperative
Property.
Corporate Trust Office: The designated office of the Trustee in the
State of California at which at any particular time its corporate trust
business with respect to this Agreement is administered, which office at the
date of the execution of this Agreement is located at ▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: Trust Administration-INO101, and
which is the address to which notices to and correspondence with the Trustee
should be directed.
Corresponding Class: With respect to each Subsidiary REMIC Regular
Interest, any Class of Certificates or Components appearing opposite such
Subsidiary REMIC Regular Interest in the Preliminary Statement.
Current Specified Overcollateralization Percentage: For any
Certificate Group and Distribution Date, the percentage obtained by dividing
(a) the Overcollateralization Target Amount by (b) the sum of the aggregate
Stated Principal Balance of the Mortgage Loans and the related Pre-Funding
Amount in the related Loan Group as of the last day of the related Due Period
(after reduction for Realized Losses incurred on the Mortgage Loans in the
related Loan Group during the related Prepayment Period).
Cut-off Date: For each Initial Mortgage Loan, August 1, 2001; for each
Subsequent Mortgage Loan, the later of its date of origination and the first
day of the month in which the Subsequent Mortgage Loan is transferred to the
Trust Fund.
7
Cut-off Date Loan Group Principal Balance: For any Loan Group and
Cut-off Date, the aggregate Stated Principal Balance of all Mortgage Loans in
that Loan Group as of that date.
Cut-off Date Pool Principal Balance: For any Cut-off Date, the
aggregate Stated Principal Balance of all Mortgage Loans in all Loan Groups as
of that date.
Cut-off Date Principal Balance: As to any Mortgage Loan, its Stated
Principal Balance as of the close of business on the related Cut-off Date.
Debt Service Reduction: For any Mortgage Loan, a reduction by a court
of competent jurisdiction in a proceeding under the Bankruptcy Code in the
Scheduled Payment for the Mortgage Loan that became final and non-appealable,
except a reduction resulting from a Deficient Valuation or a reduction that
results in a permanent forgiveness of principal.
Deficient Valuation: For any Mortgage Loan, a valuation by a court of
competent jurisdiction of the Mortgaged Property in an amount less than the
then outstanding indebtedness under the Mortgage Loan, or any reduction in the
amount of principal to be paid in connection with any Scheduled Payment that
results in a permanent forgiveness of principal, which valuation or reduction
results from an order of the court that is final and non-appealable in a
proceeding under the Bankruptcy Code.
Definitive Certificates: Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 5.02(e).
Delay Certificates: As specified in the Preliminary Statement.
Delay Delivery Mortgage Loans: (i) The Initial Mortgage Loans
identified on the Mortgage Loan Schedule for which all or a portion of a
related Mortgage File is not delivered to the Trustee by the Closing Date, and
(ii) all Subsequent Mortgage Loans. The Depositor shall deliver the Mortgage
Files to the Trustee:
(A) for at least 70% of the Initial Mortgage Loans, not later than the
Closing Date, and
(B) for the remaining 30% of the Initial Mortgage Loans, not later
than five Business Days following the Closing Date.
To the extent that the Seller is in possession of any Mortgage Files
for any Delay Delivery Loan, until delivery of the Mortgage File to the
Trustee as provided in Section 2.01, the Seller shall hold the files as Master
Servicer, as agent and in trust for the Trustee.
Deleted Mortgage Loan: As defined in Section 2.03(c).
Delinquent: A Mortgage Loan is "Delinquent" if any monthly payment due
on a Due Date is not made by the close of business on the next scheduled Due
Date for such Mortgage Loan. A Mortgage Loan is "30 days Delinquent" if such
monthly payment has not been received by the close of business on the
corresponding day of the month immediately succeeding the month in which such
monthly payment was
8
due. The determination of whether a Mortgage Loan is "60 days Delinquent", "90
days Delinquent", etc. shall be made in like manner.
Denomination: For each Certificate, the amount on the face of the
Certificate as the "Initial Certificate Balance of this Certificate" or the
"Initial Notional Amount of this Certificate" or, if neither of the foregoing,
the Percentage Interest appearing on the face of the Certificate.
Depositor: IndyMac MBS, Inc., a Delaware corporation, or its successor
in interest.
Depository: The initial Depository shall be The Depository Trust
Company, the nominee of which is CEDE & Co., as the registered Holder of the
Book-Entry Certificates. The Depository shall at all times be a "clearing
corporation" as defined in Section 8-102(a)(5) of the Uniform Commercial Code
of the State of New York.
Depository Participant: A broker, dealer, bank, or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: As to any Distribution Date, the 18th day of each
month or if that day is not a Business Day the next Business Day, except that
if the next Business Day is less than two Business Days before the related
Distribution Date, then the Determination Date shall be the Business Day
preceding the 18th day of the month.
Distribution Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.06(e) in the name of the
Trustee for the benefit of the Certificateholders and designated "Bankers
Trust Company of California, N.A. in trust for registered holders of
Residential Asset Securitization Trust 2001-A1, Mortgage Pass-Through
Certificates, Series 2001-A." Funds in the Distribution Account shall be held
in trust for the Certificateholders for the uses and purposes set forth in
this Agreement.
Distribution Account Deposit Date: As to any Distribution Date, 12:30
P.M. Pacific time on the Business Day preceding the Distribution Date.
Distribution Date: The 25th day of each calendar month after the
initial issuance of the Certificates, or if that day is not a Business Day,
the next Business Day, commencing in September 2001.
Due Date: For any Mortgage Loan, the first day of the month.
Due Period: For any Distribution Date, the period commencing on the
second day of the month preceding the month in which the Distribution Date
occurs and ending on the first day of the month in which the Distribution Date
occurs.
Eligible Account: Any of
9
(i) an account maintained with a federal or state chartered depository
institution or trust company the short-term unsecured debt obligations of
which (or, in the case of a depository institution or trust company that is
the principal subsidiary of a holding company, the debt obligations of the
holding company, but only if ▇▇▇▇▇'▇ is not a Rating Agency) have the highest
short-term ratings of each Rating Agency at the time any amounts are held on
deposit therein, or
(ii) an account in a depository institution or trust company that is
insured by the FDIC or the SAIF (to the limits established by the FDIC or the
SAIF) and the uninsured deposits in which accounts are otherwise secured such
that, as evidenced by an Opinion of Counsel delivered to the Trustee and to
each Rating Agency, the Certificateholders have a claim on the funds in the
account or a perfected first priority security interest against any collateral
(which shall be limited to Permitted Investments) securing the funds in the
account that is superior to claims of any other depositors or creditors of the
depository institution or trust company in which the account is maintained, or
(iii) a trust account or accounts maintained with the trust department
of a federal or state chartered depository institution or trust company,
acting in its fiduciary capacity, or
(iv) any other account acceptable to each Rating Agency.
Eligible Accounts may bear interest, and may include, if otherwise qualified
under this definition, accounts maintained with the Trustee.
ERISA: The Employee Retirement Income Security Act of 1974.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements of Prohibited
Transaction Exemption 2000-58, 65 Fed. Reg. 67765 (2000) (or any successor
thereto), or any substantially similar administrative exemption granted by the
U.S. Department of Labor.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
Escrow Account: The Eligible Account or Accounts established and
maintained pursuant to Section 3.07(a).
Event of Default: As defined in Section 7.01.
Excess Proceeds: For any Liquidated Mortgage Loan, the excess of
(a) all Liquidation Proceeds from the Mortgage Loan received in the
calendar month in which the Mortgage Loan became a Liquidated Mortgage Loan,
net of any amounts previously reimbursed to the Master Servicer as
Nonrecoverable Advances with respect to the Mortgage Loan pursuant to Section
3.09(a)(ii), over
10
(b) the sum of (i) the unpaid principal balance of the Liquidated
Mortgage Loan as of the Due Date in the month in which the Mortgage Loan
became a Liquidated Mortgage Loan plus (ii) accrued interest at the Mortgage
Rate from the Due Date for which interest was last paid or advanced (and not
reimbursed) to Certificateholders up to the Due Date applicable to the
Distribution Date following the calendar month during which the liquidation
occurred.
Expense Fee Rate: As to each Mortgage Loan, the sum of the related
Master Servicing Fee Rate, Servicing Fee Rate, Trustee Fee Rate, and the rate
at which lender-paid primary mortgage insurance premiums are calculated.
Extra Principal Distribution Amount: As to the first Distribution
Date, zero. As of any Distribution Date thereafter and any Certificate Group,
the lesser of (x) the related Net Monthly Excess Cashflow for that
Distribution Date and (y) the related Overcollateralization Deficiency Amount
for that Distribution Date.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of
the Emergency Home Finance Act of 1970, as amended, or any successor thereto.
Fitch: Fitch, Inc., or any successor thereto. If Fitch is designated
as a Rating Agency in the Preliminary Statement, for purposes of Section
10.05(b) the address for notices to Fitch shall be Fitch, Inc., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: MBS Monitoring - IndyMac 2001-A,
or any other address Fitch furnishes to the Depositor and the Master Servicer.
FNMA: The Federal National Mortgage Association, a federally chartered
and privately owned corporation organized and existing under the Federal
National Mortgage Association Charter Act, or any successor thereto.
Group 1 Certificates: As specified in the Preliminary Statement.
Group 1 Capitalized Interest Account: The separate Eligible Account
created and maintained by the Trustee pursuant to Section 3.06 in the name of
the Trustee for the benefit of the Certificateholders and designated "Bankers
Trust Company of California, N.A., in trust for registered holders of
Residential Asset Securitization Trust 2001-A1, Mortgage Pass-Through
Certificates, Series 2001-A." Funds in the Group 1 Capitalized Interest
Account (other than investment income) shall be held in trust for the
Certificateholders for the uses and purposes in this Agreement and shall not
be a part of any REMIC created under this Agreement. Any investment income
earned from Permitted Investments made with funds in the Group 1 Capitalized
Interest Account will be for the account of the Seller, except to the extent
provided in Section 3.06(g).
11
Group 1 Net WAC Rate: As to any Distribution Date, will be a per annum
rate equal to the weighted average of the Adjusted Net Mortgage Rates of the
Mortgage Loans in Loan Group 1 as of the first day of the month preceding the
month in which such Distribution Date occurs (in the case of each Class of
LIBOR Certificates in Certificate Group 1, adjusted to an effective rate
reflecting the accrual of interest calculated on the basis of a 360-day year
and the actual number of days elapsed during the related Accrual Period),
multiplied by a fraction, the numerator of which is 30 and the denominator of
which is the actual number of days in the related Accrual Period.
Group 1 Pre-Funding Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.06 in the name of the Trustee
for the benefit of the Certificateholders and designated "Bankers Trust
Company of California, N.A., in trust for registered holders of Residential
Asset Securitization Trust 2001-A1, Mortgage Pass-Through Certificates, Series
2001-A" allocated for the purchase of Subsequent Mortgage Loans to be included
in Loan Group 1. Funds in the Group 1 Pre-Funding Account shall be held in
trust for the Certificateholders for the uses and purposes set forth in this
Agreement and shall not be a part of any REMIC created under this Agreement.
Any investment income earned from Permitted Investments in the Group 1
Pre-Funding Account will be for the account of the Seller, except to the
extent provided in Sections 3.06(g).
Group 2 Certificates: As specified in the Preliminary Statement.
Group 2 Capitalized Interest Account: The separate Eligible Account
created and maintained by the Trustee pursuant to Section 3.06 in the name of
the Trustee for the benefit of the Certificateholders and designated "Bankers
Trust Company of California, N.A., in trust for registered holders of
Residential Asset Securitization Trust 2001-A1, Mortgage Pass-Through
Certificates, Series 2001-A." Funds in the Group 2 Capitalized Interest
Account (other than investment income) shall be held in trust for the
Certificateholders for the uses and purposes in this Agreement and shall not
be a part of any REMIC created under this Agreement. Any investment income
earned from Permitted Investments made with funds in the Group 2 Capitalized
Interest Account will be for the account of the Seller, except to the extent
provided in Section 3.06(g).
Group 2 Net WAC Rate: As to any Distribution Date, will be a per annum
rate equal to the weighted average of the Adjusted Net Mortgage Rates of the
Mortgage Loans in Loan Group 2 as of the first day of the month preceding the
month in which such Distribution Date occurs (in the case of each Class of
LIBOR Certificates in Certificate Group 2, adjusted to an effective rate
reflecting the accrual of interest calculated on the basis of a 360-day year
and the actual number of days elapsed during the related Accrual Period),
multiplied by a fraction, the numerator of which is 30 and the denominator of
which is the actual number of days in the related Accrual Period.
Group 2 Pre-Funding Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.06 in the name of the Trustee
for the benefit of the Certificateholders and designated "Bankers Trust
Company of California, N.A., in trust for registered holders of Residential
Asset Securitization Trust 2001-A1, Mortgage Pass-Through Certificates, Series
2001-A" allocated for the
12
purchase of Subsequent Mortgage Loans to be included in Loan Group 2. Funds in
the Group 2 Pre-Funding Account shall be held in trust for the
Certificateholders for the uses and purposes set forth in this Agreement and
shall not be a part of any REMIC created under this Agreement. Any investment
income earned from Permitted Investments in the Group 2 Pre-Funding Account
will be for the account of the Seller, except to the extent provided in
Section 3.06(g).
Group 1 Intermediate REMIC Accretion Directed Classes: As defined in
the Preliminary Statement.
Group 1 Intermediate REMIC Accrual Class: As defined in the
Preliminary Statement.
Group 2 Intermediate REMIC Accretion Directed Classes: As defined in
the Preliminary Statement.
Group 2 Intermediate REMIC Accrual Class: As defined in the
Preliminary Statement.
Indirect Participant: A broker, dealer, bank, or other financial
institution or other Person that clears through or maintains a custodial
relationship with a Depository Participant.
Initial LIBOR Rate: 3.775% per annum for Loan Group 1 and 3.580% per
annum for Loan Group 2.
Initial Mortgage Loan: Such of the Mortgage Loans transferred and
assigned to the Trustee on the Closing Date pursuant to the provisions hereof,
as from time to time are held as a part of the Trust Fund (including any REO
Property), the Mortgage Loans so held being identified on the Mortgage Loan
Schedule as of the Closing Date, notwithstanding foreclosure or other
acquisition of title of the related Mortgaged Property.
Insurance Policy: For any Mortgage Loan included in the Trust Fund,
any insurance policy, including all riders and endorsements thereto in effect,
including any replacement policy or policies for any Insurance Policies.
Insurance Proceeds: Proceeds paid by an insurer pursuant to any
Insurance Policy, in each case other than any amount included in such
Insurance Proceeds in respect of Insured Expenses.
Insured Expenses: Expenses covered by an Insurance Policy or any other
insurance policy with respect to the Mortgage Loans.
Interest Remittance Amount: For any Certificate Group and Distribution
Date, that portion of the Available Funds for such Certificate Group for such
Distribution Date allocable to interest.
Interest Settlement Rate for one-month deposits in U.S. dollars as
found on Telerate Page 3750 as of 11:00 a.m. London time on each LIBOR
Determination Date. If the rate does not appear on Telerate Page 3750, the
rate for that date will be determined on the basis of the rates at which
one-month U.S. dollar
13
deposits are offered by the Reference Banks at approximately 11:00 A.M.
(London time) on that date to prime banks in the London interbank market. In
that case, the Trustee will request the principal London office of each of the
Reference Banks to provide a quotation of its rate. If at least two quotations
are so provided, the rate for that date will be the arithmetic mean of the
quotations (rounded upwards if necessary to the nearest whole multiple of
1/16%). If fewer than two quotations are provided as requested, the rate for
that date will be the arithmetic mean of the rates quoted by major banks in
New York City, selected by the Master Servicer, at approximately 11:00 A.M.
(New York City time) on that date for one-month U.S. dollar loans to leading
European banks.
Intermediate REMIC: As defined in the Preliminary Statement.
Intermediate REMIC Regular Interest: As defined in the Preliminary
Statement.
IR Interest: As defined in the Preliminary Statement.
Latest Possible Maturity Date: The Distribution Date following the
third anniversary of the scheduled maturity date of the Mortgage Loan having
the latest scheduled maturity date as of the Cut-off Date.
Lender PMI Loans: Mortgage Loans with respect to which the lender
rather than the borrower acquired the primary mortgage guaranty insurance and
charged the related borrower an interest premium.
LIBOR: For any Accrual Period for the LIBOR Certificates, the rate
determined by the Trustee on the related LIBOR Determination Date on the basis
of the British Bankers' Association ("BBA") "Interest Settlement Rate" for
one-month deposits in U.S. dollars as found on Telerate Page 3750 as of 11:00
a.m. London time on each LIBOR Determination Date. If the rate does not appear
on Telerate Page 3750, the rate for that date will be determined on the basis
of the rates at which one-month U.S. dollar deposits are offered by the
Reference Banks at approximately 11:00 A.M. (London time) on that date to
prime banks in the London interbank market. In that case, the Trustee will
request the principal London office of each of the Reference Banks to provide
a quotation of its rate. If at least two quotations are so provided, the rate
for that date will be the arithmetic mean of the quotations (rounded upwards
if necessary to the nearest whole multiple of 1/16%). If fewer than two
quotations are provided as requested, the rate for that date will be the
arithmetic mean of the rates quoted by major banks in New York City, selected
by the Master Servicer, at approximately 11:00 A.M. (New York City time) on
that date for one-month U.S. dollar loans to leading European banks.
LIBOR Certificates: As specified in the Preliminary Statement.
LIBOR Determination Date: For any Accrual Period for the LIBOR
Certificates, the second London Business Day preceding the commencement of the
Accrual Period.
Liquidated Mortgage Loan: For any Distribution Date, a defaulted
Mortgage Loan (including any REO Property) that was liquidated in the calendar
month preceding the month of the Distribution Date and
14
as to which the Master Servicer has certified (in accordance with this
Agreement) that it has received all amounts it expects to receive in
connection with the liquidation of the Mortgage Loan, including the final
disposition of an REO Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds regardless
of when received, received in connection with the partial or complete
liquidation of defaulted Mortgage Loans, whether through trustee's sale,
foreclosure sale, or otherwise or amounts received in connection with any
condemnation or partial release of a Mortgaged Property, and any other
proceeds received in connection with an REO Property, less the sum of related
unreimbursed Servicing Fees, Servicing Advances, and Advances.
Loan Group: Any of Loan Group 1 or Loan Group 2, as applicable.
Loan Group 1: All Mortgage Loans so designated in the Mortgage Loan
Schedule.
Loan Group 2: All Mortgage Loans so designated in the Mortgage Loan
Schedule.
Loan-to-Value Ratio: For any Mortgage Loan and as of any date of
determination, is the fraction whose numerator is the original principal
balance of the related Mortgage Loan at that date of determination and whose
denominator is the Appraised Value of the related Mortgaged Property.
London Business Day: Any day on which dealings in deposits of United
States dollars are transacted in the London interbank market.
Lost Mortgage Note: Any Mortgage Note the original of which was
permanently lost or destroyed and has not been replaced.
Maintenance: For any Cooperative Unit, the rent paid by the Mortgagor
to the Cooperative Corporation pursuant to the Proprietary Lease.
Majority in Interest: As to any Class of Regular Certificates, the
Holders of Certificates of the Class evidencing, in the aggregate, at least
51% of the Percentage Interests evidenced by all Certificates of the Class.
Master REMIC: As described in the Preliminary Statement.
Master Servicer: IndyMac Bank, F.S.B., a federal savings bank, and its
successors and assigns, in its capacity as master servicer under this
Agreement.
Master Servicer Advance Date: As to any Distribution Date, 12:30 P.M.
Pacific time on the Business Day preceding the Distribution Date.
Master Servicing Fee: As to each Mortgage Loan and any Distribution
Date, one month's interest at the related Master Servicing Fee Rate on the
Stated Principal Balance of the Mortgage Loan or, in the event
15
of any payment of interest which accompanies a Principal Prepayment in Full
made by the Mortgagor, interest at the Master Servicing Fee Rate on the Stated
Principal Balance of the Mortgage Loan for the period covered by the payment
of interest, subject to reduction as provided in Section 3.15.
Master Servicing Fee Rate: For each Mortgage Loan, 0%.
Modified Mortgage Loan: Any Mortgage Loan that the Master Servicer has
modified pursuant to Section 3.12.
Monthly Interest Distributable Amount: For any Distribution Date and
each Class of Offered Certificates, the amount of interest accrued during the
related Accrual Period at the related Pass-Through Rate on the related Class
Certificate Balance, or in the case of a Class of Class A-IO Certificates on
the related Notional Amount, of such Class immediately prior to such
Distribution Date, in each case, reduced by any Net Prepayment Interest
Shortfalls allocated to such Class and any Relief Act Interest Shortfalls
(allocated to each Certificate based on its respective entitlements to
interest irrespective of any Prepayment Interest Shortfalls or shortfalls on
the Mortgage Loans in the related Loan Group resulting from Relief Act
Interest Shortfalls for such Distribution Date).
Monthly Statement: The statement delivered to the Certificateholders
pursuant to Section 4.06.
Moody's: ▇▇▇▇▇'▇ Investors Service, Inc., or any successor thereto. If
▇▇▇▇▇'▇ is designated as a Rating Agency in the Preliminary Statement, for
purposes of Section 10.05(b) the address for notices to Moody's shall be
▇▇▇▇▇'▇ Investors Service, Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Residential Loan Monitoring Group, or any other address that
Moody's furnishes to the Depositor and the Master Servicer.
Mortgage: The mortgage, deed of trust, or other instrument creating a
first lien on an estate in fee simple or leasehold interest in real property
securing a Mortgage Note.
Mortgage File: The mortgage documents listed in Section 2.01
pertaining to a particular Mortgage Loan and any additional documents
delivered to the Trustee to be added to the Mortgage File pursuant to this
Agreement.
Mortgage Loan Schedule: As of any date, the list set forth in Schedule
I of Mortgage Loans included in the Trust Fund on that date, separately
identifying the Initial Mortgage Loans and the Subsequent Mortgage Loans. The
Mortgage Loan Schedule shall be prepared by the Seller and shall set forth by
Loan Group the following information with respect to each Mortgage Loan:
(i) the loan number;
(ii) the Mortgagor's name and the street address of
the Mortgaged Property, including the zip
code;
(iii) the maturity date;
16
(iv) the original principal balance;
(v) the Cut-off Date Principal Balance;
(vi) the first payment date of the Mortgage Loan;
(vii) the Scheduled Payment in effect as of the
related Cut-off Date;
(viii) the Loan-to-Value Ratio at origination;
(ix) a code indicating whether the residential
dwelling at the time of origination was
represented to be owner-occupied;
(x) a code indicating whether the residential
dwelling is either (a) a detached single
family dwelling, (b) a dwelling in a PUD, (c)
a condominium unit, (d) a two- to four-unit
residential property, or (e) a Cooperative
Unit;
(xi) the Mortgage Rate;
(xii) the purpose for the Mortgage Loan;
(xiii) the type of documentation program pursuant to
which the Mortgage Loan was originated;
(xiv) whether the Mortgage Loan is in Loan Group 1
or Loan Group 2;
(xv) a code indicating whether the Mortgage Loan is
a borrower-paid mortgage insurance loan;
(xvi) the Servicing Fee Rate;
(xvii) a code indicating whether the Mortgage Loan is
a Lender PMI Loan;
(xviii)the coverage amount of any mortgage insurance;
(xix) with respect to the Lender PMI Loans, the
interest premium charged by the lender; and
(xx) a code indicating whether the Mortgage Loan is
a Delay Delivery Mortgage Loan.
The schedule shall also set forth the total of the amounts described under (v)
above for all of the Mortgage Loans.
Mortgage Loans: Such of the Mortgage Loans transferred and assigned to
the Trustee pursuant to either (i) this Agreement or (ii) a Subsequent
Transfer Agreement and this Agreement, as from time to time
17
are held as a part of the Trust Fund (including any REO Property), the
Mortgage Loans so held being identified on the Mortgage Loan Schedule,
notwithstanding foreclosure or other acquisition of title of the related
Mortgaged Property.
Mortgage Note: The original executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
Mortgage Rate: The annual rate of interest borne by a Mortgage Note
from time to time.
Mortgaged Property: The underlying property securing a Mortgage Loan,
which, with respect to a Cooperative Loan, is the related Coop Shares and
Proprietary Lease.
Mortgagor: The obligor on a Mortgage Note.
MR Interest: As defined in the Preliminary Statement.
Net Excess Spread: With respect to any Distribution Date and Loan
Group, a fraction, expressed as a percentage, the numerator of which is equal
to the excess of (x) the aggregate Stated Principal Balance of the Mortgage
Loans in that Loan Group immediately following the preceding Distribution Date
plus the Pre-Funding Amount related to that Loan Group, multiplied by the
Group 1 Net WAC Rate or Group 2 Net WAC Rate, as applicable, for such Loan
Group over (y) the aggregate Monthly Interest Distributable Amount for the
Offered Certificates related to such Loan Group for such Distribution Date,
and the denominator of which is an amount equal to the aggregate Stated
Principal Balance of the Mortgage Loans in that Loan Group immediately
following the preceding Distribution Date plus the Pre-Funding Amount related
to that Loan Group.
Net Liquidation Proceeds: As to any Liquidated Mortgage Loan, the
proceeds in connection with the disposition thereof, net of amounts
reimbursable to the Master Servicer for related Advances, Servicing Advances
and Servicing Fees in respect of such Mortgage Loan.
Net Monthly Excess Cashflow: For any Certificate Group and
Distribution Date, the sum of (a) any Overcollateralization Release Amount for
such Certificate Group and (b) the excess of (x) the Available Funds for such
Certificate Group for such Distribution Date over (y) the sum for such
Distribution Date of (A) the Monthly Interest Distributable Amounts for the
Offered Certificates in that Certificate Group, (B) the Unpaid Interest
Shortfall Amounts for the Class A and Class A-IO Certificates in the related
Certificate Group and (C) the related Principal Remittance Amount.
Net Prepayment Interest Shortfall: For any Distribution Date and any
Loan Group, the excess of the sum of the Prepayment Interest Shortfalls with
respect to the Loan Group for that Distribution Date over the sum of the
Compensating Interest payments made on that Distribution Date allocable to
that Loan Group.
Net Rate Carryover Shortfall Amount: For any Class of LIBOR
Certificates and any Distribution Date on which the Pass-Through Rate for such
Class of LIBOR Certificates is calculated pursuant to the
18
Adjusted Group 1 Net WAC Rate or the Adjusted Group 2 Net WAC Rate, as
applicable, the sum of: (i) the excess, if any, of the amount of interest such
Class of LIBOR Certificates would have been entitled to receive calculated on
the basis of LIBOR plus 0.13% over the actual Monthly Interest Distributable
Amount for such Class of LIBOR Certificates for such Distribution Date; (ii)
any amounts calculated pursuant to (i) above remaining unpaid to such Class of
LIBOR Certificates from prior Distribution Dates; and (iii) interest accrued
on such unpaid portion for the most recently ended Accrual Period on the
amount in clause (ii) calculated at a per annum rate equal to the LIBOR plus
0.13%.
Non-Delay Certificates: As specified in the Preliminary Statement.
Nonrecoverable Advance: Any portion of an Advance previously made or
proposed to be made by the Master Servicer, that, in the good faith judgment
of the Master Servicer, will not be ultimately recoverable by the Master
Servicer from the related Mortgagor, related Liquidation Proceeds or
otherwise.
Notional Amount: With respect to the Class 1-A-IO Certificates and any
Distribution Date, an amount equal to (x) on any of the first thirty
Distribution Dates, the lesser of (i) $57,000,000 and (ii) aggregate Stated
Principal Balance of the Mortgage Loans in Loan Group 1 as of the first day of
the month preceding the month in which such Distribution Date occurs (after
giving effect to scheduled payments of principal due during the Due Period, to
the extent received or advanced, and unscheduled collections of principal
received during the month prior to that date) and (y) on any Distribution Date
after the 30th Distribution Date, the Notional Amount of the Class 1-A-IO
Certificates shall equal $0.00. With respect to the Class 2-A-IO Certificates
and any Distribution Date, an amount equal to (x) on any of the first thirty
Distribution Dates, the lesser of (i) $14,000,000 and (ii) aggregate Stated
Principal Balance of the Mortgage Loans in Loan Group 2 as of the first day of
the month preceding the month in which such Distribution Date occurs (after
giving effect to scheduled payments of principal due during the Due Period
ending on that date, to the extent received or advanced, and unscheduled
collections of principal received during the month prior to that date) and (y)
on any Distribution Date after the 30th Distribution Date, the Notional Amount
of the Class 2-A-IO Certificates shall equal $0.00. With respect to the Class
OC Certificates and any Distribution Date, as specified in the Preliminary
Statement.
Notional Amount Certificates: As specified in the Preliminary
Statement.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: A certificate (i) signed by the Chairman of the
Board, the Vice Chairman of the Board, the President, a Managing Director, a
Vice President (however denominated), an Assistant Vice President, the
Treasurer, the Secretary, or one of the Assistant Treasurers or Assistant
Secretaries of the Depositor or the Master Servicer, or (ii) if provided for
in this Agreement, signed by a Servicing Officer, as the case may be, and
delivered to the Depositor and the Trustee as required by this Agreement.
Opinion of Counsel: For the interpretation or application of the REMIC
Provisions, a written opinion of counsel who is (i) in fact be independent of
the Depositor and the Master Servicer, (ii) not have any direct financial
interest in the Depositor or the Master Servicer or in any affiliate of
either, and (iii) not
19
be connected with the Depositor or the Master Servicer as an officer,
employee, promoter, underwriter, trustee, partner, director, or person
performing similar functions. Otherwise, a written opinion of counsel who may
be counsel for the Depositor or the Master Servicer, including in-house
counsel, reasonably acceptable to the Trustee.
Optional Termination Date: The Distribution Date on which the right
set forth in Section 9.01 hereof first becomes exercisable in accordance with
the conditions set forth in subsection (a) therein.
Original Mortgage Loan: The Mortgage Loan refinanced in connection
with the origination of a Refinance Loan.
OTS: The Office of Thrift Supervision.
Outstanding: For the Certificates as of any date of determination, all
Certificates theretofore executed and authenticated under this Agreement
except:
(i) Certificates theretofore canceled by the
Trustee or delivered to the Trustee for
cancellation; and
(ii) Certificates in exchange for which or in lieu
of which other Certificates have been executed
and delivered by the Trustee pursuant to this
Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan with a
Stated Principal Balance greater than zero that was not the subject of a
Principal Prepayment in Full before the Due Date and that did not become a
Liquidated Mortgage Loan before the Due Date.
Overcollateralization Deficiency Amount: For any Distribution Date and
either Loan Group, the excess of
(a) the Overcollateralization Target Amount for the related
Certificate Group applicable to the Distribution Date over
(a) the Overcollateralized Amount for the Certificate Group applicable
to the Distribution Date (after giving effect to distributions in respect of
the related Basic Principal Distribution Amount on such Distribution Date).
Overcollateralization Release Amount: For any Distribution Date and
Loan Group, the lesser of (a) the excess, if any, of the related
Overcollateralized Amount over the Overcollateralization Target Amount and (b)
the Principal Remittance Amount for that Loan Group.
Overcollateralization Target Amount: With respect to the first
Distribution Date, zero. With respect to any Distribution Date thereafter,
$2,875,000 with respect to Certificate Group 1 and $700,000 with respect to
Certificate Group 2.
20
Overcollateralized Amount: For each Certificate Group and as of any
Distribution Date and related Loan Group, the excess of
(a) the aggregate Stated Principal Balance of the Mortgage Loans in
the Loan Group as of the last day of the related Due Period plus the amount in
the related Pre-Funding Account (excluding investment earnings thereon) over
(b) the aggregate of the Class Certificate Balances of the
Certificates in the related Certificate Group, other than the related Class of
Class OC Certificates, as of the Distribution Date (after giving effect to the
payment of principal on the Certificates on the Distribution Date).
Ownership Interest: As to any Residual Certificate, any ownership
interest in the Certificate including any interest in the Certificate as its
Holder and any other interest therein, whether direct or indirect, legal or
beneficial.
Pass-Through Rate: For each Class of Certificates and each Subsidiary
Interest, the per annum rate set forth or calculated in the manner described
in the Preliminary Statement.
Percentage Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class,
the percentage interest being set forth on its face or equal to the percentage
obtained by dividing the Denomination of the Certificate by the aggregate of
the Denominations of all Certificates of the same Class.
Permitted Investments: At any time, any of the following:
(i) obligations of the United States or any agency thereof backed by
the full faith and credit of the United States;
(ii) general obligations of or obligations guaranteed by any state of
the United States or the District of Columbia receiving the highest long-term
debt rating of each Rating Agency, or any lower rating that will not result in
the downgrading or withdrawal of the ratings then assigned to the Certificates
by the Rating Agencies, as evidenced by a signed writing delivered by each
Rating Agency;
(iii) commercial or finance company paper that is then receiving the
highest commercial or finance company paper rating of each Rating Agency, or
any lower rating that will not result in the downgrading or withdrawal of the
ratings then assigned to the Certificates by the Rating Agencies, as evidenced
by a signed writing delivered by each Rating Agency;
(iv) certificates of deposit, demand or time deposits, or bankers'
acceptances issued by any depository institution or trust company incorporated
under the laws of the United States or of any state thereof and subject to
supervision and examination by federal or state banking authorities, provided
that the commercial paper or long-term unsecured debt obligations of the
depository institution or trust company (or in the case of the principal
depository institution in a holding company system, the commercial paper or
long-term unsecured debt obligations of the holding company, but only if
▇▇▇▇▇'▇ is not a Rating Agency)
21
are then rated one of the two highest long-term and the highest short-term
ratings of each Rating Agency for the securities, or any lower rating that
will not result in the downgrading or withdrawal of the ratings then assigned
to the Certificates by the Rating Agencies, as evidenced by a signed writing
delivered by each Rating Agency;
(v) demand or time deposits or certificates of deposit issued by any
bank or trust company or savings institution to the extent that the deposits
are fully insured by the FDIC;
(vi) guaranteed reinvestment agreements issued by any bank, insurance
company, or other corporation acceptable to the Rating Agencies at the time of
the issuance of the agreements, as evidenced by a signed writing delivered by
each Rating Agency;
(vii) repurchase obligations with respect to any security described in
clauses (i) and (ii) above, in either case entered into with a depository
institution or trust company (acting as principal) described in clause (iv)
above;
(viii) securities (other than stripped bonds, stripped coupons, or
instruments sold at a purchase price in excess of 115% of their face amount)
bearing interest or sold at a discount issued by any corporation incorporated
under the laws of the United States or any state thereof that, at the time of
the investment, have one of the two highest ratings of each Rating Agency
(except if the Rating Agency is Moody's the rating shall be the highest
commercial paper rating of Moody's for the securities), or any lower rating
that will not result in the downgrading or withdrawal of the ratings then
assigned to the Certificates by the Rating Agencies, as evidenced by a signed
writing delivered by each Rating Agency;
(ix) units of a taxable money-market portfolio having the highest
rating assigned by each Rating Agency (except (i) if Fitch is a Rating Agency
and has not rated the portfolio, the highest rating assigned by Moody's and
(ii) if S&P is a Rating Agency, "AAAm" or "AAAM-G" by S&P) and restricted to
obligations issued or guaranteed by the United States of America or entities
whose obligations are backed by the full faith and credit of the United States
of America and repurchase agreements collateralized by such obligations; and
(x) any other investments bearing interest or sold at a discount
acceptable to each Rating Agency that will not result in the downgrading or
withdrawal of the ratings then assigned to the Certificates by the Rating
Agencies, as evidenced by a signed writing delivered by each Rating Agency.
No Permitted Investment may evidence the right to receive interest
only payments with respect to the obligations underlying the instrument. Any
Permitted Investment shall be relatively risk free and no options or voting
rights shall be exercised with respect to any Permitted Investment. No
Permitted Investment may be sold or disposed of before its maturity.
Permitted Transferee: Any person other than
22
(i) the United States, any State or political subdivision thereof, or
any agency or instrumentality of any of the foregoing,
(ii) a foreign government, International Organization, or any agency
or instrumentality of either of the foregoing,
(iii) an organization (except certain farmers' cooperatives described
in section 521 of the Code) that is exempt from tax imposed by Chapter 1 of
the Code (including the tax imposed by section 511 of the Code on unrelated
business taxable income) on any excess inclusions (as defined in section
860E(c)(1) of the Code) with respect to any Residual Certificate,
(iv) rural electric and telephone cooperatives described in section
1381(a)(2)(C) of the Code,
(v) a Person that is not a U.S. Person, and
(vi) any other Person so designated by the Depositor based on an
Opinion of Counsel that the Transfer of an Ownership Interest in a Residual
Certificate to the Person may cause either REMIC to fail to qualify as a REMIC
at any time that the Certificates are outstanding.
Person: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization, or government, or any agency or political
subdivision thereof.
Physical Certificates: As specified in the Preliminary Statement.
Pool Stated Principal Balance: As to any Distribution Date, the
aggregate of the Stated Principal Balances of the Mortgage Loans on the last
day of the related Due Period that were Outstanding Mortgage Loans on that
day.
Pre-Funding Amount: For any date, the amount on deposit in the
respective Pre-Funding Accounts as of that date (net of any reinvestment
earnings thereon). On the Closing Date, the Pre-Funding Amount shall be
$3,755,384 with respect to Loan Group 1 and $570,570 with respect to Loan
Group 2.
Pre-Funding Accounts: Either of the Group 1 Pre-Funding Account or the
Group 2 Pre-Funding Account. Any investment income earned from Permitted
Investments in the Pre-Funding Accounts will be for the account of the Seller,
except to the extent provided in Sections 3.06(g).
Pre-Funding Period: For each Loan Group, the period commencing on the
Closing Date and ending on the earliest to occur of (i) the date on which the
amount on deposit in the related Pre-Funding Account (exclusive of any
investment earnings) is less than $100,000, (ii) October 31, 2001 and (iii) an
Event of Default.
Prepayment Charge: As to a Mortgage Loan, any charge paid by a
Mortgagor in connection with certain partial prepayments and all prepayments
in full made within the related Prepayment Charge Period,
23
the Prepayment Charges with respect to each applicable Mortgage Loan so held
by the Trust being identified in the Prepayment Charge Schedule.
Prepayment Charge Period: As to any Mortgage Loan the period of time
during which a Prepayment Charge may be imposed.
Prepayment Charge Schedule: As of any date, the list of Prepayment
Charges included in the Trust Fund on that date, (including the prepayment
charge summary attached thereto). The Prepayment Charge Schedule shall set
forth the following information with respect to each Prepayment Charge:
(i) the Mortgage Loan account number;
(ii) a code indicating the type of Prepayment
Charge;
(iii) the state of origination in which the related
Mortgage Property is located;
(iv) the first date on which a Monthly Payment is
or was due under the related Mortgage Note;
(v) the term of the Prepayment Charge;
(vi) the original principal amount of the related
Mortgage Loan; and
(vii) the Cut-off Date Principal Balance of the
related Mortgage Loan.
The Prepayment Charge Schedule shall be amended from time to time by
the Master Servicer in accordance with this Agreement.
Prepayment Interest Shortfall: As to any Distribution Date, Mortgage
Loan, and Principal Prepayment, the excess of one month's interest at the
related Mortgage Rate (net of the related Master Servicing Fee Rate) on the
Principal Prepayment over the amount of interest paid in connection with the
Principal Prepayment.
Prepayment Period: As to any Distribution Date, the prior calendar
month.
Primary Insurance Policy: Each policy of primary mortgage guaranty
insurance or any replacement policy therefor with respect to any Mortgage
Loan.
Principal Distribution Amount: For each Certificate Group and any
Distribution Date, the sum of (i) the Basic Principal Distribution Amount for
the Distribution Date for the Certificate Group and (ii) the Extra Principal
Distribution Amount for the Distribution Date for the Certificate Group. In no
event will the Principal Distribution Amount for a Certificate Group with
respect to any Distribution Date be less than zero or, for so long as the
Offered Certificates are still outstanding, greater than the aggregate
outstanding Class Certificate Balance of the Offered Certificates in that
Certificate Group.
24
Principal Prepayment: Any payment of principal by a Mortgagor on a
Mortgage Loan (including the Purchase Price of any Modified Mortgage Loan
purchased pursuant to Section 3.12) that is received in advance of its
scheduled Due Date and is not accompanied by an amount representing scheduled
interest due on any date in any month after the month of prepayment. The
Master Servicer shall apply partial Principal Prepayments in accordance with
the related Mortgage Note.
Principal Prepayment in Full: Any Principal Prepayment made by a
Mortgagor of the entire principal balance of a Mortgage Loan.
Principal Remittance Amount: For any Distribution Date and each Loan
Group, the sum of the following amounts (without duplication) with respect to
the preceding Due Period and Prepayment Period:
(i) the principal portion of all scheduled monthly payments on the
Mortgage Loans in the related Loan Group due during the related Due Period, to
the extent received or advanced on or prior to the related Determination Date;
(ii) the principal portion of all proceeds received in respect of the
repurchase of a Mortgage Loan in the related Loan Group (or, in the case of a
substitution, the Substitution Adjustment Amount representing a principal
adjustment) as required by this Agreement during the related Prepayment
Period;
(iii) the principal portion of all unscheduled collections, including
Insurance Proceeds, Liquidation Proceeds and all full and partial Principal
Prepayments, received during the related Prepayment Period, to the extent
applied as recoveries of principal on the Mortgage Loans in the related Loan
Group;
(iv) with respect to the Distribution Date occurring in the month
following the end of the Pre-Funding Period, the related Unused Pre-Funding
Amount; and
(v) the proceeds received with respect to the termination of the Loan
Group (to the extent such proceeds relate to principal).
Private Certificates: As specified in the Preliminary Statement.
Proprietary Lease: For any Cooperative Unit, a lease or occupancy
agreement between a Cooperative Corporation and a holder of related Coop
Shares.
Prospectus Supplement: The Prospectus Supplement dated August 29, 2001
relating to the Offered Certificates.
Protected Purchaser: As defined in the UCC.
PUD: Planned Unit Development.
25
Purchase Price: For any Modified Mortgage Loan or any Mortgage Loan
required to be purchased by the Seller pursuant to Section 2.02 or 2.03 or
purchased by the Master Servicer pursuant to Section 3.12, the sum of
(i) 100% of the unpaid principal balance of the Mortgage Loan on the
date of the purchase, and
(ii) accrued interest on the Mortgage Loan at the applicable Mortgage
Rate (or at the applicable Adjusted Net Mortgage Rate if (x) the purchaser is
the Master Servicer or (y) if the purchaser is the Seller and the Seller is
the Master Servicer) from the date through which interest was last paid by the
Mortgagor to the Due Date in the month in which the Purchase Price is to be
distributed to Certificateholders.
If the Mortgage Loan is a Modified Mortgage Loan, the interest component of
the Purchase Price shall be computed (i) on the basis of the applicable
Adjusted Net Mortgage Rate before giving effect to the related modification
and (ii) from the date to which interest was last paid to the date on which
the Modified Mortgage Loan is assigned to the Master Servicer pursuant to
Section 3.12.
Qualified Insurer: A mortgage guaranty insurance company duly
qualified as such under the laws of the state of its principal place of
business and each state having jurisdiction over the insurer in connection
with the insurance policy issued by the insurer, duly authorized and licensed
in such states to transact a mortgage guaranty insurance business in such
states and to write the insurance provided by the insurance policy issued by
it, approved as a FNMA- or FHLMC-approved mortgage insurer or having a claims
paying ability rating of at least "AA" or equivalent rating by a nationally
recognized statistical rating organization. Any replacement insurer with
respect to a Mortgage Loan must have at least as high a claims paying ability
rating as the insurer it replaces had on the Closing Date.
Rating Agency: Each of the Rating Agencies specified in the
Preliminary Statement. If any of them or a successor is no longer in
existence, "Rating Agency" shall be the nationally recognized statistical
rating organization, or other comparable Person, designated by the Depositor,
notice of which designation shall be given to the Trustee. References to a
given rating or rating category of a Rating Agency means the rating category
without giving effect to any modifiers.
Realized Loss: With respect to any Liquidated Mortgage Loan, the
amount of loss realized equal to the portion of the principal balance
remaining unpaid after application of all Net Liquidation Proceeds.
Recognition Agreement: For any Cooperative Loan, an agreement between
the Cooperative Corporation and the originator of the Mortgage Loan which
establishes the rights of the originator in the Cooperative Property.
Record Date: With respect to any Distribution Date and (i) any
Certificate other than a LIBOR Certificate that is a Book-Entry Certificate,
the close of business on the last Business Day of the month preceding the
month of that Distribution Date and (ii) for any LIBOR Certificate that is a
Book-Entry Certificate, the close of business on the Business Day before the
related Distribution Date.
26
Reference Bank: As defined in Section 4.07.
Refinance Loan: Any Mortgage Loan the proceeds of which are used to
refinance an existing Mortgage Loan.
Regular Certificates: As specified in the Preliminary Statement.
Relief Act: The Soldiers' and Sailors' Civil Relief Act of 1940.
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 calendar month as a result of
the application of the Relief Act.
REMIC: A "real estate mortgage investment conduit" within the meaning
of section 860D of the Code.
REMIC Change of Law: Any proposed, temporary, or final regulation,
revenue ruling, revenue procedure, or other official announcement or
interpretation relating to REMICs and the REMIC Provisions issued after the
Closing Date.
REMIC Provisions: Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations promulgated thereunder, as the foregoing may be in effect from
time to time as well as provisions of applicable state laws.
REO Property: A Mortgaged Property acquired by the Trust Fund through
foreclosure or deed-in-lieu of foreclosure in connection with a defaulted
Mortgage Loan.
Request for Release: The Request for Release submitted by the Master
Servicer to the Trustee, substantially in the form of Exhibits M and N, as
appropriate.
Required Carryover Reserve Fund Account Amount: With respect to any
Distribution Date on which the Net Excess Spread for a Loan Group is less than
0.25%, the greater of (a) $15,000 and (b) the product of 0.50% and the
aggregate Stated Principal Balance of the Mortgage Loans in that Loan Group.
With respect to any Distribution Date on which the Net Excess Spread for a
Loan Group is equal to or greater than 0.25%, $5,000.
Required Carryover Reserve Fund Account Deposit: With respect to any
Distribution Date on which the Net Excess Spread for a Loan Group is less than
0.25%, the excess of (i) the greater of (a) $15,000 and (b) product of 0.50%
and the aggregate Stated Principal Balance of the Mortgage Loans in that Loan
Group over (ii) the amount of funds on deposit in the related Carryover
Reserve Fund Account prior to deposits thereto on such Distribution Date. With
respect to any Distribution Date on which the Net Excess Spread for a Loan
Group is equal to or greater than 0.25%, the excess of (i) $5,000 over (ii)
the amount of
27
funds on deposit in the related Carryover Reserve Fund Account prior to
deposits thereto on such Distribution Date.
Required Insurance Policy: For any Mortgage Loan, any insurance policy
that is required to be maintained from time to time under this Agreement.
Reserve Interest Rate: As defined in Section 4.08(b).
Residual Certificates: As specified in the Preliminary Statement.
Responsible Officer: When used with respect to the Trustee, any Vice
President, any Assistant Vice President, any Assistant Secretary, any
Assistant Treasurer, or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers who at such time shall be officers to whom, with respect to a
particular matter, the matter is referred because of the officer's knowledge
of and familiarity with the particular subject and who has direct
responsibility for the administration of this Agreement.
SAIF: The Savings Association Insurance Fund, or any successor thereto.
S&P: Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies. If
S&P is designated as a Rating Agency in the Preliminary Statement, for
purposes of Section 10.05(b) the address for notices to S&P shall be Standard
& Poor's Ratings Group, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Mortgage Surveillance
Monitoring, or any other address that S&P furnishes to the Depositor and the
Master Servicer.
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan
due on any Due Date allocable to principal or interest on the Mortgage Loan
that, unless otherwise specified herein, shall give effect to any related Debt
Service Reduction and any Deficient Valuation that affects the amount of the
monthly payment due on the Mortgage Loan.
Securities Act: The Securities Act of 1933.
Security Agreement: For any Cooperative Loan, the agreement between
the owner of the related Coop Shares and the originator of the related
Mortgage Note that defines the security interest in the Coop Shares and the
related Proprietary Lease.
Seller: IndyMac Bank, F.S.B., a federal savings bank, and its
successors and assigns, in its capacity as seller of the Mortgage Loans to the
Depositor.
Servicing Account: The separate Eligible Account or Accounts created
and maintained pursuant to Section 3.06(b).
Servicing Advances: All customary, reasonable, and necessary "out of
pocket" costs and expenses incurred in the performance by the Master Servicer
of its servicing obligations, including the cost of
28
(i)
(a) the preservation, restoration, and protection of a
Mortgaged Property,
(b) expenses reimbursable to the Master Servicer pursuant to
Section 3.12 and any enforcement or judicial proceedings, including
foreclosures,
(c) the maintenance and liquidation of any REO Property, and
(d) compliance with the obligations under Section 3.10; and
(ii) reasonable compensation to the Master Servicer or its affiliates
for acting as broker in connection with the sale of foreclosed Mortgaged
Properties and for performing certain default management and other similar
services (including appraisal services) in connection with the servicing of
defaulted Mortgage Loans. For purposes of clause (ii), only costs and expenses
incurred in connection with the performance of activities generally considered
to be outside the scope of customary servicing or master servicing duties
shall be treated as Servicing Advances.
Servicing Fee: As to each Mortgage Loan and any Distribution Date, one
month's interest at the applicable Servicing Fee Rate on the Stated Principal
Balance of the Mortgage Loan, or, whenever a payment of interest accompanies a
Principal Prepayment in Full made by the Mortgagor, interest at the Servicing
Fee Rate on the Stated Principal Balance of the Mortgage Loan for the period
covered by the payment of interest, subject to reduction as provided in
Section 3.15.
Servicing Fee Rate: For any Mortgage Loan, 0.25% per annum.
Servicing Officer: Any officer of the Master Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and facsimile signature appear on a list of servicing officers furnished
to the Trustee by the Master Servicer on the Closing Date pursuant to this
Agreement, as the list may from time to time be amended.
Servicing Standard: That degree of skill and care exercised by the
Master Servicer with respect to Mortgage Loans comparable to the mortgage
loans serviced by the Master Servicer for itself or others.
60+ Day Delinquent Loan: As to any Distribution Date, each Mortgage
Loan in foreclosure, all REO Property, each Mortgage Loan for which the
Mortgagor has filed for bankruptcy, and each Mortgage Loan with respect to
which any portion of a Scheduled Payment is, as of the last day of the prior
Due Period, two months or more past due (without giving effect to any grace
period).
Startup Day: The Closing Date.
Stated Principal Balance: As to any Mortgage Loan and any date of
determination, the unpaid principal balance of the Mortgage Loan as of the
Cut-off Date after application of all Scheduled Payments allocable to
principal due on or before the Cut-off Date, whether or not received, reduced
by all amounts
29
allocable to principal that have been distributed to Certificateholders with
respect to such Mortgage Loan on or before such date, and as further reduced
to the extent that any Realized Loss thereon has been allocated to one or more
Classes of Certificates on or before such date.
Stepdown Date: For each Certificate Group, the earlier to occur of (i)
the Distribution Date on which the aggregate Class Certificate Balance of the
Class A Certificates in that Certificate Group has been reduced to zero and
(ii) the later to occur of (x) the Distribution Date occurring in September
2004 and (y) the first Distribution Date on which the aggregate Class
Certificate Balance of the Class M and Class B Certificates in that
Certificate Group divided by the aggregate Stated Principal Balance of the
Mortgage Loans in the related Loan Group as of the last day of the related Due
Period (after reduction for Realized Losses incurred during the related
Prepayment Period) is greater than or equal to 12.00%.
Subordinated Certificates: As specified in the Preliminary Statement.
Subsequent Mortgage Loan: Such of the Mortgage Loans transferred and
assigned to the Trustee pursuant to (i) a Subsequent Transfer Agreement and
(ii) the provisions hereof, as from time to time are held as a part of the
Trust Fund (including any REO Property), the Mortgage Loans so held being
identified on the Mortgage Loan Schedule for the related Subsequent Transfer
Date, notwithstanding foreclosure or other acquisition of title of the related
Mortgaged Property. When used with respect to a single Subsequent Transfer
Date, "Subsequent Mortgage Loan" means a Subsequent Mortgage Loan conveyed to
the Trust Fund on the Subsequent Transfer Date.
Subsequent Transfer Agreement: A Subsequent Transfer Agreement
substantially in the form of Exhibit Q, executed and delivered by the Seller,
the Depositor, and the Trustee as provided in Section 2.09(a).
Subsequent Transfer Date: For any Subsequent Transfer Agreement, the
"Subsequent Transfer Date" identified in the Subsequent Transfer Agreement.
The Subsequent Transfer Date for any Subsequent Transfer Agreement may not be
a date earlier than the date on which the Subsequent Transfer Agreement is
executed and delivered by the parties thereto pursuant to Section 2.09(a).
Subservicer: As defined in Section 3.02(a).
Subsidiary Interests: As described in the Preliminary Statement.
Subsidiary REMIC: As described in the Preliminary Statement.
Subsidiary REMIC Interest: Any one of the Subsidiary REMIC Regular
Interests or the SR Interest.
Substitute Mortgage Loan: A Mortgage Loan substituted by the Seller
for a Deleted Mortgage Loan that must, on the date of substitution, as
confirmed in a Request for Release, substantially in the form of Exhibit M,
30
(i) have a Stated Principal Balance, after deduction of the principal
portion of the Scheduled Payment due in the month of substitution, not in
excess of, and not more than 10% less than, the Stated Principal Balance of
the Deleted Mortgage Loan (unless the amount of any shortfall is deposited by
the Seller in the Certificate Account and held for distribution to the
Certificateholders on the related Distribution Date);
(ii) have a Mortgage Rate no lower than and not more than 1% per annum
higher than, that of the Deleted Mortgage Loan;
(iii) have a Loan-to-Value Ratio no higher than that of the Deleted
Mortgage Loan;
(iv) have a remaining term to maturity no greater than (and not more
than one year less than that of) the Deleted Mortgage Loan;
(v) not be a Cooperative Loan unless the Deleted Mortgage Loan was a
Cooperative Loan; and
(vi) comply with each representation and warranty in Section 2.03.
Substitution Adjustment Amount: As defined in Section 2.03.
Tax Matters Person Certificate: The Class A-R Certificate with a
denomination of $0.05.
Telerate Page 3750: The display page currently so designated on the
Bridge Telerate Information Services, Inc. (or any page replacing that page on
that service for the purpose of displaying London inter-bank offered rates of
major banks).
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
Trigger Event: With respect to the Certificates of a Certificate Group
and any Distribution Date after the Stepdown Date, a Trigger Event will have
occurred if (A) the percentage obtained by dividing (x) the principal amount
of 60+ Day Delinquent Loans in the related Loan Group by (y) the aggregate
Stated Principal Balance of the Mortgage Loans in that Loan Group, in each
case, as of the last day of the previous calendar month, exceeds:
Distribution Date Percentage
----------------- ----------
August 2004 - July 2006............. 2.25%
August 2006 and thereafter.......... 3.25%
or (B) commencing with the August 2004 Distribution Date, cumulative Realized
Losses exceed 10.00% of the sum of (a)(1) the aggregate Class Certificate
Balance of the Offered Certificates in the related Certificate Group then
outstanding minus (2) the aggregate Class Certificate Balance of the class of
Offered Certificates in the related Certificate Group then outstanding with
the highest priority of payment and (b) the related Overcollateralized Amount.
31
Trust Fund: The corpus of the trust created under this Agreement
consisting of
(i) the Mortgage Loans and all interest and principal received on them
after the related Cut-off Date, other than amounts due on the Mortgage Loans
by the related Cut-off Date;
(ii) the Certificate Account, Carryover Reserve Fund Accounts, the
Distribution Account, the Pre-Funding Accounts, and the Capitalized Interest
Accounts and all amounts deposited therein pursuant to this Agreement
(including amounts received from the Seller on the Closing Date that will be
deposited by the Trustee in the Certificate Account pursuant to Section 2.01);
(iii) property that secured a Mortgage Loan and has been acquired by
foreclosure, deed-in-lieu of foreclosure, or otherwise;
(iv) the right to collect any amounts under any mortgage insurance
policies covering any Mortgage Loan and any collections received under any
mortgage insurance policies covering any Mortgage Loan;
(v) all of the Trust's right, title and interest in and to the Yield
Maintenance Agreements; and
(vi) all proceeds of the conversion, voluntary or involuntary, of any
of the foregoing.
Trustee: Bankers Trust Company of California, N.A. and its successors
and, if a successor trustee is appointed under this Agreement, the successor.
Trustee Fee: The fee payable to the Trustee on each Distribution Date
for its services as Trustee hereunder, in an amount equal to one-twelfth of
the Trustee Fee Rate multiplied by the aggregate Stated Principal Balance of
the Mortgage Loans immediately prior to such Distribution Date.
Trustee Fee Rate: 0.06% per annum.
The terms "United States," "State," and "International Organization"
have the meanings in section 7701 of the Code or successor provisions. A
corporation will not be treated as an instrumentality of the United States or
of any State or political subdivision thereof for these purposes if all of its
activities are subject to tax and, with the exception of the Federal Home Loan
Mortgage Corporation, a majority of its board of directors is not selected by
such government unit.
UCC: The Uniform Commercial Code of the State of New York.
United States Person or U.S. Person:
(i) A citizen or resident of the United States;
(ii) a corporation (or entity treated as a corporation for tax
purposes) created or organized in the United States or under the laws of the
United States or of any state thereof, including, for this purpose, the
District of Columbia;
32
(iii) a partnership (or entity treated as a partnership for tax
purposes) organized in the United States or under the laws of the United
States or of any state thereof, including, for this purpose, the District of
Columbia (unless provided otherwise by future Treasury regulations);
(iv) an estate whose income is includible in gross income for United
States income tax purposes regardless of its source; or
(v) a trust, if a court within the United States is able to exercise
primary supervision over the administration of the trust and one or more U.S.
Persons have authority to control all substantial decisions of the trust.
Notwithstanding the last clause of the preceding sentence, to the extent
provided in Treasury regulations, certain trusts in existence on August 20,
1996, and treated as U.S. Persons before that date, may elect to continue to
be U.S. Persons.
Unpaid Interest Shortfall Amount: As of any Distribution Date and any
Class of Certificates, the amount, if any, by which (a) the sum of (1) the
Monthly Interest Distributable Amount for such Class for the immediately
preceding Distribution Date and (2) the outstanding Unpaid Interest Shortfall
Amount, if any, for such Class for such preceding Distribution Date exceeds
(b) the aggregate amount distributed on such Class in respect of interest
pursuant to clause (a) of this definition on such preceding Distribution Date
and all preceding Distribution Dates, plus interest on the amount of interest
due but not paid on the Certificates of such Class on such preceding
Distribution Date, to the extent permitted by law, at the Pass-Through Rate
for such Class for the related Accrual Period.
Unpaid Realized Loss Amount: For any Class of Subordinated
Certificates and any Distribution Date, is the excess of (i) Allocated
Realized Loss Amounts for the Class over (ii) the sum of all distributions in
reduction of Allocated Realized Loss Amounts for the Class on all previous
Distribution Dates. Any amounts distributed to a Class of Subordinated
Certificates with respect to any Unpaid Realized Loss Amount will not be
applied to reduce the Class Certificate Balance of the Class.
Unused Pre-Funding Amount: The Pre-Funding Amount immediately after
the end of the Pre-Funding Period.
Voting Rights: The portion of the voting rights of all of the
Certificates that is allocated to any Certificate. As of any date of
determination, (a) 98% of all Voting Rights shall be allocated to the Offered
Certificates other than the Class A-IO and Class A-R Certificates and (b) 1%
of all Voting Rights shall be allocated to each Class of Class A-IO
Certificates. Voting Rights shall be allocated among the Certificates within
each such Class in accordance with their respective Percentage Interests. The
Class A-R Certificates shall have no voting rights.
Withdrawal Date: The 18th day of each month or, if such day is not a
Business Day, the next preceding Business Day.
Yield Maintenance Agreement: Either of two interest rate cap
agreements between the Trustee and Bear ▇▇▇▇▇▇▇ Financial Products, Inc.
33
Section 1.02. Rules of Construction.
Except as otherwise expressly provided in this Agreement or unless the
context clearly requires otherwise
(a) References to designated articles, sections, subsections, exhibits,
and other subdivisions of this Agreement, such as "Section 6.12 (a)," refer to
the designated article, section, subsection, exhibit, or other subdivision of
this Agreement as a whole and to all subdivisions of the designated article,
section, subsection, exhibit, or other subdivision. The words "herein,"
"hereof," "hereto," "hereunder," and other words of similar import refer to
this Agreement as a whole and not to any particular article, section, exhibit,
or other subdivision of this Agreement.
(b) Any term that relates to a document or a statute, rule, or
regulation includes any amendments, modifications, supplements, or any other
changes that may have occurred since the document, statute, rule, or
regulation came into being, including changes that occur after the date of
this Agreement.
(c) Any party may execute any of the requirements under this Agreement
either directly or through others, and the right to cause something to be done
rather than doing it directly shall be implicit in every requirement under
this Agreement. Unless a provision is restricted as to time or limited as to
frequency, all provisions under this Agreement are implicitly available and
things may happen from time to time.
(d) The term "including" and all its variations mean "including but not
limited to." Except when used in conjunction with the word "either," the word
"or" is always used inclusively (for example, the phrase "A or B" means "A or
B or both," not "either A or B but not both").
(e) A reference to "a [thing]" or "any [of a thing]" does not imply the
existence or occurrence of the thing referred to even though not followed by
"if any," and "any [of a thing]" is any of it. A reference to the plural of
anything as to which there could be either one or more than one does not imply
the existence of more than one (for instance, the phrase "the obligors on a
note" means "the obligor or obligors on a note"). "Until [something occurs]"
does not imply that it must occur, and will not be modified by the word
"unless." The word "due" and the word "payable" are each used in the sense
that the stated time for payment has passed. The word "accrued" is used in its
accounting sense, i.e., an amount paid is no longer accrued. In the
calculation of amounts of things, differences and sums may generally result in
negative numbers, but when the calculation of the excess of one thing over
another results in zero or a negative number, the calculation is disregarded
and an "excess" does not exist. Portions of things may be expressed as
fractions or percentages interchangeably.
(f) All accounting terms used in an accounting context and not
otherwise defined, and accounting terms partly defined in this Agreement, to
the extent not completely defined, shall be construed in accordance with
generally accepted accounting principles. To the extent that the definitions
of accounting terms in this Agreement are inconsistent with their meanings
under generally accepted accounting principles, the definitions contained in
this Agreement shall control. Capitalized terms used in this
34
Agreement without definition that are defined in the Uniform Commercial Code
are used in this Agreement as defined in the Uniform Commercial Code.
(g) In the computation of a period of time from a specified date to a
later specified date or an open-ended period, the words "from" and "beginning"
mean "from and including," the word "after" means "from but excluding," the
words "to" and "until" mean "to but excluding," and the word "through" means
"to and including." Likewise, in setting deadlines or other periods, "by"
means "by." The words "preceding," "following," and words of similar import,
mean immediately preceding or following. References to a month or a year refer
to calendar months and calendar years.
(h) Any reference to the enforceability of any agreement against a
party means that it is enforceable, subject as to enforcement against the
party, to applicable bankruptcy, insolvency, reorganization, and other similar
laws of general applicability relating to or affecting creditors' rights and
to general equity principles.
35
ARTICLE TWO
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
Section 2.01. Conveyance of Mortgage Loans.
(a) The Seller, concurrently with the execution and delivery of this
Agreement, hereby transfers to the Depositor, without recourse, all the
interest of the Seller in (i) each Initial Mortgage Loan, including all
interest and principal due to the Seller on each Initial Mortgage Loan after
the related Cut-off Date and all interest and principal payments on each
Initial Mortgage Loan received before the related Cut-off Date for
installments of interest and principal due after the related Cut-Off Date but
not including payments of principal and interest due by the related Cut-off
Date and (ii) all proceeds thereof. By the Closing Date, the Seller shall
deliver to the Depositor or, at the Depositor's direction, to the Trustee or
other designee of the Depositor, the Mortgage File for each Initial Mortgage
Loan listed in the Mortgage Loan Schedule (except that, in the case of Initial
Mortgage Loans that are Delay Delivery Mortgage Loans, such delivery may take
place within five Business Days of the Closing Date) as of the Closing Date.
The delivery of the Mortgage Files shall be made against payment by the
Depositor of the purchase price, previously agreed to by the Seller and
Depositor, for the Initial Mortgage Loans. With respect to any Initial
Mortgage Loan that does not have a first payment date on or before the Due
Date in the month of the first Distribution Date, the Seller shall deposit
into the Distribution Account on the first Distribution Account Deposit Date
an amount equal to one month's interest at the related Adjusted Net Mortgage
Rate on the Cut-off Date Principal Balance of such Mortgage Loan. If the
Seller shall fail to deposit such amount by the first Distribution Account
Deposit Date, the Trustee shall deposit such amount. Also on the Closing Date,
the Depositor shall deposit $200 into the Certificate Account.
(b) The Depositor, concurrently with the execution and delivery of this
Agreement, hereby transfers to the Trustee (or in the case of the Initial
Mortgage Loans that are Delay Delivery Mortgage Loans will deliver or cause to
be delivered within 5 Business Days of the Closing Date) for the benefit of
the Certificateholders, without recourse, all the interest of the Depositor in
the Trust Fund, together with the Depositor's right to require the Seller to
cure any breach of a representation or warranty made in this Agreement by the
Seller or to repurchase or substitute for any affected Initial Mortgage Loan
in accordance with this Agreement.
(c) In connection with the transfer and assignment of each Initial
Mortgage Loan, the Depositor has delivered (or, in the case of the Delay
Delivery Mortgage Loans, will deliver to the Trustee within the time periods
specified in the definition of Delay Delivery Mortgage Loans), and, in
connection with the transfer and assignment of each Subsequent Mortgage Loan,
will deliver to the Trustee for the benefit of the Certificateholders the
following documents or instruments with respect to each Mortgage Loan so
assigned.
(i) The original Mortgage Note, endorsed by manual or facsimile
signature in blank in the following form: "Pay to the order of
_______________ ______________without recourse," with all intervening
endorsements showing a complete chain of endorsement from the
originator to the
II-1
Person endorsing the Mortgage Note (each endorsement being sufficient
to transfer all interest of the party so endorsing, as noteholder or
assignee thereof, in that Mortgage Note) or a lost note affidavit for
any Lost Mortgage Note from the Seller stating that the original
Mortgage Note was lost or destroyed, together with a copy of the
Mortgage Note.
(ii) Except as provided below, the original recorded Mortgage
or a copy of the Mortgage certified by the Seller (or, in the case of
a Mortgage for which the related Mortgaged Property is located in the
Commonwealth of Puerto Rico, a true copy of the Mortgage certified as
such by the applicable notary) as being a true and complete copy of
the Mortgage.
(iii) A duly executed assignment of the Mortgage (which may be
included in a blanket assignment or assignments), together with,
except as provided below, all interim recorded assignments of the
mortgage (each assignment, when duly and validly completed, to be in
recordable form and sufficient to effect the assignment of and
transfer to its assignee of the Mortgage to which the assignment
relates). If the related Mortgage has not been returned from the
applicable public recording office, the assignment of the Mortgage may
exclude the information to be provided by the recording office. The
assignment of Mortgage need not be delivered in the case of a Mortgage
for which the related Mortgage Property is located in the Commonwealth
of Puerto Rico.
(iv) The original or copies of each assumption, modification,
written assurance, or substitution agreement.
(v) Except as provided below, the original or duplicate original
lender's title policy and all its riders.
(vi) The originals of the following documents for each
Cooperative Loan:
(A) the Coop Shares, together with a stock power in
blank;
(B) the executed Security Agreement;
(C) the executed Proprietary Lease;
(D) the executed Recognition Agreement;
(E) the executed UCC-1 financing statement that has
been filed in all places required to perfect the Seller's
interest in the Coop Shares and the Proprietary Lease with
evidence of recording on it; and
(F) executed UCC-3 financing statements or other
appropriate UCC financing statements required by state law,
evidencing a complete and unbroken line from the mortgagee to
the Trustee with evidence of recording thereon (or in a form
suitable for recordation). If in connection with any Mortgage
Loan the Depositor cannot deliver
II-2
(a) the original recorded Mortgage,
(b) all interim recorded assignments, or
(c) the lender's title policy (together with all its riders)
satisfying the requirements of clause (ii), (iii), or (v) above, respectively,
concurrently with the execution and delivery of this Agreement because any of
them have not been returned from the applicable public recording office in the
case of clause (ii) or (iii) above, or because the title policy has not been
delivered to either the Master Servicer or the Depositor by the applicable
title insurer in the case of clause (v) above, then the Depositor shall
promptly deliver to the Trustee, in the case of clause (ii) or (iii) above,
the original Mortgage or the interim assignment, as the case may be, with
evidence of recording indicated on it when it is received from the public
recording office, or a copy of it, certified, if appropriate, by the relevant
recording office.
The delivery of the original Mortgage Loan and each interim assignment
or a copy of them, certified, if appropriate, by the relevant recording
office, shall not be made later than one year following the Closing Date (or,
for a Subsequent Mortgage Loan, the Subsequent Transfer Date), or, in the case
of clause (v) above, later than 120 days following the Closing Date (or, for a
Subsequent Mortgage Loan, the Subsequent Transfer Date). If the Depositor is
unable to deliver each Mortgage by that date and each interim assignment
because any documents have not been returned by the appropriate recording
office, or, in the case of each interim assignment, because the related
Mortgage has not been returned by the appropriate recording office, the
Depositor shall deliver the documents to the Trustee as promptly as possible
upon their receipt and, in any event, within 720 days following the Closing
Date (or, for a Subsequent Mortgage Loan, the Subsequent Transfer Date).
The Depositor shall forward to the Trustee (a) from time to time
additional original documents evidencing an assumption or modification of a
Mortgage Loan and (b) any other documents required to be delivered by the
Depositor or the Master Servicer to the Trustee. If the original Mortgage is
not delivered and in connection with the payment in full of the related
Mortgage Loan the public recording office requires the presentation of a "lost
instruments affidavit and indemnity" or any equivalent document, because only
a copy of the Mortgage can be delivered with the instrument of satisfaction or
reconveyance, the Master Servicer shall execute and deliver the required
document to the public recording office. If a public recording office retains
the original recorded Mortgage or if a Mortgage is lost after recordation in a
public recording office, the Seller shall deliver to the Trustee a copy of the
Mortgage certified by the public recording office to be a true and complete
copy of the original recorded Mortgage.
As promptly as practicable after any transfer of a Mortgage Loan under
this Agreement, and in any event within thirty days after the transfer, the
Trustee shall (i) affix the Trustee's name to each assignment of Mortgage, as
its assignee, and (ii) cause to be delivered for recording in the appropriate
public office for real property records the assignments of the Mortgages to
the Trustee, except that, if the Trustee has not received the information
required to deliver any assignment of a Mortgage for recording, the Trustee
shall deliver it as soon as practicable after receipt of the needed
information and in any event within thirty days.
II-3
The Trustee need not record any assignment that relates to a Mortgage
Loan (a) the Mortgaged Property and Mortgage File relating to which are
located in California or (b) in any other jurisdiction (including Puerto Rico)
under the laws of which, as evidenced by an Opinion of Counsel delivered by
the Seller (at the Seller's expense) to the Trustee, recording the assignment
is not necessary to protect the Trustee's and the Certificateholders' interest
in the related Mortgage Loan.
If any Mortgage Loans have been prepaid in full as of the Closing
Date, the Depositor, in lieu of delivering the above documents to the Trustee,
will deposit in the Certificate Account the portion of the prepayment that is
required to be deposited in the Certificate Account pursuant to Section 3.06.
Notwithstanding anything to the contrary in this Agreement, within
five Business Days after the Closing Date (in the case of Initial Mortgage
Loans), the Seller shall either
(x) deliver to the Trustee the Mortgage File as required pursuant to
this Section 2.01 for each Delay Delivery Mortgage Loan or
(y) (A) repurchase the Delay Delivery Mortgage Loan or (B) substitute
a Substitute Mortgage Loan for the Delay Delivery Mortgage Loan, which
repurchase or substitution shall be accomplished in the manner and subject to
the conditions in Section 2.03 (treating each such Delay Delivery Mortgage
Loan as a Deleted Mortgage Loan for purposes of such Section 2.03), provided,
however, that if the Seller fails to deliver a Mortgage File for any Delay
Delivery Mortgage Loan within the period specified herein, the Seller shall
use its best reasonable efforts to effect a substitution, rather than a
repurchase of, such Deleted Mortgage Loan and provided further that the cure
period provided for in Section 2.02 or in Section 2.03 shall not apply to the
initial delivery of the Mortgage File for such Delay Delivery Mortgage Loan,
but rather the Seller shall have five (5) Business Days to cure such failure
to deliver. At the end of such period, the Trustee shall send a Delay Delivery
Certification for the Delay Delivery Mortgage Loans delivered during such
period in accordance with the provisions of Section 2.02.
(d) The Seller agrees to treat the transfer of the Mortgage Loans to
the Depositor as a sale for all tax, accounting and regulatory purposes.
Section 2.02. Acceptance by the Trustee of the Mortgage Loans.
(a) The Trustee acknowledges receipt of the documents identified in the
Initial Certification in the form of Exhibit G, and receipt of the Group 1
Pre-Funding Amount and the Group 2 Pre-Funding Amount and declares that it
holds and will hold such documents and the other documents delivered to it
constituting the Mortgage Files for the Initial Mortgage Loans, that it holds
and will hold all amounts in the Pre-Funding Accounts and the Capitalized
Interest Accounts, and that it holds or will hold such other assets as are
included in the Trust Fund, in trust for the exclusive use and benefit of all
present and future Certificateholders.
The Trustee acknowledges that it will maintain possession of the
related Mortgage Notes in the State of California, unless otherwise permitted
by the Rating Agencies. The Trustee agrees to execute and
II-4
deliver on the Closing Date to the Depositor, the Master Servicer and the
Seller an Initial Certification in the form of Exhibit G. Based on its review
and examination, and only as to the documents identified in such Initial
Certification, the Trustee acknowledges that such documents appear regular on
their face and relate to such Initial Mortgage Loans. The Trustee shall be
under no duty or obligation to inspect, review or examine said documents,
instruments, certificates or other papers to determine that the same are
genuine, enforceable or appropriate for the represented purpose or that they
have actually been recorded in the real estate records or that they are other
than what they purport to be on their face.
By the thirtieth day after the Closing Date (or if that day is not a
Business Day, the succeeding Business Day), the Trustee shall deliver to the
Depositor, the Master Servicer, and the Seller a Delay Delivery Certification
with respect to the Initial Mortgage Loans substantially in the form of
Exhibit G-1, with any applicable exceptions noted thereon.
Not later than 90 days after the Closing Date, the Trustee shall
deliver to the Depositor, the Master Servicer and the Seller a Final
Certification in the form of Exhibit H, with any applicable exceptions noted
thereon.
If, in the course of its review, the Trustee finds any document
constituting a part of a Mortgage File that does not meet the requirements of
Section 2.01, the Trustee shall list such as an exception in the Final
Certification. The Trustee shall not make any determination as to whether (i)
any endorsement is sufficient to transfer all interest of the party so
endorsing, as noteholder or assignee thereof, in that Mortgage Note or (ii)
any assignment is in recordable form or is sufficient to effect the assignment
of and transfer to the assignee thereof under the mortgage to which the
assignment relates. The Seller shall promptly correct any defect within 90
days from the date it was so notified of the defect and, if the Seller does
not correct the defect within that period, the Seller shall either (a)
substitute for the related Initial Mortgage Loan a Substitute Mortgage Loan,
which substitution shall be accomplished in the pursuant Section 2.03, or (b)
purchase the Initial Mortgage Loan at its Purchase Price from the Trustee
within 90 days from the date the Seller was notified of the defect in writing.
If a substitution or purchase of an Initial Mortgage Loan pursuant to
this provision is required because of a delay in delivery of any documents by
the appropriate recording office, or there is a dispute between either the
Master Servicer or the Seller and the Trustee over the location or status of
the recorded document, then the substitution or purchase shall occur within
720 days from the Closing Date. In no other case may a substitution or
purchase occur more than 540 days from the Closing Date.
The Trustee shall deliver written notice to each Rating Agency within
270 days from the Closing Date indicating each Initial Mortgage Loan (a) that
has not been returned by the appropriate recording office or (b) as to which
there is a dispute as to location or status of the Initial Mortgage Loan. The
notice shall be delivered every 90 days thereafter until the related Initial
Mortgage Loan is returned to the Trustee. Any substitution pursuant to (a)
above or purchase pursuant to (b) above shall not be effected before the
delivery to the Trustee of the Opinion of Counsel required by Section 2.05,
and any substitution pursuant to (a) above shall not be effected before the
additional delivery to the Trustee of a Request for Release substantially in
II-5
the form of Exhibit N. No substitution is permitted to be made in any calendar
month after the Determination Date for the month.
The Purchase Price for any Initial Mortgage Loan shall be deposited by
the Seller in the Certificate Account by the Distribution Account Deposit Date
for the Distribution Date in the month following the month of repurchase and,
upon receipt of the deposit and certification with respect thereto in the form
of Exhibit N, the Trustee shall release the related Mortgage File to the
Seller and shall execute and deliver at the Seller's request any instruments
of transfer or assignment prepared by the Seller, in each case without
recourse, necessary to vest in the Seller, or a designee, the Trustee's
interest in any Initial Mortgage Loan released pursuant hereto.
The Trustee shall retain possession and custody of each Mortgage File
in accordance with and subject to the terms and conditions set forth herein.
The Master Servicer shall promptly deliver to the Trustee, upon the execution
or receipt thereof, the originals of such other documents or instruments
constituting the Mortgage File as come into the possession of the Master
Servicer from time to time.
The obligation of the Seller to substitute for or to purchase any
Initial Mortgage Loan that does not meet the requirements of Section 2.01
shall constitute the sole remedy respecting the defect available to the
Trustee, the Depositor, and any Certificateholder against the Seller.
(b) The Trustee agrees to execute and deliver to the Depositor, the
Master Servicer and the Seller on the Subsequent Transfer Date an Initial
Certification in the form of Exhibit G acknowledging receipt of the documents
identified in such Initial Certification and declaring that it holds and will
hold such documents and the other documents delivered to it constituting the
Mortgage Files for the related Subsequent Mortgage Loans, and that it holds or
will hold such other assets as are included in the Trust Fund, in trust for
the exclusive use and benefit of all present and future Certificateholders.
The Trustee acknowledges that it will maintain possession of the related
Mortgage Notes in the State of California, unless otherwise permitted by the
Rating Agencies.
Based on its review and examination, and only as to the documents
identified in such Initial Certification, the Trustee acknowledges that such
documents appear regular on their face and relate to such Subsequent Mortgage
Loan. The Trustee shall be under no duty or obligation to inspect, review or
examine said documents, instruments, certificates or other papers to determine
that the same are genuine, enforceable or appropriate for the represented
purpose or that they have actually been recorded in the real estate records or
that they are other than what they purport to be on their face.
Not later than 90 days after the Subsequent Transfer Date, the Trustee
shall deliver to the Depositor, the Master Servicer, and the Seller a Final
Certification in the form of Exhibit H, with any applicable exceptions noted
thereon.
If, in the course of its review, the Trustee finds any document
constituting a part of a Subsequent Mortgage File that does not meet the
requirements of Section 2.01, the Trustee shall list such as an exception in
the Final Certification. The Trustee shall not make any determination as to
whether (i) any
II-6
endorsement is sufficient to transfer all interest of the party so endorsing,
as Noteholder or assignee thereof, in that Mortgage Note or (ii) any
assignment is in recordable form or is sufficient to effect the assignment of
and transfer to the assignee thereof under the mortgage to which the
assignment relates. The Seller shall promptly correct the defect within 90
days from the date it was so notified of the defect and, if the Seller does
not correct the defect within that period, the Seller shall either (a)
substitute for the related Subsequent Mortgage Loan a Substitute Mortgage
Loan, which substitution shall be accomplished pursuant to Section 2.03, or
(b) purchase the Subsequent Mortgage Loan from the Trustee within 90 days from
the date the Seller was notified of the defect in writing at the Purchase
Price of the Subsequent Mortgage Loan.
If the substitution or purchase of a Subsequent Mortgage Loan pursuant
to this provision is required because of a delay in delivery of any documents
by the appropriate recording office, or there is a dispute between either the
Master Servicer or the Seller and the Trustee over the location or status of
the recorded document, then the substitution or purchase shall occur within
720 days from the Subsequent Transfer Date. In no other case shall the
substitution or purchase occur more than 540 days from the Subsequent Transfer
Date. The Trustee shall deliver written notice to each Rating Agency within
270 days from the Subsequent Transfer Date indicating each Subsequent Mortgage
Loan (a) that has not been returned by the appropriate recording office or (b)
as to which there is a dispute as to location or status of the Mortgage Loan.
The notice shall be delivered every 90 days thereafter until the
related Subsequent Mortgage Loan is returned to the Trustee. Any substitution
pursuant to (a) above or purchase pursuant to (b) above shall not be effected
before the delivery to the Trustee of the Opinion of Counsel required by
Section 2.05, and any substitution pursuant to (a) above shall not be effected
before the additional delivery to the Trustee of a Request for Release
substantially in the form of Exhibit N. No substitution is permitted to be
made in any calendar month after the Determination Date for the month. The
Purchase Price for any Subsequent Mortgage Loan shall be deposited by the
Seller in the Certificate Account by the Distribution Account Deposit Date for
the Distribution Date in the month following the month of repurchase and, upon
receipt of the deposit and certification with respect thereto in the form of
Exhibit N, the Trustee shall release the related Mortgage File to the Seller
and shall execute and deliver at the Seller's request any instruments of
transfer or assignment prepared by the Seller, in each case without recourse,
necessary to vest in the Seller, or a designee, the Trustee's interest in any
Subsequent Mortgage Loan released pursuant hereto.
The Trustee shall retain possession and custody of each related
Mortgage File in accordance with and subject to the terms and conditions set
forth herein. The Master Servicer shall promptly deliver to the Trustee, upon
the execution or receipt thereof, the originals of any other documents or
instruments constituting the Subsequent Mortgage File that come into the
possession of the Master Servicer from time to time.
The obligation of the Seller to substitute for or to purchase any
Subsequent Mortgage Loan that does not meet the requirements of Section 2.01
shall constitute the sole remedy respecting the defect available to the
Trustee, the Depositor, and any Certificateholder against the Seller.
II-7
Section 2.03. Representations, Warranties, and Covenants of the Seller
and the Master Servicer.
(a) IndyMac, in its capacities as Seller and Master Servicer, hereby
makes the representations and warranties in Schedule II, and by this reference
incorporated herein, to the Depositor and the Trustee, as of the Closing Date,
or if so specified therein, as of the Cut-off Date.
(b) The Seller, in its capacity as Seller, hereby makes the
representations and warranties in Schedule III, and by this reference
incorporated herein, to the Depositor and the Trustee, as of the Closing Date,
or if so specified therein, as of the related Cut-off Date.
(c) Upon discovery by any of the parties hereto of a breach of a
representation or warranty made pursuant to Section 2.03(b) that materially
and adversely affects the interests of the Certificateholders in any Mortgage
Loan, the party discovering such breach shall give prompt notice thereof to
the other parties. The Seller hereby covenants that within 90 days of the
earlier of its discovery or its receipt of written notice from any party of a
breach of any representation or warranty made pursuant to Section 2.03(b)
which materially and adversely affects the interests of the Certificateholders
in any Mortgage Loan, it shall cure such breach in all material respects, and
if such breach is not so cured, shall, (i) if the 90-day period expires before
the second anniversary of the Closing Date, remove the Mortgage Loan (a
"Deleted Mortgage Loan") from the Trust Fund and substitute in its place a
Substitute Mortgage Loan, in accordance with this Section 2.03; or (ii)
repurchase the affected Mortgage Loan or Mortgage Loans from the Trustee at
the Purchase Price in the manner set forth below. Any substitution pursuant to
(i) above shall not be effected before the delivery to the Trustee of the
Opinion of Counsel required by Section 2.05 and a Request for Release
substantially in the form of Exhibit N, and the Mortgage File for any
Substitute Mortgage Loan. Anything to the contrary herein notwithstanding,
Seller shall have no obligation to cure any breach or to repurchase or
substitute for the affected Mortgage Loan if the substance of the breach
constitutes fraud in the origination of the affected Mortgage Loan and the
Seller, at the time of origination and on the Closing Date, did not have
actual knowledge of the fraud. The Seller shall promptly reimburse the Master
Servicer and the Trustee for any expenses reasonably incurred by the Master
Servicer or the Trustee in respect of enforcing the remedies for the breach.
With respect to any Substitute Mortgage Loan or Loans, the Seller
shall deliver to the Trustee for the benefit of the Certificateholders the
Mortgage Note, the Mortgage, the related assignment of the Mortgage, and any
other documents and agreements required by Section 2.01, with the Mortgage
Note endorsed and the Mortgage assigned as required by Section 2.01. No
substitution is permitted to be made in any calendar month after the
Determination Date for the month. Scheduled Payments due with respect to
Substitute Mortgage Loans in the Due Period of substitution shall not be part
of the Trust Fund and will be retained by the Seller on the next Distribution
Date. For the Due Period of substitution, distributions to Certificateholders
will include the monthly payment due on any Deleted Mortgage Loan for the Due
Period and thereafter the Seller shall be entitled to retain all amounts
received with respect to the Deleted Mortgage Loan.
II-8
The Master Servicer shall amend the Mortgage Loan Schedule for the
benefit of the Certificateholders to reflect the removal of the Deleted
Mortgage Loan and the substitution of the Substitute Mortgage Loans and the
Master Servicer shall deliver the amended Mortgage Loan Schedule to the
Trustee. Upon the substitution, the Substitute Mortgage Loans shall be subject
to this Agreement in all respects, and the Seller shall be deemed to have made
with respect to the Substitute Mortgage Loans, as of the date of substitution,
the representations and warranties made pursuant to Section 2.03(b) with
respect to the Mortgage Loan. Upon any substitution and the deposit to the
Certificate Account of the amount required to be deposited therein in
connection with the substitution as described in the following paragraph, the
Trustee shall release the Mortgage File held for the benefit of the
Certificateholders relating to the Deleted Mortgage Loan to the Seller and
shall execute and deliver at the Seller's direction such instruments of
transfer or assignment prepared by the Seller, in each case without recourse,
as shall be necessary to vest title in the Seller, or its designee, the
Trustee's interest in any Deleted Mortgage Loan substituted for pursuant to
this Section 2.03.
For any month in which the Seller substitutes one or more Substitute
Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer
will determine the amount by which the aggregate principal balance of all such
Substitute Mortgage Loans as of the date of substitution is less than the
aggregate Stated Principal Balance of all the Deleted Mortgage Loans (after
application of the scheduled principal portion of the monthly payments due in
the Due Period of substitution). The amount of the shortage (the "Substitution
Adjustment Amount") plus, if the Seller is not the Master Servicer, the
aggregate of any unreimbursed Advances and Servicing Advances with respect to
the Deleted Mortgage Loans shall be deposited into the Certificate Account by
the Seller by the Distribution Account Deposit Date for the Distribution Date
in the month succeeding the calendar month during which the related Mortgage
Loan became required to be purchased or replaced hereunder. If the Seller
repurchases a Mortgage Loan, the Purchase Price therefor shall be deposited in
the Certificate Account pursuant to Section 3.06 by the Distribution Account
Deposit Date for the Distribution Date in the month following the month during
which the Seller became obligated hereunder to repurchase or replace the
Mortgage Loan and upon such deposit of the Purchase Price, the delivery of the
Opinion of Counsel required by Section 2.05 and receipt of a Request for
Release in the form of Exhibit N, the Trustee shall release the related
Mortgage File held for the benefit of the Certificateholders to such Person,
and the Trustee shall execute and deliver at such Person's direction such
instruments of transfer or assignment prepared by such Person, in each case
without recourse, as shall be necessary to transfer title from the Trustee.
The obligation under this Agreement of any Person to cure, repurchase, or
replace any Mortgage Loan as to which a breach has occurred and is continuing
shall constitute the sole remedy against the Person respecting the breach
available to Certificateholders, the Depositor, or the Trustee on their
behalf.
The representations and warranties made pursuant to this Section 2.03
shall survive delivery of the respective Mortgage Files to the Trustee for the
benefit of the Certificateholders.
II-9
Section 2.04. Representations and Warranties of the Depositor as to
the Mortgage Loans.
The Depositor hereby represents and warrants to the Trustee with
respect to each Mortgage Loan as of the date hereof or such other date set
forth herein that as of the Closing Date (or, for a Subsequent Mortgage Loan,
the Subsequent Transfer Date), and following the transfer of the Mortgage
Loans to it by the Seller, the Depositor had good title to the Mortgage Loans
and the Mortgage Notes were subject to no offsets, defenses, or counterclaims.
The Depositor hereby transfers to the Trustee all of its rights with
respect to the Mortgage Loans including the representations and warranties of
the Seller made pursuant to Section 2.03(b), together with all rights of the
Depositor to require the Seller to cure any breach thereof or to repurchase or
substitute for any affected Mortgage Loan in accordance with this Agreement.
The representations and warranties in this Section 2.04 shall survive
delivery of the Mortgage Files to the Trustee. Upon discovery by the Depositor
or the Trustee of any breach of any of the representations and warranties in
this Section that materially and adversely affects the interest of the
Certificateholders, the party discovering the breach shall give prompt written
notice to the others and to each Rating Agency.
Section 2.05. Delivery of Opinion of Counsel in Connection with
Substitutions and Repurchases.
(a) Notwithstanding any contrary provision of this Agreement, no
substitution pursuant to Section 2.02 or 2.03 shall be made more than 90 days
after the Closing Date unless the Seller delivers to the Trustee an Opinion of
Counsel, which Opinion of Counsel shall not be at the expense of either the
Trustee or the Trust Fund, addressed to the Trustee, to the effect that such
substitution will not (i) result in the imposition of the tax on "prohibited
transactions" on the Trust Fund or contributions after the Startup Date, as
defined in Sections 860F(a)(2) and 860G(d) of the Code, respectively or (ii)
cause the Trust Fund to fail to qualify as a REMIC at any time that any
Certificates are outstanding.
(b) Upon discovery by the Depositor, the Seller, the Master Servicer or
the Trustee that any Mortgage Loan does not constitute a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code, the party discovering
such fact shall promptly (and in any event within five Business Days of
discovery) give written notice thereof to the other parties. In connection
therewith, the Trustee shall require the Seller, at the Seller's option, to
either (i) substitute, if the conditions in Section 2.03(c) with respect to
substitutions are satisfied, a Substitute Mortgage Loan for the affected
Mortgage Loan, or (ii) repurchase the affected Mortgage Loan within 90 days of
such discovery in the same manner as it would a Mortgage Loan for a breach of
representation or warranty made pursuant to Section 2.03. The Trustee shall
reconvey to the Seller the Mortgage Loan to be released pursuant hereto in the
same manner, and on the same terms and conditions, as it would a Mortgage Loan
repurchased for breach of a representation or warranty contained in Section
2.03.
II-10
Section 2.06. Execution and Delivery of Certificates.
The Trustee acknowledges the transfer and assignment to it of the
Trust Fund and, concurrently with such transfer and assignment, has executed
and delivered to or upon the order of the Depositor, the Certificates in
authorized denominations evidencing directly or indirectly the entire
ownership of the Trust Fund. The Trustee agrees to hold the Trust Fund and
exercise the rights referred to above for the benefit of all present and
future Holders of the Certificates.
Section 2.07. REMIC Matters.
The Preliminary Statement sets forth the designations and "latest
possible maturity date" for federal income tax purposes of all interests
created hereby. The "Startup Day" for purposes of the REMIC Provisions shall
be the Closing Date. The "tax matters person" with respect to any REMIC
hereunder shall be the Trustee and shall hold the Tax Matters Person
Certificate. Each REMIC's fiscal year shall be the calendar year.
Section 2.08. [Reserved].
Section 2.09. Subsequent Transfers.
(a) Upon five Business Days prior written notice to the Trustee, the
Depositor, the Seller, and the Trustee shall complete, execute, and deliver a
Subsequent Transfer Agreement. Subject to the satisfaction of the conditions
in Article II and paragraph (b) below and pursuant to the related Subsequent
Transfer Agreement, in consideration of the Trustee's delivery on each
Subsequent Transfer Date to the order of the Seller of all or a portion of the
balance of funds in the applicable Pre-Funding Account (net of investment
earnings), the Seller shall on each Subsequent Transfer Date transfer to the
Depositor, without recourse, all the interest of the Seller in each Subsequent
Mortgage Loan listed on the Mortgage Loan Schedule delivered by the Seller on
the Subsequent Transfer Date, including all interest and principal received or
receivable by the Seller on or with respect to each Subsequent Mortgage Loan
after the related Cut-off Date and all interest and principal payments on each
Subsequent Mortgage Loan received before the related Cut-off Date in respect
of installments of interest and principal due thereafter, but not including
payments of principal and interest due and payable on each Subsequent Mortgage
Loan by the related Cut-off Date, and the Depositor shall simultaneously
transfer to the Trustee for the benefit of the Certificateholders, without
recourse, all the interest of the Depositor in each Subsequent Mortgage Loan
listed on the Mortgage Loan Schedule delivered by the Seller on the Subsequent
Transfer Date, including all interest and principal received or receivable by
the Depositor on or with respect to each Subsequent Mortgage Loan after the
related Cut-off Date and all interest and principal payments on each
Subsequent Mortgage Loan received before the related Cut-off Date in respect
of installments of interest and principal due thereafter, but not including
payments of principal and interest due and payable on each Subsequent Mortgage
Loan by the related Cut-off Date.
(b) If the assignment and transfer of the Subsequent Mortgage Loans and
the other property specified in this Section 2.09 from the Seller to the
Depositor pursuant to this Agreement is held or deemed not to be a sale or is
held or deemed to be a pledge of security for a loan, the Seller intends that
the rights
II-11
and obligations of the parties shall be established pursuant to this Agreement
and that, in such event, (i) the Seller shall be deemed to have granted and
does hereby grant to the Depositor as of each Subsequent Transfer Date a
perfected, first priority security interest in the entire interest of the
Seller in the related Subsequent Mortgage Loans and all other property
conveyed to the Depositor pursuant to this Section 2.09 and all proceeds
thereof, and (ii) this Agreement shall constitute a security agreement under
applicable law.
If the assignment and transfer of the Subsequent Mortgage Loans and
the other property specified in this Section 2.09 from the Depositor to the
Trustee pursuant to this Agreement is held or deemed not to be a sale or is
held or deemed to be a pledge of security for a loan, the Depositor intends
that the rights and obligations of the parties shall be established pursuant
to this Agreement and that, in such event, (i) the Depositor shall be deemed
to have granted and does hereby grant to the Trustee as of each Subsequent
Transfer Date a perfected, first priority security interest in the entire
interest of the Depositor in the related Subsequent Mortgage Loans and all
other property conveyed to the Trust Fund pursuant to this Section 2.09 and
all proceeds thereof, and (ii) this Agreement shall constitute a security
agreement under applicable law.
(c) The amount released from the Group 1 Pre-Funding Account by the
Trustee pursuant to this Section 2.09 shall be the aggregate Cut-off Date
Principal Balance of the Subsequent Mortgage Loans so transferred to Loan
Group 1. The amount released from the Group 2 Pre-Funding Account by the
Trustee pursuant to this Section 2.09 shall be the aggregate Cut-off Date
Principal Balance of the Subsequent Mortgage Loans so transferred to Loan
Group 2.
(d) The Trustee shall contribute from the Pre-Funding Accounts funds in
an amount equal to the aggregate Cut-off Date Principal Balance of the
Subsequent Mortgage Loans so transferred to the Trust Fund to purchase the
Subsequent Mortgage Loans on behalf of the Trust Fund, along with the other
property and rights related thereto described in Section 2.09(a) only upon the
satisfaction of each of the following conditions:
(i) the Trustee will be provided Opinions of Counsel addressed
to the Rating Agencies with respect to the sale of the Subsequent
Mortgage Loans conveyed on the Subsequent Transfer Date (the opinions
being substantially similar to the opinions delivered on the Closing
Date to the Rating Agencies with respect to the sale of the Initial
Mortgage Loans on the Closing Date);
(ii) the execution and delivery of the Subsequent Transfer
Agreement or conveyance of the related Subsequent Mortgage Loans does
not result in a reduction or withdrawal of the any ratings assigned to
the Certificates by the Ratings Agencies;
(iii) the Depositor shall deliver to the Trustee an Officer's
Certificate confirming the satisfaction of each of the conditions in
Article II and this Section 2.09(d) required to be satisfied by the
Subsequent Transfer Date;
(iv) each Subsequent Mortgage Loan conveyed on the Subsequent
Transfer Date satisfies the representations and warranties applicable
to it under this Agreement;
II-12
(v)the Subsequent Mortgage Loans conveyed on the Subsequent
Transfer Date were selected in a manner reasonably believed not to be
adverse to the interests of the Certificateholders;
(vi) no Subsequent Mortgage Loan conveyed on the Subsequent
Transfer Date was 30 or more days delinquent;
(vii) each Subsequent Mortgage Loan conveyed on the Subsequent
Transfer Date that is an Adjustable Rate Mortgage Loan is secured by a
first lien on the related Mortgaged Property;
(viii) following the conveyance of the Subsequent Mortgage
Loans on the Subsequent Transfer Date to the related Loan Group, the
characteristics of the Loan Group listed below will not vary by more
than the permitted variance listed below from the average or weighted
average of such characteristic as presented in the Prospectus
Supplement; provided that for the purpose of making the calculations,
the characteristics for each Mortgage Loan made will be taken as of
related Cut-off Date for the Mortgage Loan:
Variance
Loan Group 1:
Loan Weighted Average Coupon:......................... -0.01%
Weighted Average Maturity............................. +/- 1 month
Weighted Average Combined Loan-to-Value Ratio:........ + 0.61%
Weighted Average FICO Score........................... -5 points
Balloon Loans:........................................ + 0.01%
Maximum Principal Balance............................. + 2.00%
State Concentration:.................................. + 1.01%
Zip Code Concentration:............................... + 2.00%
Non-Owner Occupied:................................... + 0.71%
Second Liens:......................................... + 0.11%
Manufactured Housing:................................. + 2.27%
Loan Group 2: Variation
Loan Weighted Average Coupon:......................... - 0.01%
Weighted Average Maturity............................. +/- 1 month
Weighted Average Combined Loan-to-Value Ratio:........ + 0.34%
Weighted Average FICO Score........................... -5 points
Performance Loans:.................................... + 0.00%
Maximum Principal Balance............................. + $0.00
State Concentration:.................................. + 1.00%
Zip Code Concentration:............................... + 2.00%
Non-Owner Occupied:................................... + 0.24%
First Liens:.......................................... + 0.00%
Manufactured Housing:................................. + 0.02%
(ix) neither the Seller nor the Depositor will be rendered
insolvent by the conveyance of Subsequent Mortgage Loans on the
Subsequent Transfer Date;
(x) delivery of a letter or letters addressed to the Trustee
from an independent accountant retained by the Depositor confirming
that the characteristics of each Loan Group, following the
II-13
acquisition of the related Subsequent Mortgage Loans, conform to the
characteristics identified in this Section 2.09(d);
(xi) delivery to the Trustee of an Opinion of Counsel, which
Opinion of Counsel shall not be at the expense of either the Trustee
or the Trust Fund, addressed to the Trustee, to the effect that the
purchase of Subsequent Mortgage Loans will not (i) result in the
imposition of the tax on "prohibited transactions" on the Trust Fund
or contributions after the Startup Date, as defined in Sections
860F(a)(2) and 860G(d) of the Code, respectively or (ii) cause the
Trust Fund to fail to qualify as a REMIC at any time that any
Certificates are outstanding; and
(xii) delivery to the Trustee of the Mortgage File for each
Subsequent Mortgage Loan to be transferred pursuant to the related
Subsequent Transfer Agreement. The Trustee shall not be required to
investigate or otherwise verify compliance with these conditions,
except for its own receipt of documents specified above, and shall be
entitled to rely on the required Officer's Certificate.
(e) In connection with each Subsequent Transfer Date and on the related
Distribution Date, the Seller shall determine (i) the amount and correct
dispositions of the funds distributed from the Capitalized Interest Accounts
and the Pre-Funding Accounts and (ii) any other necessary matters in
connection with the administration of the Capitalized Interest Accounts and
the Pre-Funding Accounts. If the Trustee releases any amounts from a
Pre-Funding Account or from a Capitalized Interest Account because of the
Seller's calculation error, the Trustee shall not be liable therefor, and the
Seller shall immediately repay the amounts to the Trustee.
Section 2.10. Mandatory Prepayment.
Any Unused Pre-Funding Amount shall be distributed to Holders of the
related Group of Certificates in accordance with Section 4.02 on the
Distribution Date following the Due Period in which the end of the Pre-Funding
Period occurs.
II-14
ARTICLE THREE
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01. Master Servicer to Service Mortgage Loans.
For and on behalf of the Certificateholders, the Master Servicer shall
service and administer the Mortgage Loans in accordance with this Agreement
and the Servicing Standard. The Master Servicer shall not make or permit any
modification, waiver, or amendment of any term of any Mortgage Loan that would
cause the Trust Fund to fail to qualify as a REMIC or result in the imposition
of any tax under Section 860F(a) or Section 860G(d) of the Code.
Without limiting the generality of the foregoing, the Master Servicer,
in its own name or in the name of the Depositor and the Trustee, is hereby
authorized and empowered by the Depositor and the Trustee, when the Master
Servicer believes it appropriate in its reasonable judgment, to execute and
deliver, on behalf of the Trustee, the Depositor, the Certificateholders, or
any of them, any instruments of satisfaction or cancellation, or of partial or
full release or discharge, and all other comparable instruments, with respect
to the Mortgage Loans, and with respect to the Mortgaged Properties held for
the benefit of the Certificateholders. The Master Servicer shall prepare and
deliver to the Depositor or the Trustee any documents requiring execution and
delivery by either or both of them appropriate to enable the Master Servicer
to service and administer the Mortgage Loans to the extent that the Master
Servicer is not permitted to execute and deliver such documents pursuant to
the preceding sentence. Upon receipt of the documents, the Depositor or the
Trustee shall execute the documents and deliver them to the Master Servicer.
In accordance with and to the extent of the Servicing Standard, the
Master Servicer shall advance funds necessary to effect the payment of taxes
and assessments on the Mortgaged Properties, which advances shall be
reimbursable in the first instance from related collections from the
Mortgagors pursuant to Section 3.07, and further as provided in Section 3.09.
The costs incurred by the Master Servicer in effecting the timely payments of
taxes and assessments on the Mortgaged Properties and related insurance
premiums shall not, for the purpose of calculating monthly distributions to
the Certificateholders, be added to the Stated Principal Balances of the
related Mortgage Loans, notwithstanding that the Mortgage Loans so permit.
Section 3.02. Subservicing; Enforcement of the Obligations of
Subservicers.
(a) The Master Servicer may arrange for the subservicing of any
Mortgage Loan by a subservicer pursuant to a subservicing agreement (a
"Subservicer"). The subservicing arrangement and the related subservicing
agreement must provide for the servicing of the Mortgage Loans in a manner
consistent with the servicing arrangements contemplated hereunder. Unless the
context otherwise requires, references in this Agreement to actions taken or
to be taken by the Master Servicer in servicing the Mortgage Loans include
actions taken or to be taken by a Subservicer on behalf of the Master
Servicer. Notwithstanding anything in any subservicing agreement or this
Agreement relating to agreements or arrangements between the Master Servicer
and a Subservicer or references to actions taken through a Subservicer or
otherwise, the Master
III-1
Servicer shall remain obligated and liable to the Trustee and
Certificateholders for the servicing and administration of the Mortgage Loans
in accordance with this Agreement without diminution of its obligation or
liability by virtue of the subservicing agreements or arrangements or by
virtue of indemnification from the Subservicer and to the same extent and
under the same terms as if the Master Servicer alone were servicing and
administering the Mortgage Loans. All actions of each Subservicer performed
pursuant to the related subservicing agreement shall be performed as agent of
the Master Servicer with the same effect as if performed directly by the
Master Servicer.
(b) For purposes of this Agreement, the Master Servicer shall be deemed
to have received any collections, recoveries, or payments with respect to the
Mortgage Loans that are received by the Subservicer regardless of whether the
payments are remitted by the Subservicer to the Master Servicer.
Section 3.03. Rights of the Depositor and the Trustee in Respect of
the Master Servicer.
The Depositor may, but is not obligated to, enforce the obligations of
the Master Servicer hereunder and may, but is not obligated to, perform, or
cause a designee to perform, any defaulted obligation of the Master Servicer
hereunder and in connection with any such defaulted obligation to exercise the
related rights of the Master Servicer hereunder; provided that the Master
Servicer shall not be relieved of any of its obligations hereunder by virtue
of such performance by the Depositor or its designee. Neither the Trustee nor
the Depositor shall have any responsibility or liability for any action or
failure to act by the Master Servicer nor shall the Trustee or the Depositor
be obligated to supervise the performance of the Master Servicer hereunder or
otherwise.
Section 3.04. No Contractual Relationship Between Subservicers and the
Trustee.
Any subservicing arrangement that may be entered into and any other
transactions or services relating to the Mortgage Loans involving a
Subservicer in its capacity as such and not as an originator shall be deemed
to be solely between the Subservicer and the Master Servicer alone, and the
Trustee and Certificateholders shall not be deemed parties thereto and shall
have no claims, rights, obligations, duties, or liabilities with respect to
the Subservicer in its capacity as such except as set forth in Section 3.05.
Section 3.05. Trustee to Act as Master Servicer.
If the Master Servicer for any reason is no longer the Master Servicer
hereunder (including because of the occurrence or existence of an Event of
Default), the Trustee or its successor shall thereupon assume all of the
rights and obligations of the Master Servicer hereunder arising thereafter
(except that the Trustee shall not be
(i) liable for losses of the Master Servicer pursuant to
Section 3.10 or any acts or omissions of the predecessor Master
Servicer hereunder,
(ii) obligated to make Advances if it is prohibited from doing
so by applicable law,
III-2
(iii) obligated to effectuate repurchases or substitutions of
Mortgage Loans hereunder, including repurchases or substitutions
pursuant to Section 2.02 or 2.03,
(iv) responsible for expenses of the Master Servicer pursuant
to Section 2.03, or
(v) deemed to have made any representations and warranties of
the Master Servicer hereunder. Any assumption shall be subject to
Section 7.02.)
Every subservicing agreement entered into by the Master Servicer shall
contain a provision giving the successor Master Servicer the option to
terminate the agreement if a successor Master Servicer is appointed.
If the Master Servicer is no longer the Master Servicer for any reason
(including because of the occurrence or existence of any Event of Default),
the Trustee (or any other successor Master Servicer) may, at its option,
succeed to any rights and obligations of the Master Servicer under any
subservicing agreement in accordance with its terms. The Trustee (or any other
successor Master Servicer) shall not incur any liability or have any
obligations in its capacity as successor Master Servicer under a subservicing
agreement arising before the date of succession unless it expressly elects to
succeed to the rights and obligations of the Master Servicer thereunder; and
the Master Servicer shall not thereby be relieved of any liability or
obligations under the subservicing agreement arising before the date of
succession.
The Master Servicer shall, upon request of the Trustee, but at the
expense of the Master Servicer, deliver to the assuming party all documents
and records relating to each subservicing agreement and the Mortgage Loans
then being serviced thereunder and an accounting of amounts collected held by
it and otherwise use its best efforts to effect the orderly and efficient
transfer of the subservicing agreement to the assuming party.
Notwithstanding anything else in this Agreement to the contrary, in no
event shall the Trustee be liable for any servicing fee or for any
differential in the amount of the Servicing Fee paid under this Agreement and
the amount necessary to induce any successor Master Servicer to act as
successor Master Servicer under this Agreement and the transactions provided
for in this Agreement.
Section 3.06. Collection of Mortgage Loan Payments; Servicing
Accounts; Collection Account; Certificate Account; Distribution Account;
Pre-Funding Accounts; Capitalized Interest Accounts; Carryover Reserve Fund
Accounts.
(a) In accordance with and to the extent of the Servicing Standard, the
Master Servicer shall make reasonable efforts in accordance with the customary
and usual standards of practice of prudent mortgage servicers to collect all
payments called for under the Mortgage Loans to the extent the procedures are
consistent with this Agreement and any related Required Insurance Policy.
Consistent with the foregoing, the Master Servicer may in its discretion (i)
waive any late payment charge or any prepayment charge or penalty interest in
connection with the prepayment of a Mortgage Loan and (ii) extend the due
dates for payments due on a Delinquent Mortgage Loan for a period not greater
than 125 days. However, the Master
III-3
Servicer cannot extend the maturity of any Mortgage Loan past the date on
which the final payment is due on the latest maturing Mortgage Loan in the
applicable Loan Group as of the related Cut-off Date. In the event of any such
arrangement, the Master Servicer shall make Advances on the related Mortgage
Loan in accordance with Section 4.01 during the scheduled period in accordance
with the amortization schedule of the Mortgage Loan without modification
thereof because of the arrangements. The Master Servicer shall not be required
to institute or join in litigation with respect to collection of any payment
(whether under a Mortgage, Mortgage Note, or otherwise or against any public
or governmental authority with respect to a taking or condemnation) if it
reasonably believes that enforcing the provision of the Mortgage or other
instrument pursuant to which the payment is required is prohibited by
applicable law.
(b) The Master Servicer shall establish and maintain (or, if a Mortgage
Loan is subserviced by another Person, cause the related Subservicer to
establish and maintain) one or more Servicing Accounts into which the Master
Servicer shall deposit on a daily basis within one Business Day of receipt,
the following payments and collections received by it or remitted by any
Subservicer in respect of Mortgage Loans after the related Cut-off Date (other
than in respect of principal and interest due on the Mortgage Loans by the
related Cut-off Date):
(i) all payments on account of principal on the Mortgage
Loans, including Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans,
net of the related Servicing Fee and, in cases where the Master
Servicer maintains the Servicing Account, the related Master Servicing
Fee; and
(iii) all Insurance Proceeds and Liquidation Proceeds, other
than proceeds to be applied to the restoration or repair of the
Mortgaged Property or released to the Mortgagor in accordance with the
Master Servicer's normal servicing procedures.
By the Withdrawal Date in each calendar month, the Master Servicer
shall (a) withdraw from the Servicing Account all amounts on deposit therein
pursuant to clauses (i) and (ii) above (other than amounts attributable to a
Principal Prepayment in Full) and (b) deposit such amounts in the Collection
Account.
By the Business Day in each calendar month following the deposit in
the Servicing Account of amounts on deposit therein pursuant to clause (iii)
above or pursuant to any Principal Prepayment in Full, the Master Servicer
shall (a) withdraw such amounts from the Servicing Account and (b) deposit
such amounts in the Collection Account.
(c) The Master Servicer shall establish and maintain an account (the
"Collection Account") into which the Master Servicer shall deposit, as and
when required by paragraph (b) of this Section 3.06, all amounts required to
be deposited into the Collection Account pursuant to that paragraph.
(d) The Master Servicer shall establish and maintain a Certificate
Account into which the Master Servicer shall deposit on a daily basis (i)
within one Business Day of deposit in the Collection Account (in
III-4
the case of items (i) through (iii) below) and (2) within one Business Day of
receipt (in the case of all other items), except as otherwise specified
herein, the following payments and collections received by it or remitted by
any Subservicer in respect of Mortgage Loans after the related Cut-off Date
(other than in respect of principal and interest due on the Mortgage Loans by
the related Cut-off Date) and the following amounts required to be deposited
hereunder:
(i) all payments on account of principal on the Mortgage
Loans, including Principal Prepayments;
(ii) all payments on account of interest on the Mortgage
Loans, net of the related Servicing Fee and the related Master
Servicing Fee;
(iii) all Insurance Proceeds and Liquidation Proceeds, other
than proceeds to be applied to the restoration or repair of the
Mortgaged Property or released to the Mortgagor in accordance with the
Master Servicer's normal servicing procedures;
(iv) any amount required to be deposited by the Master Servicer
pursuant to Section 3.06(f) in connection with any losses on Permitted
Investments;
(v) any amounts required to be deposited by the Master
Servicer pursuant to Sections 3.12 and 3.14;
(vi) all Purchase Prices from the Master Servicer or Seller
and all Substitution Adjustment Amounts;
(vii) all Advances made by the Master Servicer pursuant to
Section 4.01;
(viii) any other amounts required to be deposited hereunder;
and
(ix) all Prepayment Charges collected.
In addition, with respect to any Mortgage Loan that is subject to a
buydown agreement, on each Due Date for the Mortgage Loan, in addition to the
monthly payment remitted by the Mortgagor, the Master Servicer shall cause
funds to be deposited into the Certificate Account in an amount required to
cause an amount of interest to be paid with respect to the Mortgage Loan equal
to the amount of interest that has accrued on the Mortgage Loan from the
preceding Due Date at the Mortgage Rate net of the Master Servicing Fee Rate
on that date.
The foregoing requirements for remittance by the Master Servicer shall
be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of late payment charges or
assumption fees, if collected, need not be remitted by the Master Servicer. If
the Master Servicer remits any amount not required to be remitted, it may at
any time withdraw that amount from the Certificate Account, any provision
herein to the contrary notwithstanding. The withdrawal or direction may be
accomplished by delivering written notice of it to the Trustee or any other
institution maintaining the
III-5
Certificate Account that describes the amounts deposited in error in the
Certificate Account. The Master Servicer shall maintain adequate records with
respect to all withdrawals made pursuant to this Section 3.06. All funds
deposited in the Certificate Account shall be held in trust for the
Certificateholders until withdrawn in accordance with Section 3.09.
(e) The Trustee shall establish and maintain the Distribution Account
on behalf of the Certificateholders. The Trustee shall, promptly upon receipt,
deposit in the Distribution Account and retain therein the following:
(i) the aggregate amount remitted by the Master Servicer to
the Trustee pursuant to Section 3.09(a);
(ii) any amount deposited by the Master Servicer pursuant to
Section 3.06(f) in connection with any losses on Permitted
Investments; and
(iii) any other amounts deposited hereunder which are required
to be deposited in the Distribution Account.
If the Master Servicer remits any amount not required to be remitted,
it may at any time direct the Trustee in writing to withdraw that amount from
the Distribution Account, any provision herein to the contrary
notwithstanding. The direction may be accomplished by delivering an Officer's
Certificate to the Trustee that describes the amounts deposited in error in
the Distribution Account. All funds deposited in the Distribution Account
shall be held by the Trustee in trust for the Certificateholders until
disbursed in accordance with this Agreement or withdrawn in accordance with
Section 3.09. In no event shall the Trustee incur liability for withdrawals
from the Distribution Account at the direction of the Master Servicer.
(f) (i) Each institution at which the Certificate Account or the
Distribution Account is maintained shall invest the funds therein as directed
in writing by the Master Servicer in Permitted Investments, which shall mature
not later than (i) in the case of the Certificate Account, the second Business
Day preceding the related Distribution Account Deposit Date (except that if
the Permitted Investment is an obligation of the institution that maintains
the account, then the Permitted Investment shall mature not later than the
Business Day preceding the Distribution Account Deposit Date) and (ii) in the
case of the Distribution Account, the Business Day next preceding the
Distribution Date (except that if the Permitted Investment is an obligation of
the institution that maintains such account, then the Permitted Investment
shall mature not later than the Distribution Date) and, in each case, shall
not be sold or disposed of before its maturity. All such Permitted Investments
shall be made in the name of the Trustee, for the benefit of the
Certificateholders. All income realized from any such investment of funds on
deposit in the Certificate Account shall be for the benefit of the Master
Servicer as servicing compensation and shall be remitted to it monthly as
provided herein. The amount of any realized losses on Permitted Investments in
the Certificate Account or the Distribution Account shall promptly be
deposited by the Master Servicer in the Certificate Account or paid to the
Trustee for deposit into the Distribution Account, as applicable. The Trustee
shall not be liable for the amount of any loss incurred in respect of any
investment or lack of investment of funds held in the Certificate Account or
the Distribution Account and made in accordance with this Section 3.06.
III-6
(ii) The Trustee shall invest funds in the Capitalized Interest
Accounts or Pre-Funding Accounts as directed in writing by the Master
Servicer in Permitted Investments, which shall mature not later than
the Business Day next preceding the Distribution Date (except that if
such Permitted Investment is an obligation of the institution that
maintains such account, then such Permitted Investment shall mature
not later than the Distribution Date) and, in each case, shall not be
sold or disposed of before its maturity. All such Permitted
Investments shall be made in the name of the Trustee, for the benefit
of the Certificateholders.
(g) The Trustee shall establish and maintain, on behalf of the
Certificateholders, two separate accounts denominated the Group 1 Pre-Funding
Account and the Group 2 Pre-Funding Account in the name of the Trustee. Each
of the Pre-Funding Accounts shall be treated as an "outside reserve fund"
under applicable Treasury regulations and shall not be part of any REMIC
created hereunder. Any investment earnings on the Pre-Funding Accounts shall
be treated as owned by the Seller and will be taxable to the Seller. The
amount of any realized losses on Permitted Investments in a Pre-Funding
Account shall promptly by deposited by Seller in that Pre-Funding Account. On
the Closing Date, the Seller shall remit $4,325,954 to the Trustee for deposit
in the Pre-Funding Accounts. The Trustee shall allocate (i) $3,755,384 of the
amount to the Group 1 Pre-Funding Account for the purchase of Subsequent
Mortgage Loans to be included in Loan Group 1 and (ii) $570,570 of the amount
to the Group 2 Pre-Funding Account for the purchase of Subsequent Mortgage
Loans to be included in Loan Group 2.
The Trustee shall establish and maintain, on behalf of the
Certificateholders, two separate accounts denominated the Group 1 Capitalized
Interest Account and the Group 2 Capitalized Interest Account in the name of
the Trustee. Each of the Capitalized Interest Accounts shall be treated as an
"outside reserve fund" under applicable Treasury regulations and shall not be
part of the REMIC. Any investment earnings on the Capitalized Interest
Accounts shall be treated as owned by the Seller and will be taxable to the
Seller. The amount of any realized losses on Permitted Investments in a
Capitalized Interest Account shall promptly be deposited by the Seller in that
Capitalized Interest Account.
On each Subsequent Transfer Date, upon satisfaction of the conditions
in Section 2.09, the Trustee shall withdraw from the related Pre-Funding
Accounts 100% of the aggregate of the Cut-off Date Principal Balances of the
Subsequent Mortgage Loans sold to the Trust Fund for inclusion in Loan Group 1
or Loan Group 2, as the case may be, on the Subsequent Transfer Date and pay
that amount to the order of the Seller.
On the Business Day immediately prior to that Distribution Date
following the Due Period in which the Pre-Funding Period ends, the Trustee
shall (i) withdraw the Unused Pre-Funding Amount from each of the Pre-Funding
Accounts, (ii) promptly deposit each amount in the Distribution Account, and
(iii) distribute each amount to the related Certificate Group on the
Distribution Date pursuant to Section 4.02.
The amount deposited in the Distribution Account pursuant to the
preceding paragraph shall be net of any investment earnings on the amounts on
deposit in the Pre-Funding Accounts.
On the Business Day before each Distribution Date, through the
Distribution Date following the Due Period in which the Pre-Funding Period
ends, the Trustee shall transfer from each Capitalized Interest Account to the
Distribution Account the related Capitalized Interest
III-7
Requirement and shall distribute such amount to the related Certificate Group
on the Distribution Date pursuant to Section 4.02. To the extent that a
Capitalized Interest Requirement on any the Distribution Date exceeds the
amounts on deposit in the related Capitalized Interest Account, the Trustee
shall transfer to the Distribution Account, to the extent of the shortfall in
the Capitalized Interest Requirement, the investment earnings on the amounts
on deposit in the related Capitalized Interest Account and Pre-Funding
Account. The remaining investment earnings on deposit in the Capitalized
Interest Account and the Pre-Funding Account shall be transferred to the
Seller.
All amounts remaining in the Capitalized Interest Accounts and any
investment earnings remaining in the Pre-Funding Accounts on the Distribution
Date following the Due Period in which the Pre-Funding Period ends shall be
transferred to the Seller.
(h) On the Closing Date, the Trustee shall establish and maintain in
its name, in trust for the benefit of the Holders of the Certificates, the
Carryover Reserve Fund Accounts. Each Carryover Reserve Fund Account shall be
an Eligible Account, and funds on deposit therein shall be held separate and
apart from, and shall not be commingled with, any other moneys, including
without limitation, other moneys held by the Trustee pursuant to this
Agreement.
(i) On the Closing Date, $5,000 will be deposited by the
Depositor into each Carryover Reserve Fund Account. On each
Distribution Date, the Trustee shall transfer from the Certificate
Account to the Carryover Reserve Fund Account pursuant to Section
4.02(I)(iii)9., the Required Carryover Reserve Fund Account Deposit.
Amounts on deposit in a Carryover Reserve Fund Account can be
withdrawn by the Trustee in connection with any Distribution Date to
fund the amounts required to be distributed sequentially, first to the
related LIBOR Certificates, any Net Rate Carryover Shortfall Amounts,
and then sequentially in accordance with Section 4.02(I)(iii)(1.)
through (8.), to the extent Net Monthly Excess Cashflow on such date
is insufficient to make such payments. On any Distribution Date, any
amounts on deposit in the Carryover Reserve Fund Account in excess of
the Required Carryover Reserve Fund Account Amount shall be
distributed to the Class OC Certificateholder pursuant to Section
4.02(I)(iii)10.
(ii) Funds in a Carryover Reserve Fund Account shall be
invested in Permitted Investments by the Trustee at the direction of
the Master Servicer. Any net investment earnings on such amounts shall
be payable to the Master Servicer. The Master Servicer shall be deemed
the owner of the Carryover Reserve Fund Account for federal tax
purposes and shall direct the Trustee in writing as to the investment
of amounts therein. The Trustee shall have no liability for losses on
investments in Permitted Investments made pursuant to this Section
(other than as obligor on any such investments). Upon termination of
the Trust Fund, any amounts remaining in the Carryover Reserve Fund
Account shall be distributed to the Holder of the Class OC Certificate
in the same manner as if distributed pursuant to Section
4.02(I)(iii)10. hereof.
(iii) The Trustee shall deposit in each Carryover Reserve Fund
Account, all amounts received from Bear ▇▇▇▇▇▇▇ Financial Products,
Inc. on any Distribution Date pursuant to the related
III-8
Yield Maintenance Agreement. The Trustee shall also deposit into the
related Carryover Reserve Fund Account all proceeds it receives from
the termination of the related Yield Maintenance Agreement pursuant to
Section 4.04. If the Trustee shall deposit in the related Carryover
Reserve Fund Account any amount not required to be deposited therein,
it may at any time withdraw such amount from such Carryover Reserve
Fund Account, any provision herein to the contrary notwithstanding.
(iv) On the Distribution Date immediately after the
Distribution Date on which the aggregate Class Certificate Balance of
the related Senior Certificates equals zero, any amounts on deposit in
the related Carryover Reserve Fund Account not payable on the related
Senior Certificates shall be deposited into the Certificate Account
and distributed to the Holder of the related Class OC Certificate in
the same manner as if distributed pursuant to Section 4.02(I)(iii)10.
hereof.
If there are amounts deposited into either Carryover Reserve Fund
Account in error, the Master Servicer may at any time direct the Trustee in
writing to withdraw that amount from such Carryover Reserve Fund Account, any
provision herein to the contrary notwithstanding. The direction may be
accomplished by delivering an Officer's Certificate to the Trustee that
describes the amounts deposited in error in the such Carryover Reserve Fund
Account. All funds deposited in the such Carryover Reserve Fund Account shall
be held by the Trustee in trust for the Certificateholders until disbursed in
accordance with this Agreement. In no event shall the Trustee incur liability
for withdrawals from the Carryover Reserve Fund Account at the direction of
the Master Servicer.
(i) The Master Servicer shall give notice to the Trustee, the Seller,
each Rating Agency and the Depositor of any proposed change of the location of
the Certificate Account and the Collection Account not later than 30 days and
not more than 45 days before any change thereof. The Trustee shall give notice
to the Master Servicer, the Seller, each Rating Agency and the Depositor of
any proposed change of the location of the Distribution Account not later than
30 days and not more than 45 days before any change thereof.
Section 3.07. Collection of Taxes, Assessments and Similar Items;
Escrow Accounts.
(a) To the extent required by the related Mortgage Note and not
violative of current law, the Master Servicer shall establish and maintain one
or more accounts (each, an "Escrow Account") and deposit and retain therein
all collections from the Mortgagors (or advances) for the payment of taxes,
assessments, hazard insurance premiums or comparable items for the account of
the Mortgagors. Nothing herein shall require the Master Servicer to compel a
Mortgagor to establish an Escrow Account in violation of applicable law.
(b) Withdrawals of amounts so collected from the Escrow Accounts may be
made only to effect timely payment of taxes, assessments, hazard insurance
premiums, condominium or PUD association dues, or comparable items, to
reimburse (without duplication) the Master Servicer out of related collections
for any payments made pursuant to Sections 3.12 (with respect to taxes and
assessments and insurance premiums) and 3.13 (with respect to hazard
insurance), to refund to any Mortgagors any sums determined to
III-9
be overages, to pay interest, if required by law or the related Mortgage or
Mortgage Note, to Mortgagors on balances in the Escrow Account or to clear and
terminate the Escrow Account at the termination of this Agreement in
accordance with Section 9.01. The Escrow Accounts shall not be a part of the
Trust Fund.
(c) The Master Servicer shall advance any payments referred to in
Section 3.07(a) that are not timely paid by the Mortgagors or advanced by the
Master Servicer on the date when the tax, premium or other cost for which such
payment is intended is due, but the Master Servicer shall be required so to
advance only to the extent that such advances, in the good faith judgment of
the Master Servicer, will be recoverable by the Master Servicer out of
Insurance Proceeds, Liquidation Proceeds or otherwise.
Section 3.08. Access to Certain Documentation and Information
Regarding the Mortgage Loans.
The Master Servicer shall afford the Depositor and the Trustee
reasonable access to all records and documentation regarding the Mortgage
Loans and all accounts, insurance information and other matters relating to
this Agreement, such access being afforded without charge, but only upon
reasonable request and during normal business hours at the office designated
by the Master Servicer.
Upon reasonable advance notice in writing, the Master Servicer will
provide to each Certificateholder that is a savings and loan association,
bank, or insurance company certain reports and reasonable access to
information and documentation regarding the Mortgage Loans sufficient to
permit the Certificateholder to comply with applicable regulations of the OTS
or other regulatory authorities with respect to investment in the
Certificates. The Master Servicer shall be entitled to be reimbursed by each
such Certificateholder for actual expenses incurred by the Master Servicer in
providing the reports and access.
Section 3.09. Permitted Withdrawals from the Certificate Account, the
Distribution Account and the Carryover Reserve Fund Accounts.
(a) The Master Servicer may (and, in the case of clause (ix) below,
shall) from time to time make withdrawals from the Certificate Account for the
following purposes:
(i) to pay to the Master Servicer or the related Subservicer
(to the extent not previously retained) the servicing compensation to
which it is entitled pursuant to Section 3.15, and to pay to the
Master Servicer, as additional master servicing compensation, earnings
on or investment income with respect to funds in or credited to the
Certificate Account;
(ii) to reimburse the Master Servicer for unreimbursed
Advances made by it, such right of reimbursement pursuant to this
subclause (ii) being limited to amounts received on the Mortgage Loans
in respect of which the Advance was made;
(iii) to reimburse the Master Servicer for any Nonrecoverable
Advance previously made;
(iv) to reimburse the Master Servicer for Insured Expenses
from the related Insurance Proceeds;
III-10
(v) to reimburse the Master Servicer for (a) unreimbursed
Servicing Advances, the Master Servicer's right to reimbursement
pursuant to this clause (a) with respect to any Mortgage Loan being
limited to amounts received on the Mortgage Loans that represent late
recoveries of the payments for which the advances were made pursuant
to Section 3.01 or Section 3.07 and (b) for unpaid Master Servicing
Fees as provided in Section 3.12;
(vi) to pay to the purchaser, with respect to each Mortgage
Loan or property acquired in respect thereof that has been purchased
pursuant to Section 2.02, 2.03, or 3.14, all amounts received thereon
after the date of such purchase;
(vii) to reimburse the Seller, the Master Servicer, or the
Depositor for expenses incurred by any of them and reimbursable
pursuant to Section 6.03;
(viii) to withdraw any amount deposited in the Certificate
Account and not required to be deposited therein;
(ix) by the Distribution Account Deposit Date, to withdraw (1)
the related Available Funds for both Loan Groups, the Trustee Fee for
the Distribution Date, to the extent on deposit, and (2) the
Prepayment Charges on deposit, and remit such amount to the Trustee
for deposit in the Distribution Account; and
(x) to clear and terminate the Certificate Account upon
termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, to justify any withdrawal from the
Certificate Account pursuant to subclauses (i), (ii), (iv), (v), and (vi).
Before making any withdrawal from the Certificate Account pursuant to
subclause (iii), the Master Servicer shall deliver to the Trustee an Officer's
Certificate of a Servicing Officer indicating the amount of any previous
Advance determined by the Master Servicer to be a Nonrecoverable Advance and
identifying the related Mortgage Loans and their respective portions of the
Nonrecoverable Advance.
(b) The Trustee shall withdraw funds from the Distribution Account for
distributions to Certificateholders in the manner specified in this Agreement
(and to withhold from the amounts so withdrawn the amount of any taxes that it
is authorized to withhold pursuant to the last paragraph of Section 8.11). In
addition, the Trustee may from time to time make withdrawals from the
Distribution Account for the following purposes:
(i) to pay to itself the Trustee Fee for the related
Distribution Date;
(ii) [reserved];
(iii) to pay to the Master Servicer as additional servicing
compensation earnings on or investment income with respect to funds in
the Distribution Account;
III-11
(iv) to withdraw and return to the Master Servicer any amount
deposited in the Distribution Account and not required to be deposited
therein; and
(v) to clear and terminate the Distribution Account upon
termination of the Agreement pursuant to Section 9.01.
(c) On each Distribution Date, the Trustee shall make withdrawals from
each Carryover Reserve Fund Account for deposit in the Distribution Account of
the amount required pursuant to Section 3.06(h). Such amounts shall be
distributed to Certificateholders in accordance with the priorities set forth
in Section 3.06(h)(i). On the earlier of (i) the termination of this Agreement
pursuant to Section 9.01 and (ii) the Distribution Date on which all of the
LIBOR Certificates are reduced to zero, any amount remaining on deposit in the
Carryover Reserve Fund Accounts after giving effect to the requirements of the
preceding sentence shall be withdrawn by the Trustee and paid to the Holder of
the related Class of Class OC Certificates.
Section 3.10. Maintenance of Hazard Insurance; Maintenance of Primary
Insurance Policies.
(a) The Master Servicer shall maintain, for each Mortgage Loan, hazard
insurance with extended coverage in an amount that is at least equal to the
lesser of
(i) the maximum insurable value of the improvements securing the
Mortgage Loan and
(ii) the greater of (y) the outstanding principal balance of the
Mortgage Loan and (z) an amount such that the proceeds of the policy are
sufficient to prevent the Mortgagor or the mortgagee from becoming a
co-insurer.
Each policy of standard hazard insurance shall contain, or have an
accompanying endorsement that contains, a standard mortgagee clause. Any
amounts collected under the policies (other than the amounts to be applied to
the restoration or repair of the related Mortgaged Property or amounts
released to the Mortgagor in accordance with the Master Servicer's normal
servicing procedures) shall be deposited in the Certificate Account. Any cost
incurred in maintaining any insurance shall not, for the purpose of
calculating monthly distributions to the Certificateholders or remittances to
the Trustee for their benefit, be added to the principal balance of the
Mortgage Loan, notwithstanding that the Mortgage Loan so permits. Such costs
shall be recoverable by the Master Servicer out of late payments by the
related Mortgagor or out of Liquidation Proceeds to the extent permitted by
Section 3.09. No earthquake or other additional insurance is to be required of
any Mortgagor or maintained on property acquired in respect of a Mortgage
other than pursuant to any applicable laws and regulations in force that
require additional insurance. If the Mortgaged Property is located at the time
of origination of the Mortgage Loan in a federally designated special flood
hazard area and the area is participating in the national flood insurance
program, the Master Servicer shall maintain flood insurance for the Mortgage
Loan. The flood insurance shall be in an amount equal to the least of (i) the
original principal balance of the related Mortgage Loan, (ii) the replacement
value of the improvements that are part of the Mortgaged Property, and (iii)
the maximum amount of flood insurance available for the related Mortgaged
Property under the national flood insurance program.
III-12
If the Master Servicer obtains and maintains a blanket policy insuring
against hazard losses on all of the Mortgage Loans, it shall have satisfied
its obligations in the first sentence of this Section 3.10. The policy may
contain a deductible clause on terms substantially equivalent to those
commercially available and maintained by comparable servicers. If the policy
contains a deductible clause and a policy complying with the first sentence of
this Section 3.10 has not been maintained on the related Mortgaged Property,
and if a loss that would have been covered by the required policy occurs, the
Master Servicer shall deposit in the Certificate Account the amount not
otherwise payable under the blanket policy because of the deductible clause.
In connection with its activities as Master Servicer of the Mortgage Loans,
the Master Servicer agrees to present, on behalf of itself, the Depositor, and
the Trustee for the benefit of the Certificateholders, claims under any
blanket policy.
(b) The Master Servicer shall not take any action that would result in
non-coverage under any applicable Primary Insurance Policy of any loss that,
but for the actions of the Master Servicer, would have been covered
thereunder. The Master Servicer shall not cancel or refuse to renew any
Primary Insurance Policy that is in effect at the date of the initial issuance
of the Certificates and is required to be kept in force hereunder unless the
replacement Primary Insurance Policy for the canceled or non-renewed policy is
maintained with a Qualified Insurer. The Master Servicer need not maintain any
Primary Insurance Policy if maintaining the Primary Insurance Policy is
prohibited by applicable law. The Master Servicer agrees, to the extent
permitted by applicable law, to effect the timely payment of the premiums on
each Primary Insurance Policy, and any costs not otherwise recoverable shall
be recoverable by the Master Servicer from the related liquidation proceeds.
In connection with its activities as Master Servicer of the Mortgage
Loans, the Master Servicer agrees to present, on behalf of itself, the Trustee
and the Certificateholders, claims to the insurer under any Primary Insurance
Policies and, in this regard, to take any reasonable action in accordance with
the Servicing Standard necessary to permit recovery under any Primary
Insurance Policies respecting defaulted Mortgage Loans. Any amounts collected
by the Master Servicer under any Primary Insurance Policies shall be deposited
in the Certificate Account or the Collection Account (as applicable).
Section 3.11. Enforcement of Due-On-Sale Clauses; Assumption
Agreements.
(a) Except as otherwise provided in this Section 3.11, when any
property subject to a Mortgage has been conveyed by the Mortgagor, the Master
Servicer shall to the extent that it has knowledge of the conveyance and in
accordance with the Servicing Standard, enforce any due-on-sale clause
contained in any Mortgage Note or Mortgage, to the extent permitted under
applicable law and governmental regulations, but only to the extent that
enforcement will not adversely affect or jeopardize coverage under any
Required Insurance Policy. Notwithstanding the foregoing, the Master Servicer
is not required to exercise these rights with respect to a Mortgage Loan if
the Person to whom the related Mortgaged Property has been conveyed or is
proposed to be conveyed satisfies the conditions contained in the Mortgage
Note and Mortgage related thereto and the consent of the mortgagee under the
Mortgage Note or Mortgage is not otherwise so required under the Mortgage Note
or Mortgage as a condition to the transfer.
III-13
If (i) the Master Servicer is prohibited by law from enforcing any
due-on-sale clause, (ii) coverage under any Required Insurance Policy would be
adversely affected, (iii) the Mortgage Note does not include a due-on-sale
clause, or (iv) nonenforcement is otherwise permitted hereunder, the Master
Servicer is authorized, subject to Section 3.11(b), to take or enter into an
assumption and modification agreement from or with the person to whom the
property has been or is about to be conveyed, pursuant to which the person
becomes liable under the Mortgage Note and, unless prohibited by applicable
state law, the Mortgagor remains liable thereon. The Mortgage Loan must
continue to be covered (if so covered before the Master Servicer enters into
the agreement) by the applicable Required Insurance Policies.
The Master Servicer, subject to Section 3.11(b), is also authorized
with the prior approval of the insurers under any Required Insurance Policies
to enter into a substitution of liability agreement with the Person, pursuant
to which the original Mortgagor is released from liability and the Person is
substituted as Mortgagor and becomes liable under the Mortgage Note.
Notwithstanding the foregoing, the Master Servicer shall not be deemed to be
in default under this Section 3.11 because of any transfer or assumption that
the Master Servicer reasonably believes it is restricted by law from
preventing, for any reason whatsoever.
(b) Subject to the Master Servicer's duty to enforce any due-on-sale
clause to the extent set forth in Section 3.11(a), in any case in which a
Mortgaged Property has been conveyed to a Person by a Mortgagor, and the
Person is to enter into an assumption agreement or modification agreement or
supplement to the Mortgage Note or Mortgage that requires the signature of the
Trustee, or if an instrument of release signed by the Trustee is required
releasing the Mortgagor from liability on the Mortgage Loan, the Master
Servicer shall prepare and deliver to the Trustee for signature and shall
direct the Trustee, in writing, to execute the assumption agreement with the
Person to whom the Mortgaged Property is to be conveyed, and the modification
agreement or supplement to the Mortgage Note or Mortgage or other instruments
appropriate to carry out the terms of the Mortgage Note or Mortgage or
otherwise to comply with any applicable laws regarding assumptions or the
transfer of the Mortgaged Property to the Person. In connection with any such
assumption, no material term of the Mortgage Note may be changed.
In addition, the substitute Mortgagor and the Mortgaged Property must
be acceptable to the Master Servicer in accordance with its underwriting
standards as then in effect. Together with each substitution, assumption, or
other agreement or instrument delivered to the Trustee for execution by it,
the Master Servicer shall deliver an Officer's Certificate signed by a
Servicing Officer stating that the requirements of this subsection have been
met in connection therewith. The Master Servicer shall notify the Trustee that
any substitution or assumption agreement has been completed by forwarding to
the Trustee the original of the substitution or assumption agreement, which in
the case of the original shall be added to the related Mortgage File and
shall, for all purposes, be considered a part of the Mortgage File to the same
extent as all other documents and instruments constituting a part thereof. The
Master Servicer will retain any fee collected by it for entering into an
assumption or substitution of liability agreement as additional master
servicing compensation.
III-14
Section 3.12. Realization Upon Defaulted Mortgage Loans; Repurchase of
Certain Mortgage Loans.
The Master Servicer shall use reasonable efforts in accordance with
the Servicing Standard to foreclose on or otherwise comparably convert the
ownership of assets securing such of the Mortgage Loans as come into and
continue in default and as to which no satisfactory arrangements can be made
for collection of delinquent payments. In connection with the foreclosure or
other conversion, the Master Servicer shall follow the Servicing Standard and
shall follow the requirements of the insurer under any Required Insurance
Policy. The Master Servicer shall not be required to expend its own funds in
connection with any foreclosure or towards the restoration of any property
unless it determines (i) that the restoration or foreclosure will increase the
proceeds of liquidation of the Mortgage Loan after reimbursement to itself of
restoration expenses and (ii) that restoration expenses will be recoverable to
it through Liquidation Proceeds (respecting which it shall have priority for
purposes of withdrawals from the Certificate Account). The Master Servicer
shall be responsible for all other costs and expenses incurred by it in any
foreclosure proceedings. The Master Servicer is entitled to reimbursement
thereof from the liquidation proceeds with respect to the related Mortgaged
Property, as provided in the definition of Liquidation Proceeds. If the Master
Servicer has knowledge that a Mortgaged Property that the Master Servicer is
contemplating acquiring in foreclosure or by deed in lieu of foreclosure is
located within a one mile radius of any site listed in the Expenditure Plan
for the Hazardous Substance Clean Up Bond Act of 1984 or other site with
environmental or hazardous waste risks known to the Master Servicer, the
Master Servicer will, before acquiring the Mortgaged Property, consider the
risks and only take action in accordance with its established environmental
review procedures.
With respect to any REO Property, the deed or certificate of sale
shall be taken in the name of the Trustee for the benefit of the
Certificateholders, or its nominee, on behalf of the Certificateholders. The
Trustee's name shall be placed on the title to the REO Property solely as the
Trustee hereunder and not in its individual capacity. The Master Servicer
shall ensure that the title to the REO Property references the Pooling and
Servicing Agreement and the Trustee's capacity hereunder. Pursuant to its
efforts to sell the REO Property, the Master Servicer shall either itself or
through an agent selected by the Master Servicer protect and conserve the REO
Property in accordance with the Servicing Standard.
The Master Servicer shall perform the tax reporting and withholding
required by Sections 1445 and 6050J of the Code with respect to foreclosures
and abandonments, the tax reporting required by Section 6050H of the Code with
respect to the receipt of mortgage interest from individuals and, if required
by Section 6050P of the Code with respect to the cancellation of indebtedness
by certain financial entities, by preparing any required tax and information
returns, in the form required, and delivering the same to the Trustee for
filing.
If the Trust Fund acquires any Mortgaged Property as aforesaid or
otherwise in connection with a default or imminent default on a Mortgage Loan,
the REO Property shall only be held temporarily, shall be actively marketed
for sale, and the Master Servicer shall dispose of the Mortgaged Property as
soon as practicable, and in any case before the end of the third calendar year
following the calendar year in which
III-15
the Trust Fund acquires the property. Notwithstanding any other provision of
this Agreement, no Mortgaged Property acquired by the Trust Fund shall be
rented (or allowed to continue to be rented) or otherwise used for the
production of income by or on behalf of the Trust Fund in such a manner or
pursuant to any terms that would (i) cause the Mortgaged Property to fail to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code or (ii) subject any REMIC created hereunder to the imposition of any
federal, state, or local income taxes on the proceeds received from the
Mortgaged Property under Section 860G(c) of the Code or otherwise, unless the
Master Servicer has agreed to indemnify and hold harmless the Trust Fund with
respect to the imposition of any such taxes.
The decision of the Master Servicer to foreclose on a defaulted
Mortgage Loan shall be subject to a determination by the Master Servicer that
the proceeds of the foreclosure would exceed the costs and expenses of
bringing a foreclosure proceeding. The proceeds received from the maintenance
of any REO Properties, net of reimbursement to the Master Servicer for
expenses incurred (including any property or other taxes) in connection with
maintenance of the REO Properties and net of unreimbursed Servicing Fees,
Advances, and Servicing Advances, shall be applied to the payment of principal
of and interest on the related defaulted Mortgage Loans (with interest
accruing as though the Mortgage Loans were still current and adjustments, if
applicable, to the Mortgage Rate were being made in accordance with the
Mortgage Note) and all such proceeds shall be deemed, for all purposes in this
Agreement, to be payments on account of principal and interest on the related
Mortgage Notes and shall be deposited into the Certificate Account. To the
extent the net proceeds received during any calendar month exceeds the amount
attributable to amortizing principal and accrued interest at the related
Mortgage Rate on the related Mortgage Loan for the calendar month, the excess
shall be considered to be a partial prepayment of principal of the related
Mortgage Loan.
The proceeds from any liquidation of a Mortgage Loan, as well as any
proceeds from an REO Property, will be applied in the following order of
priority: first, to reimburse the Master Servicer for any related unreimbursed
Servicing Advances or Master Servicing Fees or for any related unreimbursed
Advances, as applicable; second, to reimburse the Master Servicer, as
applicable, and to reimburse the Certificate Account for any Nonrecoverable
Advances (or portions thereof) that were previously withdrawn by the Master
Servicer pursuant to Section 3.09(a)(iii) that related to the Mortgage Loan;
third, to accrued and unpaid interest (to the extent no Advance has been made
for such amount or any such Advance has been reimbursed) on the Mortgage Loan
or related REO Property, at the Adjusted Net Mortgage Rate through the end of
the Due Period preceding the Distribution Date on which such amounts are
required to be distributed; and fourth, as a recovery of principal of the
Mortgage Loan. The Master Servicer will retain any Excess Proceeds from the
liquidation of a Liquidated Mortgage Loan as additional servicing compensation
pursuant to Section 3.15.
The Master Servicer may agree to a modification of any Mortgage Loan
(a "Modified Mortgage Loan") at the request of the related Mortgagor if (i)
the modification is in lieu of a refinancing and the Mortgage Rate on the
Modified Mortgage Loan, as modified, is approximately a prevailing market rate
for newly-originated Mortgage Loans having similar terms and (ii) the Master
Servicer purchases the Modified Mortgage Loan from the Trust Fund as described
below. Effective immediately after the modification, and,
III-16
in any event, on the same Business Day on which the modification occurs, all
interest of the Trustee in the Modified Mortgage Loan shall automatically be
deemed transferred and assigned to the Master Servicer and all benefits and
burdens of ownership thereof, including the right to accrued interest thereon
from the date of modification and the risk of default thereon, shall pass to
the Master Servicer. The Master Servicer shall promptly deliver to the Trustee
a certification of a Servicing Officer to the effect that all requirements of
this paragraph have been satisfied with respect to the Modified Mortgage Loan.
The Master Servicer shall deposit the Purchase Price for any Modified
Mortgage Loan in the Certificate Account pursuant to Section 3.06 within one
Business Day after the purchase of the Modified Mortgage Loan. Upon receipt by
the Trustee of written notification of any such deposit signed by a Servicing
Officer, the Trustee shall release to the Master Servicer the related Mortgage
File and shall execute and deliver such instruments of transfer or assignment,
in each case without recourse, as shall be necessary to vest in the Master
Servicer any Modified Mortgage Loan previously transferred and assigned
pursuant hereto. The Master Servicer covenants and agrees to indemnify the
Trust Fund against any liability for any "prohibited transaction" taxes and
any related interest, additions, and penalties imposed on the Trust Fund
established hereunder as a result of any modification of a Mortgage Loan
effected pursuant to this Section, any holding of a Modified Mortgage Loan by
the Trust Fund or any purchase of a Modified Mortgage Loan by the Master
Servicer (but such obligation shall not prevent the Master Servicer or any
other appropriate Person from contesting any such tax in appropriate
proceedings and shall not prevent the Master Servicer from withholding payment
of such tax, if permitted by law, pending the outcome of such proceedings).
The Master Servicer shall have no right of reimbursement for any amount paid
pursuant to the foregoing indemnification, except to the extent that the
amount of any tax, interest, and penalties, together with interest thereon, is
refunded to the Trust Fund.
Section 3.13. Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the
Master Servicer of a notification that payment in full will be escrowed in a
manner customary for such purposes, the Master Servicer will immediately
notify the Trustee by delivering a "Request for Release" substantially in the
form of Exhibit N. Upon receipt of the request, the Trustee shall promptly
release the related Mortgage File to the Master Servicer, and the Trustee
shall at the Master Servicer's direction execute and deliver to the Master
Servicer the request for reconveyance, deed of reconveyance, or release or
satisfaction of mortgage or such instrument releasing the lien of the Mortgage
in each case provided by the Master Servicer, together with the Mortgage Note
with written evidence of cancellation thereon. Expenses incurred in connection
with any instrument of satisfaction or deed of reconveyance shall be
chargeable to the related Mortgagor.
From time to time and as shall be appropriate for the servicing or
foreclosure of any Mortgage Loan, including for such purpose collection under
any policy of flood insurance, any fidelity bond or errors or omissions
policy, or for the purposes of effecting a partial release of any Mortgaged
Property from the lien of the Mortgage or the making of any corrections to the
Mortgage Note or the Mortgage or any of the other documents included in the
Mortgage File, the Trustee shall, upon delivery to the Trustee of a Request
for Release in the form of Exhibit M signed by a Servicing Officer, release
the Mortgage File to the Master
III-17
Servicer or its designee. Subject to the further limitations set forth below,
the Master Servicer shall cause the Mortgage File or documents so released to
be returned to the Trustee when the need therefor by the Master Servicer no
longer exists, unless the Mortgage Loan is liquidated and the proceeds thereof
are deposited in the Certificate Account, in which case the Master Servicer
shall deliver to the Trustee a Request for Release in the form of Exhibit N,
signed by a Servicing Officer.
If the Master Servicer at any time seeks to initiate a foreclosure
proceeding in respect of any Mortgaged Property as authorized by this
Agreement, the Master Servicer shall deliver to the Trustee, for signature, as
appropriate, any court pleadings, requests for trustee's sale, or other
documents necessary to effectuate such foreclosure or any legal action brought
to obtain judgment against the Mortgagor on the Mortgage Note or the Mortgage
or to obtain a deficiency judgment or to enforce any other remedies or rights
provided by the Mortgage Note or the Mortgage or otherwise available at law or
in equity.
Section 3.14. Documents, Records and Funds in Possession of the Master
Servicer to be Held for the Trustee.
The Master Servicer shall account fully to the Trustee for any funds
it receives or otherwise collects as Liquidation Proceeds or Insurance
Proceeds in respect of any Mortgage Loan. All Mortgage Files and funds
collected or held by, or under the control of, the Master Servicer in respect
of any Mortgage Loans, whether from the collection of principal and interest
payments or from Liquidation Proceeds, including any funds on deposit in the
Certificate Account, shall be held by the Master Servicer for and on behalf of
the Trustee and shall be and remain the sole and exclusive property of the
Trustee, subject to the applicable provisions of this Agreement. The Master
Servicer also agrees that it shall not create, incur or subject any Mortgage
File or any funds that are deposited in the Certificate Account, the
Collection Account, Distribution Account, or any Escrow Account, or any funds
that otherwise are or may become due or payable to the Trustee for the benefit
of the Certificateholders, to any claim, lien, security interest, judgment,
levy, writ of attachment, or other encumbrance, or assert by legal action or
otherwise any claim or right of setoff against any Mortgage File or any funds
collected on, or in connection with, a Mortgage Loan, except, however, that
the Master Servicer shall be entitled to set off against and deduct from any
such funds any amounts that are properly due and payable to the Master
Servicer under this Agreement.
Section 3.15. Servicing Compensation.
As compensation for its activities hereunder, the Master Servicer may
retain or withdraw from the Servicing Account, the Collection Account, or the
Certificate Account the Master Servicing Fee for each Mortgage Loan for the
related Distribution Date. Notwithstanding the foregoing, the aggregate Master
Servicing Fee and Servicing Fee payable to the Master Servicer shall be
reduced by the lesser of the aggregate of the Prepayment Interest Shortfalls
with respect to the Distribution Date and the aggregate Compensating Interest
for the Distribution Date.
The Master Servicer may retain or withdraw from the Servicing Account,
the Collection Account, or the Certificate Account the Servicing Fee for each
Mortgage Loan for the related Distribution Date. If the Master Servicer
directly services a Mortgage Loan, the Master Servicer may retain the
Servicing Fee for its
III-18
own account as compensation for performing services. If a Subservicer directly
services a Mortgage Loan, unless the Subservicer retains the Servicing Fee,
the Master Servicer shall remit the Servicing Fee to the related Subservicer
as compensation for performing services.
Additional master servicing compensation in the form of Excess
Proceeds, assumption fees, late payment charges (not including Prepayment
Charges) and all income net of any losses realized from Permitted Investments
shall be retained by the Master Servicer to the extent not required to be
deposited in the Certificate Account pursuant to Section 3.06. The Master
Servicer shall be required to pay all expenses incurred by it in connection
with its servicing activities hereunder (including the fees of any
Subservicer, payment of any premiums for hazard insurance, and any Primary
Insurance Policy and maintenance of the other forms of insurance coverage
required by this Agreement) and shall not be entitled to reimbursement
therefor except as specifically provided in this Agreement.
Section 3.16. Access to Certain Documentation.
The Master Servicer shall provide to the OTS and the FDIC and to
comparable regulatory authorities supervising Holders of Subordinated
Certificates and the examiners and supervisory agents of the OTS, the FDIC,
and such other authorities, access to the documentation regarding the Mortgage
Loans required by applicable regulations of the OTS and the FDIC. Access shall
be afforded without charge, but only upon reasonable prior written request and
during normal business hours at the offices designated by the Master Servicer.
Nothing in this Section 3.16 shall limit the obligation of the Master Servicer
to observe any applicable law prohibiting disclosure of information regarding
the Mortgagors and the failure of the Master Servicer to provide access as
provided in this Section 3.16 as a result of such obligation shall not
constitute a breach of this Section 3.16.
Section 3.17. Annual Statement as to Compliance.
The Master Servicer shall deliver to the Depositor and the Trustee by
120 days after the end of the Master Servicer's fiscal year, commencing with
its 2001 fiscal year, an Officer's Certificate signed by two Servicing
Officers stating, as to each signer thereof, that (i) a review of the
activities of the Master Servicer during the preceding calendar year and of
the performance of the Master Servicer under this Agreement has been made
under such officer's supervision, and (ii) to the best of such officer's
knowledge, based on the review, the Master Servicer has fulfilled all its
obligations under this Agreement throughout the year, or, if there has been a
default in the fulfillment of any obligation, specifying each default known to
the officer and the nature and status thereof. The Trustee shall forward a
copy of each compliance statement to each Rating Agency.
Section 3.18. Annual Independent Public Accountants' Servicing
Statement; Financial Statements.
By 120 days after the end of the Master Servicer's fiscal year,
commencing with its 2001 fiscal year, the Master Servicer at its expense shall
cause a nationally or regionally recognized firm of independent public
accountants (who may also render other services to the Master Servicer, the
Seller or any affiliate
III-19
thereof) which is a member of the American Institute of Certified Public
Accountants to furnish a statement to the Trustee and the Depositor to the
effect that the firm has examined certain documents and records relating to
the servicing of the Mortgage Loans under this Agreement or of mortgage loans
under pooling and servicing agreements substantially similar to this Agreement
(the statement to have attached to it a schedule of the pooling and servicing
agreements covered by it) and that, on the basis of its examination, conducted
substantially in compliance with the Audit Guide for Audits of HUD Approved
Nonsupervised Mortgagees, the Uniform Single Attestation Program for Mortgage
Bankers, or the Audit Program for Mortgages serviced for FNMA and FHLMC, such
servicing has been conducted in compliance with this Agreement except for any
significant exceptions or errors in records that, in the opinion of the firm,
the Audit Guide for Audits of HUD Approved Nonsupervised Mortgagees, the
Uniform Single Attestation Program for Mortgage Bankers, or the Audit Program
for Mortgages serviced for FNMA and FHLMC requires it to report. In rendering
the statement, the firm may rely, as to matters relating to direct servicing
of Mortgage Loans by the subservicers, upon comparable statements for
examinations conducted substantially in compliance with the Audit Guide for
Audits of HUD Approved Nonsupervised Mortgagees, the Uniform Single
Attestation Program for Mortgage Bankers, or the Audit Program for Mortgages
serviced for FNMA and FHLMC (rendered within one year of the statement) of
independent public accountants with respect to the related Subservicer. The
Master Servicer shall deliver the statement to the Trustee so that the Trustee
can provide copies of the statement to any Certificateholder on request at the
Master Servicer's expense.
Section 3.19. Errors and Omissions Insurance; Fidelity Bonds.
The Master Servicer shall obtain and maintain in force (a) policies of
insurance covering errors and omissions in the performance of its obligations
as Master Servicer hereunder and (b) a fidelity bond covering its officers,
employees, and agents. Each policy and bond shall, together, comply with the
requirements from time to time of FNMA or FHLMC for persons performing
servicing for mortgage loans purchased by FNMA or FHLMC. If any policy or bond
ceases to be in effect, the Master Servicer shall obtain a comparable
replacement policy or bond from an insurer or issuer meeting the above
requirements as of the date of the replacement.
III-20
ARTICLE FOUR
DISTRIBUTIONS AND ADVANCES BY THE MASTER SERVICER
Section 4.01. Advances.
The Master Servicer shall determine by each Master Servicer Advance
Date whether it is required to make an Advance pursuant to the definition of
Advance. If the Master Servicer determines it is required to make an Advance,
it shall, by the Master Servicer Advance Date, either (i) deposit the Advance
into the Certificate Account or (ii) make an appropriate entry in its records
relating to the Certificate Account that any Amount Held for Future
Distribution has been used by the Master Servicer in discharge of its
obligation to make the Advance. The Master Servicer shall replace any funds so
applied by making a deposit in the Certificate Account no later than the close
of business on the next Master Servicer Advance Date. The Master Servicer
shall be reimbursed from the Certificate Account for all Advances of its own
funds made pursuant to this Section 4.01 as provided in Section 3.09. The
obligation to make Advances with respect to any Mortgage Loan shall continue
if the Mortgage Loan has been foreclosed or otherwise terminated and the
related Mortgaged Property has not been liquidated. The Master Servicer shall
inform the Trustee of the amount of the Advance to be made on each Master
Servicer Advance Date no later than the second Business Day before the related
Distribution Date.
The Master Servicer shall deliver to the Trustee on the related Master
Servicer Advance Date an Officer's Certificate of a Servicing Officer
indicating the amount of any proposed Advance determined by the Master
Servicer to be a Nonrecoverable Advance.
Section 4.02. Priorities of Distribution.
(I) On each Distribution Date, the Trustee shall make the
disbursements and transfers from amounts then on deposit in the Distribution
Account in the following order of priority for each Certificate Group and, in
each case, to the extent of the then-remaining related Available Funds:
(i) to the holders of each Class of Certificates in the
following order of priority, in each case, to the extent of the then-remaining
related Interest Remittance Amount:
1. to the holders of the related Class A-IO Certificates, the
related Monthly Interest Distributable Amount allocable to
such certificates;
2. to the holders of the related Class A-IO Certificates, the
related Unpaid Interest Shortfall Amount, if any;
3. concurrently, to the holders of each class of related Class A
Certificates, the related Monthly Interest Distributable
Amount for each such class for such Distribution Date, on a
pro rata basis based on the entitlement of each such class
pursuant to this clause (3);
4. concurrently, holders of each class of related Class A
Certificates, the related Unpaid Interest Shortfall Amount
other than any related Net Rate Carryover Shortfall Amounts,
if any, for each
IV-1
such class for each such Distribution Date, on a pro rata
basis based on the entitlement of each such class pursuant to
this clause (4);
5. to the holders of the related Class M-1 Certificates, the
related Monthly Interest Distributable Amount;
6. to the holders of the related Class M-2 Certificates, the
related Monthly Interest Distributable Amount;
7. to the holders of the related Class B Certificates, the
related Monthly Interest Distributable Amount; and
8. as part of the Net Monthly Excess Cashflow pursuant to Section
4.02(I)(iii) below.
(ii) A. with respect to each Certificate Group on each
Distribution Date (a) before the related Stepdown Date or (b) with respect to
which a Trigger Event is in effect, to the holders of the related Classes of
Offered Certificates then entitled to distributions of principal as set forth
below, to the extent of the related Principal Distribution Amount, in the
following order of priority:
(x) (1) in the case of the Group 1 Certificates, sequentially
to the Class AR, Class 1-A-1, Class 1-A-2, Class 1-A-3, Class 1-A-4
and Class 1-A-5 Certificates, in that order, until their respective
Class Certificate Balances are reduced to zero;
(2) in the case of the Group 2 Certificates,
sequentially, to the Class 2-A-1, Class 2-A-2, Class
2-A-3, Class 2-A-4 and Class 2-A-5 Certificates, in that
order, until their respective Class Certificate Balances
are reduced to zero;
(y) for each Certificate Group, sequentially, to the related
Class M-1, Class M-2, and Class B Certificates, in that order, until
their respective Class Certificate Balances are reduced to zero;
B. on each Distribution Date (a) on or after the related Stepdown Date
and (b) as long as a Trigger Event is not in effect, to the holders of the
related Classes of Offered Certificates then entitled to distributions of
principal an amount equal to, in the aggregate, the related Principal
Distribution Amount in the following amounts and order of priority:
(a) the lesser of (x) the Principal Distribution Amount and (y)
the Class A Principal Distribution Amount, sequentially to the related
Class A-1, Class A-2, Class A-3, Class A-4, and Class A-5
Certificates, in that order, until their respective Class Certificate
Balances are reduced to zero;
(b) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A
Certificateholders in clause (ii) B. (a) above and (y) the Class M-1
Principal Distribution Amount to the related Class M-1
Certificateholders, until their Class Certificate Balance has been
reduced to zero;
IV-2
(c) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A
Certificateholders in clause (ii) B. (a) above and to the Class M-1
Certificates in clause (ii) B. (b) above and (y) the Class M-2
Principal Distribution Amount to the related Class M-2
Certificateholders, until their Class Certificate Balance has been
reduced to zero;
(d) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A
Certificateholders in clause (ii) B. (a) above, to the Class M-1
Certificates in clause (ii) B. (b) above and to the Class M-2
Certificates in clause (ii) B. (c) above and (y) the Class B Principal
Distribution Amount to the related Class B Certificateholders, until
their Class Certificate Balance has been reduced to zero;
(iii) any related Net Monthly Excess Cashflow shall be distributed in
the following order of priority with respect to the Certificates in the
related Certificate Group:
1. to the holders of the Class or Classes of Certificates in that
Certificate Group then entitled to receive distributions in
respect of principal, in an amount equal to the related Extra
Principal Distribution Amount, payable to such holders as part
of the related Principal Distribution Amount as provided in
Section 4.02(I)(ii) above;
2. to the holders of the related Class M-1 Certificates, in an
amount equal to the related Unpaid Interest Shortfall Amount
allocable to such class;
3. to the holders of the related Class M-1 Certificates, in an
amount equal to the related Unpaid Realized Loss Amount for
the Class M-1 Certificates;
4. to the holders of the related Class M-2 Certificates, in an
amount equal to the related Unpaid Interest Shortfall Amount
allocable to such class;
5. to the holders of the related Class M-2 Certificates, in an
amount equal to the related Unpaid Realized Loss Amount for
the Class M-2 Certificates;
6. to the holders of the related Class B Certificates, in an
amount equal to the related Unpaid Interest Shortfall Amount
allocable to such class;
7. to the holders of the related Class B Certificates, in an
amount equal to the related Unpaid Realized Loss Amount for
the Class B Certificates;
8. to the Subordinated Certificates in the other Certificate
Group, any Unpaid Interest Shortfall Amounts or Unpaid
Realized Loss Amounts remaining unpaid on that Distribution
Date after application of the Net Monthly Excess Cashflow for
that Certificate Group on that Distribution Date, but only to
the extent of any Overcollateralization Release Amount for
that Distribution Date;
9. to the related Carryover Reserve Fund Account, the Required
Carryover Reserve Fund Account Deposit;
10. to the related Class OC Certificate, the related Class OC
Distributable Amount for such Distribution Date, together with
any amounts withdrawn from the Carryover Reserve Fund Account
for distribution to such Class OC Certificate pursuant to
Section 3.09; and
IV-3
11. to the holders of the Residual Certificates, any remaining
amounts; provided that if such Distribution Date is the
Distribution Date immediately following the expiration of the
latest prepayment penalty term or any Distribution Date
thereafter, then any such remaining amounts will be
distributed first, to the holders of the Class P Certificates,
until the Class Certificate Balance thereof has been reduced
to zero; and second, to the holders of the Residual
Certificates.
(II) On each Distribution Date, all amounts representing Prepayment
Charges from the Mortgage Loans in each Loan Group received during the related
Prepayment Period will be distributed to the holders of the Class P
Certificates.
Section 4.03. Monthly Statements to Certificateholders.
(a) Not later than each Distribution Date, the Trustee shall prepare
and make available on its website at:
▇▇▇▇://▇▇▇--▇▇▇▇.▇▇▇.▇▇▇▇▇▇▇▇-▇▇▇▇.▇▇▇/▇▇▇▇ for each Certificateholder, the
Rating Agencies, the Master Servicer, and the Depositor a statement for the
related distribution of:
(i) the amount of the distribution allocable to principal,
separately identifying the aggregate amount of any Principal
Prepayments and Liquidation Proceeds included therein;
(ii) the amount of the distribution allocable to interest, any
Unpaid Interest Shortfall Amounts included in the distribution and any
remaining Unpaid Interest Shortfall Amounts after giving effect to the
distribution;
(iii) if the distribution to the Holders of any Class of
Certificates is less than the full amount that would be distributable
to them if sufficient funds were available, the amount of the
shortfall and the allocation of the shortfall between principal and
interest;
(iv) the Class Certificate Balance or Notional Amount of each
Class of Certificates after giving effect to the distribution of
principal on the Distribution Date;
(v) the Pool Stated Principal Balance for the following
Distribution Date;
(vi) the amount of the Master Servicing Fees and Servicing Fees
paid to or retained by the Master Servicer or Subservicer (with
respect to the Subservicers, in the aggregate) with respect to the
Distribution Date;
(vii) the Pass-Through Rate for each Class of Certificates
with respect to the Distribution Date;
(viii) the amount of Advances included in the distribution on
the Distribution Date and the aggregate amount of Advances outstanding
as of the close of business on the Distribution Date;
(ix) the number and aggregate principal amounts of Mortgage
Loans in each Loan Group (A) delinquent (exclusive of Mortgage Loans
in foreclosure) (1) 1 to 30 days, (2) 31 to 60 days, (3) 61 to 90
days, and (4) 91 or more days and (B) in foreclosure and delinquent
(1) 1 to 30 days, (2) 31 to 60 days, (3)
IV-4
61 to 90 days, and (4) 91 or more days, as of the close of business on
the last day of the calendar month preceding the Distribution Date;
(x) for each of the preceding 12 calendar months, or all
calendar months since the related Cut-off Date, whichever is less, the
aggregate dollar amount of the Scheduled Payments
(A) due on all Outstanding Mortgage Loans on each of
the Due Dates in each such month and
(B) delinquent 60 days or more on each of the Due
Dates in each such month;
(xi) with respect to any Mortgage Loan that became an REO
Property during the preceding calendar month, the loan number and
Stated Principal Balance of the Mortgage Loan as of the close of
business on the Determination Date preceding the Distribution Date and
the date of acquisition thereof;
(xii) the total number and principal balance of any REO
Properties (and market value, if available) as of the close of
business on the Determination Date preceding the Distribution Date;
(xiii) whether a Trigger Event has occurred and is continuing
(including the calculation of thereof and the aggregate outstanding
balance of all 60+ Day Delinquent Loans);
(xiv) the amount on deposit in the Carryover Reserve Fund
Accounts (after giving effect to distributions on the Distribution
Date);
(xv) the amount received under the Yield Maintenance
Agreements;
(xvi) the aggregate amount of Realized Losses incurred during
the preceding calendar month and aggregate Realized Losses through the
Distribution Date;
(xvii) the amount of any Net Monthly Excess Cash Flow on the
Distribution Date and the allocation thereof to the Certificateholders
with respect to Allocated Realized Losses and Unpaid Interest
Shortfall Amounts;
(xviii) with respect to the second Distribution Date, the number
and aggregate balance of any Delay Delivery Mortgage Loans not
delivered within the time periods specified in the definition of Delay
Delivery Mortgage Loans; and
(xix) with respect to each Loan Group, the Overcollateralized
Amount.
(xx) Prepayment Charges collected, waived and paid by Master
Servicer.
(b) The Trustee's responsibility for disbursing the above information
to the Certificateholders is limited to the availability, timeliness and
accuracy of the information derived from the Master Servicer.
IV-5
By each Determination Date the Master Servicer shall provide to the
Trustee in electronic form the information needed to determine the
distributions to be made pursuant to Section 4.02 and any other information on
which the Master Servicer and the Trustee mutually agree.
(c) Within a reasonable period of time after the end of each calendar
year, the Trustee shall cause to be furnished to each Person who at any time
during the calendar year was a Certificateholder, a statement containing the
information set forth in clauses (a)(i), (a)(ii), and (a)(vii) of this Section
4.03 aggregated for such calendar year or applicable portion thereof during
which such Person was a Certificateholder. Such obligation of the Trustee
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Trustee pursuant to any
requirements of the Code as from time to time in effect.
Section 4.04. Yield Maintenance Agreements
(a) On or prior to the Closing Date, the Trustee, on behalf of the
Trust, will enter into the Yield Maintenance Agreements for the benefit of the
Holders of the LIBOR Certificates. The Yield Maintenance Agreements will be
assets of the Trust Fund but will not be assets of any REMIC created
hereunder. The Trustee shall deposit any amounts received with respect to the
Yield Maintenance Agreements into the related Carryover Reserve Fund Account.
(b) The Trustee will prepare and deliver any notices required to be
delivered to Bear ▇▇▇▇▇▇▇ Financial Products, Inc. under the Yield Maintenance
Agreement.
(c) The Trustee shall terminate Bear ▇▇▇▇▇▇▇ Financial Products, Inc.
upon the occurrence of an event of default under a Yield Maintenance Agreement
of which a Responsible Officer of the Trustee has actual knowledge. Upon such
a termination, Bear ▇▇▇▇▇▇▇ Financial Products, Inc. may be required to pay an
amount to the Trustee in respect of market quotations for the replacement cost
of the related Yield Maintenance Agreement.
Section 4.05. [Reserved]
Section 4.06. [Reserved]
Section 4.07. Determination of Pass-Through Rates for COFI
Certificates.
The Pass-Through Rate for each Class of COFI Certificates for each
Interest Accrual Period after the initial Interest Accrual Period shall be
determined by the Trustee as provided below on the basis of the Index and the
applicable formulae appearing in footnotes corresponding to the COFI
Certificates in (1) to the table relating to the Certificates in the
Preliminary Statement.
Except as provided below, with respect to each Interest Accrual Period
following the initial Interest Accrual Period, the Trustee shall not later
than two Business Days following the publication of the applicable Index
determine the Pass-Through Rate at which interest shall accrue in respect of
the COFI Certificates during the related Interest Accrual Period.
IV-6
Except as provided below, the Index to be used in determining the
respective Pass-Through Rates for the COFI Certificates for a particular
Interest Accrual Period shall be COFI for the second calendar month preceding
such Interest Accrual Period. If at the Outside Reference Date for any
Interest Accrual Period, COFI for the second calendar month preceding such
Interest Accrual Period has not been published, the Trustee shall use COFI for
the third calendar month preceding such Interest Accrual Period. If COFI for
neither the second nor third calendar months preceding any Interest Accrual
Period has been published on or before the related Outside Reference Date, the
Index for such Interest Accrual Period and for all subsequent Interest Accrual
Periods shall be the National Cost of Funds Index for the third calendar month
preceding such Interest Accrual Period (or the fourth preceding calendar month
if such National Cost of Funds Index for the third preceding calendar month
has not been published by such Outside Reference Date). In the event that the
National Cost of Funds Index for neither the third nor fourth calendar months
preceding an Interest Accrual Period has been published on or before the
related Outside Reference Date, then for such Interest Accrual Period and for
each succeeding Interest Accrual Period, the Index shall be LIBOR, determined
in the manner set forth below.
On each Interest Determination Date so long as the COFI Certificates
are outstanding and the applicable Index therefor is LIBOR, the Trustee shall
either (i) request each Reference Bank to inform the Trustee of the quotation
offered by its principal London office for making one-month United States
dollar deposits in leading banks in the London interbank market, as of 11:00
a.m. (London time) on such Interest Determination Date or (ii) in lieu of
making any such request, rely on such Reference Bank quotations that appear at
such time on the Reuters Screen LIBO Page (as defined in the International
Swap Dealers Association Inc. Code of Standard Wording, Assumptions and
Provisions for Swaps, 1986 Edition), to the extent available.
With respect to any Interest Accrual Period for which the applicable
Index is LIBOR, LIBOR for such Interest Accrual Period will be established by
the Trustee on the related Interest Determination Date as follows:
(i) If on any Interest Determination Date two or more Reference Banks
provide such offered quotations, LIBOR for the next Interest Accrual Period
shall be the arithmetic mean of such offered quotations (rounding such
arithmetic mean upwards if necessary to the nearest whole multiple of 1/32%).
(ii) If on any Interest Determination Date only one or none of the
Reference Banks provides such offered quotations, LIBOR for the next
Interest Accrual Period shall be whichever is the higher of (i) LIBOR
as determined on the previous Interest Determination Date or (ii) the
Reserve Interest Rate. The "Reserve Interest Rate" shall be the rate
per annum which the Trustee determines to be either (i) the arithmetic
mean (rounded upwards if necessary to the nearest whole multiple of
1/32%) of the one-month United States dollar lending rates that New
York City banks selected by the Trustee are quoting, on the relevant
Interest Determination Date, to the principal London offices of at
least two of the Reference Banks to which such quotations are, in the
opinion of the Trustee, being so made, or (ii) in the event that the
Trustee can determine no such arithmetic mean, the
IV-7
lowest one-month United States dollar lending rate which New York City
banks selected by the Trustee are quoting on such Interest
Determination Date to leading European banks.
From such time as the applicable Index becomes LIBOR until all of the
COFI Certificates are paid in full, the Trustee will at all times retain at
least four Reference Banks for the purposes of determining LIBOR with respect
to each Interest Determination Date. The Master Servicer initially shall
designate the Reference Banks. Each "Reference Bank" shall be a leading bank
engaged in transactions in Eurodollar deposits in the international
Eurocurrency market, shall not control, be controlled by, or be under common
control with, the Trustee and shall have an established place of business in
London. If any such Reference Bank should be unwilling or unable to act as
such or if the Master Servicer should terminate its appointment as Reference
Bank, the Trustee shall promptly appoint or cause to be appointed another
Reference Bank. The Trustee shall have no liability or responsibility to any
Person for (i) the selection of any Reference Bank for purposes of determining
LIBOR or (ii) any inability to retain at least four Reference Banks which is
caused by circumstances beyond its reasonable control.
In determining LIBOR and any Pass-Through Rate for the COFI
Certificates or any Reserve Interest Rate, the Trustee may conclusively rely
and shall be protected in relying upon the offered quotations (whether
written, oral or on the Reuters Screen) from the Reference Banks or the New
York City banks as to LIBOR or the Reserve Interest Rate, as appropriate, in
effect from time to time. The Trustee shall not have any liability or
responsibility to any Person for (i) the Trustee's selection of New York City
banks for purposes of determining any Reserve Interest Rate or (ii) its
inability, following a good-faith reasonable effort, to obtain such quotations
from the Reference Banks or the New York City banks or to determine such
arithmetic mean, all as provided for in this Section 4.07.
The establishment of LIBOR and each Pass-Through Rate for the COFI
Certificates by the Trustee shall (in the absence of manifest error) be final,
conclusive and binding upon each Holder of a Certificate and the Trustee.
Section 4.08. Determination of Pass-Through Rates for LIBOR
Certificates.
On each LIBOR Determination Date so long as the LIBOR Certificates are
outstanding, the Trustee will determine LIBOR on the basis of the British
Bankers' Association ("BBA") "Interest Settlement Rate" for one-month deposits
in U.S. dollars as found on Telerate page 3750 as of 11:00 a.m. London time on
each LIBOR Determination Date.
(a) If LIBOR cannot be determined as provided in paragraph (A) of this
Section 4.08, the Trustee shall either (i) request each Reference Bank to
inform the Trustee of the quotation offered by its principal London office for
making one-month United States dollar deposits in leading banks in the London
interbank market, as of 11:00 a.m. (London time) on such LIBOR Determination
Date or (ii) in lieu of making any such request, rely on such Reference Bank
quotations that appear at such time on the Reuters Screen LIBO Page (as
defined in the International Swap Dealers Association Inc. Code of Standard
Wording, Assumptions and Provisions for Swaps, 1986 Edition), to the extent
available.
IV-8
(b) LIBOR for the next Accrual Period will be established by the
Trustee on each LIBOR Determination Date as follows:
(i) If on any LIBOR Determination Date two or more Reference
Banks provide such offered quotations, LIBOR for the next Accrual
Period shall be the arithmetic mean of such offered quotations
(rounding such arithmetic mean upwards if necessary to the nearest
whole multiple of 1/32%).
(ii) If on any LIBOR Determination Date only one or none of the
Reference Banks provides such offered quotations, LIBOR for the next
Accrual Period shall be whichever is the higher of (i) LIBOR as
determined on the previous LIBOR Determination Date or (ii) the
Reserve Interest Rate. The "Reserve Interest Rate" shall be the rate
per annum which the Trustee determines to be either (i) the arithmetic
mean (rounded upwards if necessary to the nearest whole multiple of
1/32%) of the one-month United States dollar lending rates that New
York City banks selected by the Trustee are quoting, on the relevant
LIBOR Determination Date, to the principal London offices of at least
two of the Reference Banks to which such quotations are, in the
opinion of the Trustee, being so made, or (ii) in the event that the
Trustee can determine no such arithmetic mean, the lowest one-month
United States dollar lending rate which New York City banks selected
by the Trustee are quoting on such LIBOR Determination Date to leading
European banks.
(iii) If on any LIBOR Determination Date the Trustee is
required but is unable to determine the Reserve Interest Rate in the
manner provided in paragraph (b) above, LIBOR shall be LIBOR as
determined on the preceding LIBOR Determination Date, or, in the case
of the first LIBOR Determination Date, the Initial LIBOR Rate.
(c) Until all of the LIBOR Certificates are paid in full, the Trustee
will at all times retain at least four Reference Banks for the purpose of
determining LIBOR with respect to each LIBOR Determination Date. The Master
Servicer initially shall designate the Reference Banks. Each "Reference Bank"
shall be a leading bank engaged in transactions in Eurodollar deposits in the
international Eurocurrency market, shall not control, be controlled by, or be
under common control with, the Trustee and shall have an established place of
business in London. If any such Reference Bank should be unwilling or unable
to act as such or if the Master Servicer should terminate its appointment as
Reference Bank, the Trustee shall promptly appoint or cause to be appointed
another Reference Bank. The Trustee shall have no liability or responsibility
to any Person for (i) the selection of any Reference Bank for purposes of
determining LIBOR or (ii) any inability to retain at least four Reference
Banks which is caused by circumstances beyond its reasonable control.
(d) The Pass-Through Rate for each Class of LIBOR Certificates for each
Accrual Period shall be determined by the Trustee on each LIBOR Determination
Date so long as the LIBOR Certificates are outstanding on the basis of LIBOR
and the respective formulae appearing in footnotes corresponding to the LIBOR
Certificates in the table relating to the Certificates in the Preliminary
Statement.
(e) In determining LIBOR, any Pass-Through Rate for the LIBOR
Certificates, any Interest Settlement Rate, or any Reserve Interest Rate, the
Trustee may conclusively rely and shall be protected in relying upon the
offered quotations (whether written, oral or on the Dow ▇▇▇▇▇ Markets) from
the BBA designated banks, the Reference Banks or the New York City banks as to
LIBOR, the Interest Settlement Rate or the Reserve Interest Rate, as
appropriate, in effect from time to time. The Trustee shall not have any
liability or responsibility to any Person for (i) the Trustee's selection of
New York City banks for purposes
IV-9
of determining any Reserve Interest Rate or (ii) its inability, following a
good-faith reasonable effort, to obtain such quotations from, the BBA
designated banks, the Reference Banks or the New York City banks or to
determine such arithmetic mean, all as provided for in this Section 4.08.
(f) The establishment of LIBOR and each Pass-Through Rate for the LIBOR
Certificates by the Trustee shall (in the absence of manifest error) be final,
conclusive and binding upon each Holder of a Certificate and the Trustee.
IV-10
ARTICLE FIVE
THE CERTIFICATES
Section 5.01. The Certificates.
The Certificates shall be substantially in the forms attached hereto
as exhibits. The Certificates shall be issuable in registered form, in the
minimum denominations, integral multiples of $1,000 in excess thereof (except
that one Certificate in each Class may be issued in a different amount which
must exceed the applicable minimum denomination) and aggregate denominations
per Class set forth in the Preliminary Statement.
Subject to Section 9.02 respecting the final distribution on the
Certificates, on each Distribution Date the Trustee shall make distributions
to each Certificateholder of record on the preceding Record Date either (x) by
wire transfer in immediately available funds to the account of such holder at
a bank or other entity having appropriate facilities therefor, if (i) such
Holder has so notified the Trustee at least five Business Days before the
related Record Date and (ii) such Holder shall hold (A) a Notional Amount
Certificate, (B) 100% of the Class Certificate Balance of any Class of
Certificates or (C) Certificates of any Class with aggregate principal
Denominations of not less than $1,000,000 or (y) by check mailed by first
class mail to such Certificateholder at the address of such holder appearing
in the Certificate Register.
The Trustee shall execute the Certificates by the manual or facsimile
signature of an authorized officer. Certificates bearing the manual or
facsimile signatures of individuals who were, at the time such signatures were
affixed, authorized to sign on behalf of the Trustee shall bind the Trustee,
notwithstanding that such individuals or any of them have ceased to be so
authorized before the countersignature and delivery of any such Certificates
or did not hold such offices at the date of such Certificate. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, unless countersigned by the Trustee by manual signature, and such
countersignature upon any Certificate shall be conclusive evidence, and the
only evidence, that such Certificate has been duly executed and delivered
hereunder. All Certificates shall be dated the date of their countersignature.
On the Closing Date, the Trustee shall countersign the Certificates to be
issued at the direction of the Depositor, or any affiliate thereof.
The Depositor shall provide the Trustee, on a continuous basis with an
adequate inventory of Certificates to facilitate transfers.
Section 5.02. Certificate Register; Registration of Transfer and
Exchange of Certificates.
(a) The Trustee shall maintain, in accordance with Section 5.06, a
Certificate Register for the Trust Fund in which, subject to subsections (b)
and (c) below and to such reasonable regulations as it may prescribe, the
Trustee shall provide for the registration of Certificates and of transfers
and exchanges of Certificates as herein provided. Upon surrender for
registration of transfer of any Certificate, the Trustee shall execute and
deliver, in the name of the designated transferee or transferees, one or more
new Certificates of the same Class and aggregate Percentage Interest.
V-1
At the option of a Certificateholder, Certificates may be exchanged
for other Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest upon surrender of the
Certificates to be exchanged at the office or agency of the Trustee. Whenever
any Certificates are so surrendered for exchange, the Trustee shall execute,
authenticate, and deliver the Certificates that the Certificateholder making
the exchange is entitled to receive. A written instrument of transfer in form
satisfactory to the Trustee duly executed by the holder of a Certificate or
his attorney duly authorized in writing shall accompany every Certificate
presented or surrendered for registration of transfer or exchange.
No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or exchange
shall be cancelled and subsequently destroyed by the Trustee in accordance
with the Trustee's customary procedures.
(b) No transfer of a Private Certificate shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under the Securities Act and such state securities
laws. If a transfer is to be made in reliance on an exemption from the
Securities Act and such state securities laws, to assure compliance with the
Securities Act and such state securities laws, the Certificateholder desiring
to effect such transfer and such Certificateholder's prospective transferee
shall each certify to the Trustee in writing the facts surrounding the
transfer in substantially the form set forth in Exhibit J (the "Transferor
Certificate") and deliver to the Trustee either (i) a letter in substantially
the form of either Exhibit K (the "Investment Letter") or Exhibit L (the "Rule
144A Letter") or (ii) at the expense of the transferor, an Opinion of Counsel
that the transfer may be made without registration under the Securities Act.
The Depositor shall provide to any Holder of a Private Certificate and any
prospective transferee designated by that Holder, information regarding the
related Certificates and the Mortgage Loans and any other information
necessary to satisfy the condition to eligibility in Rule 144A(d)(4) for
transfer of the Certificate without registration thereof under the Securities
Act pursuant to the registration exemption provided by Rule 144A. The Trustee
and the Master Servicer shall cooperate with the Depositor in providing the
Rule 144A information referenced in the preceding sentence, including
providing to the Depositor such information regarding the Certificates, the
Mortgage Loans, and other matters regarding the Trust Fund as the Depositor
reasonably requests to meet its obligation under the preceding sentence. Each
Holder of a Private Certificate desiring to effect a transfer shall, and does
hereby agree to, indemnify the Trustee, the Depositor, the Seller, and the
Master Servicer against any liability that may result if the transfer is not
so exempt or is not made in accordance with such federal and state laws.
No transfer of an ERISA-Restricted Certificate shall be made unless
the Trustee shall have received either (i) a representation from the
transferee of such Certificate acceptable to and in form and substance
satisfactory to the Trustee (if the Certificate is a Private Certificate or a
Residual Certificate, the requirement is satisfied only by the Trustee's
receipt of a representation letter from the transferee substantially in the
form of Exhibit K or Exhibit L), to the effect that the transferee is not an
employee benefit plan or
V-2
arrangement subject to Section 406 of ERISA or a plan subject to Section 4975
of the Code, nor a person acting on behalf of any such plan or arrangement nor
using the assets of any such plan or arrangement to effect the transfer, or
(ii) if the ERISA-Restricted Certificate is either a Private Certificate that
has been the subject of an ERISA-Qualifying Underwriting or a Residual
Certificate, if the purchaser is an insurance company, a representation that
the purchaser is an insurance company that is purchasing such Certificates
with funds contained in an "insurance company general account" (as such term
is defined in Section V(e) of Prohibited Transaction Class Exemption 95-60
("PTCE 95-60") and that the purchase and holding of such Certificates are
covered under Sections I and III of PTCE 95-60, or (iii) in the case of any
such ERISA-Restricted Certificate presented for registration in the name of an
employee benefit plan subject to ERISA, or a plan or arrangement subject to
Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee of any such plan or any other person acting on
behalf of any such plan or arrangement or using such plan's or arrangement's
assets, an Opinion of Counsel satisfactory to the Trustee and the Master
Servicer, which Opinion of Counsel shall not be an expense of the Trustee, the
Master Servicer or the Trust Fund, addressed to the Trustee, to the effect
that the purchase or holding of such ERISA-Restricted Certificate will not
result in a non-exempt prohibited transaction under ERISA or the Code and will
not subject the Trustee or the Master Servicer to any obligation in addition
to those expressly undertaken in this Agreement or to any liability. For
purposes of the preceding sentence, with respect to an ERISA-Restricted
Certificate that is not a Private Certificate or a Residual Certificate, if
the representation letter referred to in the preceding sentence is not
furnished, the representation shall be deemed to have been made to the Trustee
by the transferee's (including an initial acquirer's) acceptance of the
ERISA-Restricted Certificates. If the representation is violated, or any
attempt is made to transfer to a plan or arrangement subject to Section 406 of
ERISA or a plan subject to Section 4975 of the Code, or a person acting on
behalf of any such plan or arrangement or using the assets of any such plan or
arrangement, without the Opinion of Counsel described above, the attempted
transfer or acquisition shall be void.
To the extent permitted under applicable law (including ERISA), the
Trustee shall be under no liability to any Person for any registration of
transfer of any ERISA-Restricted Certificate that is in fact not permitted by
this Section 5.02(b) or for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such Holder under
this Agreement so long as the transfer was registered by the Trustee in
accordance with the foregoing requirements.
(c) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall
promptly notify the Trustee of any change or impending change in its
status as a Permitted Transferee.
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the
Trustee shall not register the Transfer of any Residual Certificate
V-3
unless, in addition to the certificates required to be delivered to
the Trustee under subparagraph (b) above, the Trustee shall have been
furnished with an affidavit (a "Transfer Affidavit") of the initial
owner or the proposed transferee in the form of Exhibit I.
(iii) Each Person holding or acquiring any Ownership Interest
in a Residual Certificate shall agree (A) to obtain a Transfer
Affidavit from any other Person to whom such Person attempts to
Transfer its Ownership Interest in a Residual Certificate, (B) to
obtain a Transfer Affidavit from any Person for whom such Person is
acting as nominee, trustee or agent in connection with any Transfer of
a Residual Certificate and (C) not to Transfer its Ownership Interest
in a Residual Certificate or to cause the Transfer of an Ownership
Interest in a Residual Certificate to any other Person if it has
actual knowledge that such Person is not a Permitted Transferee.
(iv) Any attempted or purported Transfer of any Ownership
Interest in a Residual Certificate in violation of this Section
5.02(c) shall be absolutely null and void and shall vest no rights in
the purported Transferee. If any purported transferee shall become a
Holder of a Residual Certificate in violation of this Section 5.02(c),
then the last preceding Permitted Transferee shall be restored to all
rights as Holder thereof retroactive to the date of registration of
Transfer of such Residual Certificate. The Trustee shall be under no
liability to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by Section 5.02(b) and this
Section 5.02(c) or for making any payments due on such Certificate to
the Holder thereof or taking any other action with respect to such
Holder under this Agreement so long as the Transfer was registered
after receipt of the related Transfer Affidavit, Transferor
Certificate and either the Rule 144A Letter or the Investment Letter.
The Trustee shall be entitled but not obligated to recover from any
Holder of a Residual Certificate that was in fact not a Permitted
Transferee at the time it became a Holder or, at such subsequent time
as it became other than a Permitted Transferee, all payments made on
such Residual Certificate at and after either such time. Any such
payments so recovered by the Trustee shall be paid and delivered by
the Trustee to the last preceding Permitted Transferee of such
Certificate.
(v) The Depositor shall use its best efforts to make available,
upon receipt of written request from the Trustee, all information
necessary to compute any tax imposed under Section 860E(e) of the Code
as a result of a Transfer of an Ownership Interest in a Residual
Certificate to any Holder who is not a Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set forth in
this Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Trustee of an Opinion of Counsel, which
Opinion of Counsel shall not be an expense of the Trust Fund, the Trustee, the
Seller or the Master Servicer, to the effect that the elimination of such
restrictions will not cause the Trust Fund hereunder to fail to qualify as a
REMIC at any time that the Certificates are outstanding or result in the
imposition of any tax on the Trust Fund, a Certificateholder or another
Person. Each Person holding or acquiring any Ownership Interest in a Residual
Certificate hereby consents to any amendment of this Agreement which, based on
an Opinion of Counsel
V-4
furnished to the Trustee, is reasonably necessary (a) to ensure that the
record ownership of, or any beneficial interest in, a Residual Certificate is
not transferred, directly or indirectly, to a Person that is not a Permitted
Transferee and (b) to provide for a means to compel the Transfer of a Residual
Certificate which is held by a Person that is not a Permitted Transferee to a
Holder that is a Permitted Transferee.
(d) The preparation and delivery of all certificates and opinions
referred to above in this Section 5.02 in connection with transfer shall be at
the expense of the parties to such transfers.
(e) Except as provided below, the Book-Entry Certificates shall at all
times remain registered in the name of the Depository or its nominee and at
all times: (i) registration of the Certificates may not be transferred by the
Trustee except to another Depository; (ii) the Depository shall maintain
book-entry records with respect to the Certificate Owners and with respect to
ownership and transfers of such Book-Entry Certificates; (iii) ownership and
transfers of registration of the Book-Entry Certificates on the books of the
Depository shall be governed by applicable rules established by the
Depository; (iv) the Depository may collect its usual and customary fees,
charges and expenses from its Depository Participants; (v) the Trustee shall
deal with the Depository, Depository Participants and Indirect Participants as
representatives of the Certificate Owners of the Book-Entry Certificates for
purposes of exercising the rights of holders under this Agreement, and
requests and directions for and votes of such representatives shall not be
deemed to be inconsistent if they are made with respect to different
Certificate Owners; and (vi) the Trustee may rely and shall be fully protected
in relying upon information furnished by the Depository with respect to its
Depository Participants and furnished by the Depository Participants with
respect to Indirect Participants and persons shown on the books of such
Indirect Participants as direct or indirect Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall
be made in accordance with the procedures established by the Depository
Participant or brokerage firm representing the Certificate Owner. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
If (x)
(i) the Depository or the Depositor advises the Trustee in
writing that the Depository is no longer willing or able to properly
discharge its responsibilities as Depository, and
(ii) the Trustee or the Depositor is unable to locate a
qualified successor,
(y) the Depositor at its option advises the Trustee in writing that it
elects to terminate the book-entry system through the Depository or
(z) after the occurrence of an Event of Default,
Certificate Owners representing at least 51% of the Certificate Balance of the
Book-Entry Certificates together advise the Trustee and the Depository through
the Depository Participants in writing that the continuation of a book-entry
system through the Depository is no longer in the best interests of the
V-5
Certificate Owners, the Trustee shall notify all Certificate Owners, through
the Depository, of the occurrence of any such event and of the availability of
definitive, fully-registered Certificates (the "Definitive Certificates") to
Certificate Owners requesting the same. Upon surrender to the Trustee of the
related Class of Certificates by the Depository, accompanied by the
instructions from the Depository for registration, the Trustee shall issue the
Definitive Certificates. Neither the Master Servicer, the Depositor nor the
Trustee shall be liable for any delay in delivery of such instruction and each
may conclusively rely on, and shall be protected in relying on, such
instructions. The Master Servicer shall provide the Trustee with an adequate
inventory of certificates to facilitate the issuance and transfer of
Definitive Certificates. Upon the issuance of Definitive Certificates all
references herein to obligations imposed upon or to be performed by the
Depository shall be deemed to be imposed upon and performed by the Trustee, to
the extent applicable with respect to such Definitive Certificates and the
Trustee shall recognize the Holders of the Definitive Certificates as
Certificateholders hereunder; provided that the Trustee shall not by virtue of
its assumption of such obligations become liable to any party for any act or
failure to act of the Depository.
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.
If
(a) any mutilated Certificate is surrendered to the Trustee, or
(b) the Trustee receives evidence to its satisfaction of the
destruction, loss, or theft of any Certificate and the Master Servicer and the
Trustee receive the security or indemnity required by them to hold each of
them harmless,
then, in the absence of notice to the Trustee that the Certificate has been
acquired by a Protected Purchaser, and if the requirements of Section 8-406 of
the UCC are met and subject to Section 8-405 of the UCC, the Trustee shall
execute, countersign, and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost, or stolen Certificate, a new Certificate of like
Class, tenor, and Percentage Interest. In connection with the issuance of any
new Certificate under this Section 5.03, the Trustee may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith. Any replacement Certificate
issued pursuant to this Section 5.03 shall constitute complete and
indefeasible evidence of ownership, as if originally issued, whether or not
the lost, stolen, or destroyed Certificate is found at any time.
Section 5.04. Persons Deemed Owners.
The Master Servicer, the Trustee and any agent of the Master Servicer
or the Trustee may treat the Person in whose name any Certificate is
registered as the owner of such Certificate for the purpose of receiving
distributions as provided in this Agreement and for all other purposes
whatsoever, and neither the Master Servicer, the Trustee nor any agent of the
Master Servicer or the Trustee shall be affected by any notice to the
contrary.
V-6
Section 5.05. Access to List of Certificateholders' Names and
Addresses.
If three or more Certificateholders (a) request such information in
writing from the Trustee, (b) state that such Certificateholders desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates, and (c) provide a copy of the
communication which such Certificateholders propose to transmit, or if the
Depositor or Master Servicer shall request such information in writing from
the Trustee, then the Trustee shall, within ten Business Days after the
receipt of such request, provide the Depositor, the Master Servicer or such
Certificateholders at such recipients' expense the most recent list of the
Certificateholders of such Trust Fund held by the Trustee. The Depositor and
every Certificateholder, by receiving and holding a Certificate, agree that
the Trustee shall not be held accountable because of the disclosure of any
such information as to the list of the Certificateholders hereunder,
regardless of the source from which such information was derived.
Section 5.06. Maintenance of Office or Agency.
The Trustee will maintain at its expense an office or offices or
agency or agencies in New York City located at c/o DTC Transfer Services, ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇ Entrance, New York, New York 10041, where
Certificates may be surrendered for registration of transfer or exchange. The
Trustee initially designates its Corporate Trust Office for such purposes. The
Trustee will give prompt written notice to the Certificateholders of any
change in such location of any such office or agency.
V-7
ARTICLE SIX
THE DEPOSITOR AND THE MASTER SERVICER
Section 6.01. Respective Liabilities of the Depositor and the Master
Servicer.
The Depositor and the Master Servicer shall each be liable in
accordance herewith only to the extent of the obligations specifically and
respectively imposed upon and undertaken by them herein.
Section 6.02. Merger or Consolidation of the Depositor or the Master
Servicer.
The Depositor and the Master Servicer will each keep in full effect
their existence and their rights and franchises as a corporation and a federal
savings bank, respectively, under the laws of the United States or under the
laws of one of the states thereof and will each obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its respective duties under this Agreement.
Any Person into which the Depositor or the Master Servicer may be
merged or consolidated, or any Person resulting from any merger or
consolidation to which the Depositor or the Master Servicer shall be a party,
or any person succeeding to the business of the Depositor or the Master
Servicer, shall be the successor of the Depositor or the Master Servicer, as
the case may be, hereunder, without the execution or filing of any paper or
any further act on the part of any of the parties hereto, anything herein to
the contrary notwithstanding; provided, however, that the successor or
surviving Person to the Master Servicer shall be qualified to sell mortgage
loans to, and to service mortgage loans on behalf of, FNMA or FHLMC.
Section 6.03. Limitation on Liability of the Depositor, the Seller,
the Master Servicer and Others.
None of the Depositor, the Seller, the Master Servicer or any of the
directors, officers, employees or agents of the Depositor, the Seller or the
Master Servicer shall be under any liability to the Certificateholders for any
action taken or for refraining from the taking of any action in good faith
pursuant to this Agreement, or for errors in judgment; provided, however, that
this provision shall not protect the Depositor, the Seller, the Master
Servicer or any such Person against any breach of representations or
warranties made by it herein or protect the Depositor, the Seller, the Master
Servicer or any such Person from any liability which would otherwise be
imposed by reasons of willful misfeasance, bad faith or gross negligence in
the performance of duties or because of reckless disregard of obligations and
duties hereunder. The Depositor, the Seller, the Master Servicer and any
director, officer, employee or agent of the Depositor, the Seller or the
Master Servicer may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. The Depositor, the Seller, the Master Servicer and any director,
officer, employee or agent of the Depositor, the Seller or the Master Servicer
shall be indemnified by the Trust Fund and held harmless against any loss,
liability or expense incurred in connection with any audit, controversy or
judicial proceeding relating to a governmental taxing authority or any legal
action relating to this Agreement or the Certificates, other than any loss,
liability or
VI-1
expense related to any specific Mortgage Loan or Mortgage Loans (except as any
such loss, liability or expense shall be otherwise reimbursable pursuant to
this Agreement) and any loss, liability or expense incurred because of willful
misfeasance, bad faith or gross negligence in the performance of duties
hereunder or because of reckless disregard of obligations and duties
hereunder. None of the Depositor, the Seller or the Master Servicer shall be
under any obligation to appear in, prosecute or defend any legal action that
is not incidental to its respective duties hereunder and which in its opinion
may involve it in any expense or liability; provided, however, that any of the
Depositor, the Seller or the Master Servicer may in its discretion undertake
any such action that it may deem appropriate in respect of this Agreement and
the rights and duties of the parties hereto and interests of the Trustee and
the Certificateholders hereunder. In such event, the legal expenses and costs
of such action and any liability resulting therefrom shall be expenses, costs
and liabilities of the Trust Fund, and the Depositor, the Seller and the
Master Servicer shall be entitled to be reimbursed therefor out of the
Certificate Account.
Section 6.04. Limitation on Resignation of the Master Servicer.
The Master Servicer shall not resign from the obligations and duties
hereby imposed on it except (a) upon appointment of a successor servicer and
receipt by the Trustee of a letter from each Rating Agency that such a
resignation and appointment will not result in a downgrading of the rating of
any of the Certificates or (b) upon determination that its duties hereunder
are no longer permissible under applicable law. Any such determination under
clause (b) permitting the resignation of the Master Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Trustee. No
such resignation shall become effective until the Trustee or a successor
master servicer shall have assumed the Master Servicer's responsibilities,
duties, liabilities and obligations hereunder.
VI-2
ARTICLE SEVEN
DEFAULT
Section 7.01. Events of Default.
"Event of Default," wherever used herein, means any one of the
following events:
(a) any failure by the Master Servicer to deposit in the Certificate
Account or remit to the Trustee any payment required to be made by it under
this Agreement, which failure continues unremedied for five days after the
date on which written notice of the failure has been given to the Master
Servicer by the Trustee or the Depositor or to the Master Servicer and the
Trustee by the Holders of Certificates of any Class evidencing not less than
25% of the aggregate Percentage Interests of the Class; or
(b) any failure by the Master Servicer to observe or perform in any
material respect any other of the covenants or agreements on the part of the
Master Servicer contained in this Agreement, which failure materially affects
the rights of Certificateholders and continues unremedied for a period of 60
days after the date on which written notice of such failure shall have been
given to the Master Servicer by the Trustee or the Depositor, or to the Master
Servicer and the Trustee by the Holders of Certificates of any Class
evidencing not less than 25% of the Percentage Interests of the Class;
provided that the sixty-day cure period shall not apply to the initial
delivery of the Mortgage File for Delay Delivery Mortgage Loans nor the
failure to repurchase or substitute in lieu thereof; or
(c) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises for the appointment of a receiver,
conservator or liquidator in any insolvency, readjustment of debt, marshalling
of assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Master
Servicer and such decree or order shall have remained in force undischarged or
unstayed for a period of 60 consecutive days; or
(d) the Master Servicer shall consent to the appointment of a receiver,
conservator or liquidator in any insolvency, readjustment of debt, marshalling
of assets and liabilities or similar proceedings of or relating to the Master
Servicer or all or substantially all of the property of the Master Servicer;
or
(e) the Master Servicer shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage of, or
commence a voluntary case under, any applicable insolvency or reorganization
statute, make an assignment for the benefit of its creditors, or voluntarily
suspend payment of its obligations.
If an Event of Default described in clauses (a) through (e) of this
Section 7.01 shall occur, then, and in each and every such case, so long as
such Event of Default shall not have been remedied, the Trustee may, or at the
direction of the Holders of Certificates of any Class evidencing not less than
66 2/3% of the Percentage Interests of the Class, the Trustee shall by notice
in writing to the Master Servicer (with a copy to each Rating Agency),
terminate all of the rights and obligations of the Master Servicer under this
VII-1
Agreement and in the Mortgage Loans and the proceeds thereof, other than its
rights as a Certificateholder hereunder. On and after the receipt by the
Master Servicer of such written notice, all authority and power of the Master
Servicer hereunder, whether with respect to the Mortgage Loans or otherwise,
shall pass to and be vested in the Trustee. The Trustee shall make any Advance
that the Master Servicer failed to make subject to Sections 3.03 and 3.05,
whether or not the obligations of the Master Servicer have been terminated
pursuant to this Section. The Trustee is hereby authorized and empowered to
execute and deliver, on behalf of the Master Servicer, as attorney-in-fact or
otherwise, any documents and other instruments, and to do or accomplish all
other acts or things necessary or appropriate to effect the purposes of such
notice of termination, whether to complete the transfer and endorsement or
assignment of the Mortgage Loans and related documents, or otherwise. Unless
expressly provided in such written notice, no such termination shall affect
any obligation of the Master Servicer to pay amounts owed pursuant to Article
VIII. The Master Servicer agrees to cooperate with the Trustee in effecting
the termination of the Master Servicer's responsibilities and rights
hereunder, including the transfer to the Trustee of all cash amounts which
shall at the time be credited to the Certificate Account, or thereafter be
received with respect to the Mortgage Loans.
Notwithstanding any termination of the activities of the Master
Servicer hereunder, the Master Servicer shall be entitled to receive, out of
any late collection of a Scheduled Payment on a Mortgage Loan which was due
before the notice terminating such Master Servicer's rights and obligations as
Master Servicer hereunder and received after such notice, that portion thereof
to which such Master Servicer would have been entitled pursuant to Sections
3.11(a)(i) through (viii), and any other amounts payable to such Master
Servicer hereunder the entitlement to which arose before the termination of
its activities hereunder.
Section 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer receives a notice of
termination pursuant to Section 7.01, the Trustee shall, subject to and to the
extent provided in Section 3.05, be the successor to the Master Servicer in
its capacity as master servicer under this Agreement and the transactions set
forth or provided for herein and shall be subject to all the responsibilities,
duties and liabilities relating thereto placed on the Master Servicer by the
terms hereof and applicable law including the obligation to make Advances
pursuant to Section 4.01. As compensation therefor, the Trustee shall be
entitled to all funds relating to the Mortgage Loans that the Master Servicer
would have been entitled to charge to the Certificate Account or Distribution
Account if the Master Servicer had continued to act hereunder, including, if
the Master Servicer was receiving the Servicing Fee, the Servicing Fee.
Notwithstanding the foregoing, if the Trustee has become the successor to the
Master Servicer in accordance with Section 7.01, the Trustee may, if it shall
be unwilling to so act, or shall, if it is prohibited by applicable law from
making Advances pursuant to Section 4.01 or if it is otherwise unable to so
act, appoint, or petition a court of competent jurisdiction to appoint, any
established mortgage loan servicing institution the appointment of which does
not adversely affect the then current rating of the Certificates by each
Rating Agency, as the successor to the Master Servicer hereunder in the
assumption of all or any part of the responsibilities, duties or liabilities
of the Master Servicer hereunder. Any successor to the Master Servicer shall
be an institution which is a FNMA and FHLMC approved seller/servicer in good
standing, which has a net worth of at least $15,000,000, which is willing to
service the Mortgage Loans and which executes and delivers to the Depositor
and the Trustee an agreement
VII-2
accepting such delegation and assignment, containing an assumption by such
Person of the rights, powers, duties, responsibilities, obligations and
liabilities of the Master Servicer (other than liabilities of the Master
Servicer under Section 6.03 incurred before termination of the Master Servicer
under Section 7.01), with like effect as if originally named as a party to
this Agreement; provided that each Rating Agency acknowledges that its rating
of the Certificates in effect immediately before such assignment and
delegation will not be qualified or reduced, as a result of such assignment
and delegation. Pending appointment of a successor to the Master Servicer
hereunder, the Trustee, unless the Trustee is prohibited by law from so
acting, shall, subject to Section 3.05, act in such capacity as hereinabove
provided. In connection with such appointment and assumption, the Trustee may
make such arrangements for the compensation of such successor out of payments
on Mortgage Loans as it and such successor shall agree; provided, however,
that in no case shall the rate of such compensation exceed the Master
Servicing Fee Rate plus, if the Master Servicer was receiving the Servicing
Fee, the Servicing Fee Rate. The Trustee and such successor shall take such
action, consistent with this Agreement, as shall be necessary to effectuate
any such succession. Neither the Trustee nor any other successor master
servicer shall be deemed to be in default hereunder because of any failure to
make, or any delay in making, any distribution hereunder or any portion
thereof or any failure to perform, or any delay in performing, any duties or
responsibilities hereunder, in either case caused by the failure of the Master
Servicer to deliver or provide, or any delay in delivering or providing, any
cash, information, documents or records to it.
Any successor to the Master Servicer as master servicer shall give
notice to the Mortgagors of such change of servicer and shall, during the term
of its service as master servicer, maintain in force the policy or policies
that the Master Servicer is required to maintain pursuant to Section 6.05.
Section 7.03. Notification to Certificateholders.
(a) Upon any termination of or appointment of a successor to the Master
Servicer, the Trustee shall give prompt written notice thereof to
Certificateholders and to each Rating Agency.
(b) Within 60 days after the occurrence of any Event of Default, the
Trustee shall transmit by mail to all Certificateholders and each Rating
Agency notice of each such Event of Default hereunder known to the Trustee,
unless such Event of Default shall have been cured or waived.
VII-3
ARTICLE EIGHT
CONCERNING THE TRUSTEE
Section 8.01. Duties of the Trustee.
The Trustee, before the occurrence of an Event of Default and after
the curing of all Events of Default that may have occurred, shall undertake to
perform such duties and only such duties as are specifically set forth in this
Agreement. In case an Event of Default has occurred and remains uncured, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments
furnished to the Trustee that are specifically required to be furnished
pursuant to any provision of this Agreement shall examine them to determine
whether they are in the form required by this Agreement. The Trustee shall not
be responsible for the accuracy or content of any such resolution,
certificate, statement, opinion, report, document, order, or other instrument.
No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that, unless an Event
of Default known to the Trustee has occurred and is continuing,
(a) the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Agreement, the Trustee shall not be
liable except for the performance of the duties and obligations specifically
set forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee, and the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to the Trustee
and conforming to the requirements of this Agreement which it believed in good
faith to be genuine and to have been duly executed by the proper authorities
respecting any matters arising hereunder;
(b) the Trustee shall not be liable for an error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it is finally proven that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken,
suffered, or omitted to be taken by it in good faith in accordance with the
direction of Holders of Certificates evidencing not less than 25% of the
Voting Rights of Certificates relating to the time, method, and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee under this Agreement.
VIII-1
Section 8.02. Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(a) the Trustee may request and rely upon and shall be protected in
acting or refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties and the Trustee shall have no
responsibility to ascertain or confirm the genuineness of any signature of any
such party or parties;
(b) the Trustee may consult with counsel, financial advisers or
accountants and the advice of any such counsel, financial advisers or
accountants and any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such Opinion of
Counsel;
(c) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement;
(d) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other
paper or document, unless requested in writing so to do by Holders of
Certificates evidencing not less than 25% of the Voting Rights allocated to
each Class of Certificates;
(e) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
accountants or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agents, accountants or attorneys
appointed with due care by it hereunder;
(f) the Trustee shall not be required to risk or expend its own funds
or otherwise incur any financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers hereunder if it shall
have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not assured to it;
(g) the Trustee shall not be liable for any loss on any investment of
funds pursuant to this Agreement (other than as issuer of the investment
security);
(h) the Trustee shall not be deemed to have knowledge of an Event of
Default until a Responsible Officer of the Trustee shall have received written
notice thereof; and
(i) the Trustee shall be under no obligation to exercise any of the
trusts, rights or powers vested in it by this Agreement or to institute,
conduct or defend any litigation hereunder or in relation hereto at the
request, order or direction of any of the Certificateholders, pursuant to this
Agreement, unless such
VIII-2
Certificateholders shall have offered to the Trustee reasonable security or
indemnity satisfactory to the Trustee against the costs, expenses and
liabilities which may be incurred therein or thereby.
Section 8.03. Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates shall be taken
as the statements of the Depositor or the Seller, as the case may be, and the
Trustee assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Agreement or of the
Certificates or of any Mortgage Loan or related document other than with
respect to the Trustee's execution and countersignature of the Certificates.
The Trustee shall not be accountable for the use or application by the
Depositor or the Master Servicer of any funds paid to the Depositor or the
Master Servicer in respect of the Mortgage Loans or deposited in or withdrawn
from the Certificate Account by the Depositor or the Master Servicer.
Except as provided in Section 2.01(c), the Trustee shall have no
responsibility for filing or recording any financing or continuation statement
in any public office at any time or to otherwise perfect or maintain the
perfection of any security interest or lien granted to it hereunder (unless
the Trustee shall have become the successor Master Servicer).
The Trustee executes the Certificates not in its individual capacity
but solely as Trustee of the Trust Fund created by this Agreement, in the
exercise of the powers and authority conferred and vested in it by this
Agreement. Each of the undertakings and agreements made on the part of the
Trustee on behalf of the Trust Fund in the Certificates is made and intended
not as a personal undertaking or agreement by the Trustee but is made and
intended for the purpose of binding only the Trust Fund.
Section 8.04. Trustee May Own Certificates.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Certificates with the same rights as it would have if it
were not the Trustee.
Section 8.05. Trustee's Fees and Expenses.
As compensation for its activities under this Agreement, on each
Distribution Date the Trustee may withdraw from the Distribution Account the
Trustee Fee for that Distribution Date. The Trustee and any director, officer,
employee, or agent of the Trustee shall be indemnified by the Master Servicer
against any loss, liability, or expense (including reasonable attorney's fees)
resulting from any error in any tax or information return prepared by the
Master Servicer or incurred in connection with any claim or legal action
relating to
(a) this Agreement and the Yield Maintenance Agreements,
(b) the Certificates, or
(c) the performance of any of the Trustee's duties under this
Agreement, other than any loss, liability, or expense incurred because of
willful misfeasance, bad faith, or negligence in the performance of
VIII-3
any of the Trustee's duties hereunder or incurred by reason of any action of
the Trustee taken at the direction of the Certificateholders under this
Agreement. This indemnity shall survive the termination of this Agreement or
the resignation or removal of the Trustee under this Agreement. Without
limiting the foregoing, except as otherwise agreed upon in writing by the
Depositor and the Trustee, and except for any expense, disbursement, or
advance arising from the Trustee's negligence, bad faith, or willful
misconduct, the Master Servicer shall pay or reimburse the Trustee, for all
reasonable expenses, disbursements, and advances incurred or made by the
Trustee in accordance with this Agreement with respect to
(A) the reasonable compensation, expenses, and disbursements of its
counsel not associated with the closing of the issuance of the Certificates,
(B) the reasonable compensation, expenses, and disbursements of any
accountant, engineer, or appraiser that is not regularly employed by the
Trustee, to the extent that the Trustee must engage them to perform services
under this Agreement, and
(C) printing and engraving expenses in connection with preparing any
Definitive Certificates.
Except as otherwise provided in this Agreement, the Trustee shall not be
entitled to payment or reimbursement for any routine ongoing expenses incurred
by the Trustee in the ordinary course of its duties as Trustee, Registrar, or
Paying Agent under this Agreement or for any other expenses.
Section 8.06. Eligibility Requirements for the Trustee.
The Trustee hereunder shall at all times be a corporation or
association organized and doing business under the laws of a state or the
United States of America, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by federal or state authority and with a
credit rating which would not cause either of the Rating Agencies to reduce
their respective then current ratings of the Certificates (or having provided
such security from time to time as is sufficient to avoid such reduction) as
evidenced in writing by each Rating Agency. If such corporation or association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 8.06 the combined capital and surplus of such
corporation or association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with
this Section 8.06, the Trustee shall resign immediately in the manner and with
the effect specified in Section 8.07. The entity serving as Trustee may have
normal banking and trust relationships with the Depositor and its affiliates
or the Master Servicer and its affiliates; provided, however, that such entity
cannot be an affiliate of the Seller, the Depositor or the Master Servicer
other than the Trustee in its role as successor to the Master Servicer.
Section 8.07. Resignation and Removal of the Trustee.
The Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice of resignation to the Depositor, the
Master Servicer, and each Rating Agency not less than 60
VIII-4
days before the date specified in such notice, when, subject to Section 8.08,
such resignation is to take effect, and acceptance by a successor trustee in
accordance with Section 8.08 meeting the qualifications set forth in Section
8.06. If no successor trustee meeting such qualifications shall have been so
appointed and have accepted appointment within 30 days after the giving of
such notice or resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible in accordance
with Section 8.06 and shall fail to resign after written request thereto by
the Depositor, or if at any time the Trustee shall become incapable of acting,
or shall be adjudged as bankrupt or insolvent, or a receiver of the Trustee or
of its property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, or a tax is imposed with respect
to the Trust Fund by any state in which the Trustee or the Trust Fund is
located and the imposition of such tax would be avoided by the appointment of
a different trustee, then the Depositor or the Master Servicer may remove the
Trustee and appoint a successor trustee by written instrument, in triplicate,
one copy of which shall be delivered to the Trustee, one copy to the Master
Servicer and one copy to the successor trustee.
The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which shall be
delivered by the successor Trustee to the Master Servicer, one complete set to
the Trustee so removed and one complete set to the successor so appointed. The
successor trustee shall notify each Rating Agency of any removal of the
Trustee.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to this Section 8.07 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section
8.08.
Section 8.08. Successor Trustee.
Any successor trustee appointed as provided in Section 8.07 shall
execute, acknowledge and deliver to the Depositor and to its predecessor
trustee and the Master Servicer an instrument accepting such appointment
hereunder and thereupon the resignation or removal of the predecessor trustee
shall become effective and such successor trustee, without any further act,
deed or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor hereunder, with the like effect as
if originally named as trustee herein. The Depositor, the Master Servicer and
the predecessor trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for more fully and certainly
vesting and confirming in the successor trustee all such rights, powers,
duties, and obligations.
No successor trustee shall accept appointment as provided in this
Section 8.08 unless, at the time of its acceptance, the successor trustee is
eligible under Section 8.06 and its appointment does not adversely affect the
then current rating of the Certificates.
VIII-5
Upon acceptance of appointment by a successor trustee as provided in
this Section 8.08, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates. If the Depositor fails to
mail such notice within 10 days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be mailed
at the expense of the Depositor.
Section 8.09. Merger or Consolidation of the Trustee.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to the business of the Trustee, shall be the
successor of the Trustee hereunder, provided that such corporation shall be
eligible under Section 8.06 without the execution or filing of any paper or
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
Section 8.10. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust Fund or property securing any Mortgage Note may at the
time be located, the Master Servicer and the Trustee acting jointly shall have
the power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Trustee to act as co-trustee or co-trustees jointly
with the Trustee, or separate trustee or separate trustees, of all or any part
of the Trust Fund, and to vest in such Person or Persons, in such capacity and
for the benefit of the Certificateholders, such title to the Trust Fund or any
part thereof, whichever is applicable, and, subject to the other provisions of
this Section 8.10, such powers, duties, obligations, rights and trusts as the
Master Servicer and the Trustee may consider appropriate. If the Master
Servicer shall not have joined in such appointment within 15 days after the
receipt by it of a request to do so, or in the case an Event of Default shall
have occurred and be continuing, the Trustee alone shall have the power to
make such appointment. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
8.06 and no notice to Certificateholders of the appointment of any co-trustee
or separate trustee shall be required under Section 8.08.
Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and
conditions:
(a) To the extent necessary to effectuate the purposes of this Section
8.10, all rights, powers, duties and obligations conferred or imposed upon the
Trustee, except for the obligation of the Trustee under this Agreement to
advance funds on behalf of the Master Servicer, shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Trustee joining in
such act), except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Master Servicer hereunder), the Trustee shall
be incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of title to the
applicable Trust Fund or any portion thereof in any such
VIII-6
jurisdiction) shall be exercised and performed singly by such separate trustee
or co-trustee, but solely at the direction of the Trustee;
(b) No trustee hereunder shall be held personally liable because of any
act or omission of any other trustee hereunder and such appointment shall not,
and shall not be deemed to, constitute any such separate trustee or co-trustee
as agent of the Trustee;
(c) The Trustee may at any time accept the resignation of or remove
any separate trustee or co-trustee; and
(d) The Master Servicer, and not the Trustee, shall be liable for the
payment of reasonable compensation, reimbursement and indemnification to any
such separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the separate trustees and co-trustees,
when and as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article VIII. Each separate trustee and co-trustee,
upon its acceptance of the trusts conferred, shall be vested with the estates
or property specified in its instrument of appointment, either jointly with
the Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Trustee. Every such instrument shall be filed with the
Trustee and a copy thereof given to the Master Servicer and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its
estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
Section 8.11. Tax Matters.
It is intended that the assets with respect to which any REMIC
election pertaining to the Trust Fund is to be made, as set forth in the
Preliminary Statement, shall constitute, and that the conduct of matters
relating to such assets shall be such as to qualify such assets as, a "real
estate mortgage investment conduit" as defined in and in accordance with the
REMIC Provisions. In furtherance of such intention, the Trustee covenants and
agrees that it shall act as agent (and the Trustee is hereby appointed to act
as agent) on behalf of any the REMIC and that in such capacity it shall:
(a) prepare and file in a timely manner, a U.S. Real Estate Mortgage
Investment Conduit Income Tax Return (Form 1066 or any successor form adopted
by the Internal Revenue Service) with respect to each REMIC created hereunder
and prepare and file with the Internal Revenue Service and applicable state or
local tax authorities income tax or information returns for each taxable year
with respect to any REMIC
VIII-7
described in the Preliminary Statement, containing such information and at the
times and in the manner as may be required by the Code or state or local tax
laws, regulations, or rules, and furnish to Certificateholders the schedules,
statements or information at such times and in such manner as may be required
thereby;
(b) within thirty days of the Closing Date, furnish to the Internal
Revenue Service, on Forms 8811 or as otherwise may be required by the Code,
the name, title, address, and telephone number of the person that the holders
of the Certificates may contact for tax information relating thereto, together
with such additional information as may be required by such Form, and update
such information at the time or times in the manner required by the Code;
(c) make an election that each REMIC created hereunder be treated as a
REMIC on the federal tax return for its first taxable year (and, if necessary,
under applicable state law);
(d) prepare and forward to the Certificateholders and to the Internal
Revenue Service and, if necessary, state tax authorities, all information
returns and reports as and when required to be provided to them in accordance
with the REMIC Provisions, including the calculation of any original issue
discount using the Prepayment Assumption (as defined in the Prospectus
Supplement);
(e) provide information necessary for the computation of tax imposed on
the transfer of a Residual Certificate to a Person that is not a Permitted
Transferee, or an agent (including a broker, nominee or other middleman) of a
non-Permitted Transferee, or a pass-through entity in which a non-Permitted
Transferee is the record holder of an interest (the reasonable cost of
computing and furnishing such information may be charged to the Person liable
for such tax);
(f) to the extent that they are under its control, conduct matters
relating to such assets at all times that any Certificates are outstanding so
as to maintain the status as a REMIC under the REMIC Provisions;
(g) not knowingly or intentionally take any action or omit to take any
action that would cause the termination of the REMIC status of any REMIC
created hereunder;
(h) pay, from the sources specified in the last paragraph of this
Section 8.11, the amount of any federal or state tax, including prohibited
transaction taxes as described below, imposed on any REMIC created hereunder
before its termination when and as the same shall be due and payable (but such
obligation shall not prevent the Trustee or any other appropriate Person from
contesting any such tax in appropriate proceedings and shall not prevent the
Trustee from withholding payment of such tax, if permitted by law, pending the
outcome of such proceedings);
(i) ensure that federal, state or local income tax or information
returns shall be signed by the Trustee or such other person as may be required
to sign such returns by the Code or state or local laws, regulations or rules;
(j) maintain records relating to each REMIC created hereunder,
including the income, expenses, assets, and liabilities thereof and the fair
market value and adjusted basis of the assets determined at such
VIII-8
intervals as may be required by the Code, as may be necessary to prepare the
foregoing returns, schedules, statements or information; and
(k) as and when necessary and appropriate, represent each REMIC created
hereunder in any administrative or judicial proceedings relating to an
examination or audit by any governmental taxing authority, request an
administrative adjustment as to any taxable year of such REMIC created
hereunder, enter into settlement agreements with any governmental taxing
agency, extend any statute of limitations relating to any tax item of such
REMIC created hereunder, and otherwise act on behalf of such REMIC created
hereunder in relation to any tax matter or controversy involving it.
To enable the Trustee to perform its duties under this Agreement, the
Depositor shall provide to the Trustee within ten days after the Closing Date
all information or data that the Trustee requests in writing and determines to
be relevant for tax purposes to the valuations and offering prices of the
Certificates, including the price, yield, prepayment assumption, and projected
cash flows of the Certificates and the Mortgage Loans. Moreover, the Depositor
shall provide information to the Trustee concerning the value of each Class of
Certificates of the right to receive Carryforward Amounts from the related
Carryover Reserve Fund Account. Thereafter, the Depositor shall provide to the
Trustee promptly upon written request therefor any additional information or
data that the Trustee may, from time to time, reasonably request to enable the
Trustee to perform its duties under this Agreement. The Depositor hereby
indemnifies the Trustee for any losses, liabilities, damages, claims, or
expenses of the Trustee arising from any errors or miscalculations of the
Trustee that result from any failure of the Depositor to provide, or to cause
to be provided, accurate information or data to the Trustee on a timely basis.
If any tax is imposed on "prohibited transactions" (as defined in
Section 860F(a)(2) of the Code) of any REMIC created hereunder, on the "net
income from foreclosure property" of any REMIC created hereunder as defined in
Section 860G(c) of the Code, on any contribution to any REMIC created
hereunder after the Startup Day pursuant to Section 860G(d) of the Code, or
any other tax is imposed, including any minimum tax imposed on any REMIC
created hereunder pursuant to Sections 23153 and 24874 of the California
Revenue and Taxation Code, if not paid as otherwise provided for herein, the
tax shall be paid by (i) the Trustee, if any such other tax arises out of or
results from negligence of the Trustee in the performance of any of its
obligations under this Agreement, (ii) the Master Servicer or the Seller, in
the case of any such minimum tax, if such tax arises out of or results from a
breach by the Master Servicer or Seller of any of their obligations under this
Agreement, (iii) the Seller, if any such tax arises out of or results from the
Seller's obligation to repurchase a Mortgage Loan pursuant to Section 2.02 or
2.03, or (iv) in all other cases, or if the Trustee, the Master Servicer, or
the Seller fails to honor its obligations under the preceding clauses (i),
(ii), or (iii), any such tax will be paid with amounts otherwise to be
distributed to the Certificateholders, as provided in Section 3.09(b).
Section 8.12. Periodic Filings.
Pursuant to written instructions from the Depositor, the Trustee shall
prepare, execute and file all periodic reports required under the Securities
Exchange Act of 1934 in conformity with the terms of the
VIII-9
relief granted to issuers similar to the Trust Fund. In connection with the
preparation and filing of such periodic reports, the Depositor and the Master
Servicer shall timely provide to the Trustee all material information
available to them which is required to be included in such reports and not
known to them to be in the possession of the Trustee and such other
information as the Trustee reasonably may request from either of them and
otherwise reasonably shall cooperate with the Trustee. The Trustee shall have
no liability with respect to any failure to properly prepare or file such
periodic reports resulting from or relating to the Trustee's inability or
failure to obtain any information not resulting from its own negligence or
willful misconduct.
Section 8.13. [Reserved]
Section 8.14. Tax Classification of the Carryover Reserve Fund Account.
For federal income tax purposes, the Trustee shall treat each
Carryover Reserve Fund Account, Pre-Funding Account and Capitalized Interest
Account as an outside reserve fund, within the meaning of Treasury Regulation
ss. 1.860-2(h), that is beneficially owned by the Seller.
VIII-10
ARTICLE NINE
TERMINATION
Section 9.01. Termination upon Liquidation or Purchase of the Mortgage
Loans.
Subject to Section 9.03, the obligations and responsibilities of the
Depositor, the Master Servicer and the Trustee created hereby with respect to
each Certificate Group shall terminate upon the earlier of
(a) the purchase by the Master Servicer of all Mortgage Loans (and REO
Properties) in the related Loan Group at the price equal to the sum of
(i) 100% of the Stated Principal Balance of each Initial
Mortgage Loan in that Loan Group (other than in respect of REO
Property) plus one month's accrued interest thereon at the applicable
Adjusted Mortgage Rate, plus and
(ii) the lesser of (x) the appraised value of any REO Property
in that Loan Group as determined by the higher of two appraisals
completed by two independent appraisers selected by the Master
Servicer at the expense of the Master Servicer and (y) the Stated
Principal Balance of each such Mortgage Loan related to such REO
Property in that Loan Group, in each case plus accrued and unpaid
interest thereon at the applicable Adjusted Net Mortgage Rate and
(b) the later of
(i) the maturity or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan remaining in that Loan
Group and the disposition of all REO Property and
(ii) the distribution to Certificateholders of all amounts
required to be distributed to them pursuant to this Agreement. In no
event shall the trusts created hereby continue beyond the expiration
of 21 years from the death of the survivor of the descendants of
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the United States to the
Court of St. James's, living on the date hereof.
The right to purchase all Mortgage Loans and REO Properties in a Loan
Group pursuant to clause (a) above shall be conditioned upon the aggregate
Stated Principal Balance of those Mortgage Loans, at the time of any such
repurchase, aggregating ten percent or less of the sum of (i) the aggregate
Stated Principal Balance of the Initial Mortgage Loans in that Loan Group as
of the Cut-off Date and (ii) the aggregate Stated Principal Balance of any
Subsequent Mortgage Loans transferred to the Trust for that Loan Group as of a
Subsequent Transfer Date.
Section 9.02. Final Distribution on the Certificates.
If on any Determination Date, the Master Servicer determines that
there are no Outstanding Mortgage Loans and no other funds or assets in the
Trust Fund other than the funds in the Certificate Account, the Master
Servicer shall direct the Trustee promptly to send a final distribution notice
to each
IX-1
Certificateholder. If the Master Servicer elects to terminate the Trust Fund
pursuant to clause (a) of Section 9.01, at least 20 days before the date
notice is to be mailed to the affected Certificateholders the Master Servicer
shall notify the Depositor and the Trustee of the date the Master Servicer
intends to terminate the Trust Fund and of the applicable repurchase price of
the Mortgage Loans and REO Properties.
Notice of any termination of the Trust Fund, specifying the
Distribution Date on which Certificateholders may surrender their Certificates
for payment of the final distribution and cancellation, shall be given
promptly by the Trustee by letter to Certificateholders mailed not earlier
than the 15th day and not later than the 10th day of the month next preceding
the month of such final distribution. Any such notice shall specify (a) the
Distribution Date upon which final distribution on the Certificates will be
made upon presentation and surrender of Certificates at the office therein
designated, (b) the amount of such final distribution, (c) the location of the
office or agency at which such presentation and surrender must be made, and
(d) that the Record Date otherwise applicable to the Distribution Date is not
applicable, distributions being made only upon presentation and surrender of
the Certificates at the office therein specified. The Master Servicer will
give such notice to each Rating Agency at the time such notice is given to
Certificateholders.
If the notice is given, the Master Servicer shall cause all funds in
the Certificate Account to be remitted to the Trustee for deposit in the
Distribution Account on the Business Day before the applicable Distribution
Date in an amount equal to the final distribution in respect of the
Certificates. Upon such final deposit with respect to the Trust Fund and the
receipt by the Trustee of a Request for Release therefor, the Trustee shall
promptly release to the Master Servicer the Mortgage Files for the Mortgage
Loans.
Upon presentation and surrender of the Certificates, the Trustee shall
cause to be distributed to the Certificateholders of each Class, in each case
on the final Distribution Date and in the order set forth in Section 4.02, in
proportion to their respective Percentage Interests, with respect to
Certificateholders of the same Class, an amount equal to (i) as to each Class
of Regular Certificates (except the Class OC Certificates), its Certificate
Balance plus for each such Class accrued interest thereon (or on their
Notional Amount, if applicable) in the case of an interest-bearing Certificate
and (ii) as to the Residual Certificates, any amount remaining on deposit in
the Distribution Account (other than the amounts retained to meet claims)
after application pursuant to clause (i) above.
If any affected Certificateholder does not surrender its Certificates
for cancellation within six months after the date specified in the above
mentioned written notice, the Trustee shall give a second written notice to
the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If
within six months after the second notice all the applicable Certificates
shall not have been surrendered for cancellation, the Trustee may take
appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds and other
assets which remain a part of the Trust Fund. If within one year after the
second notice all Certificates shall not have been surrendered for
cancellation, the Class R Certificateholders shall be entitled to all
unclaimed funds and other assets of the Trust Fund which remain subject
hereto.
IX-2
Section 9.03. Additional Termination Requirements.
(a) If the Master Servicer exercises its purchase option with respect
to the Mortgage Loans in the second Loan Group as provided in Section 9.01,
the Trust Fund shall be terminated in accordance with the following additional
requirements, unless the Trustee has been supplied with an Opinion of Counsel,
at the expense of the Master Servicer, to the effect that the failure to
comply with the requirements of this Section 9.03 will not (i) result in the
imposition of taxes on "prohibited transactions" on either REMIC as defined in
Section 860F of the Code, or (ii) cause either the Subsidiary REMIC, the
Intermediate REMIC or the Master REMIC to fail to qualify as a REMIC at any
time that any Certificates are outstanding:
(b) The Trustee shall sell all of the assets of the Trust Fund to the
Master Servicer, and, within 90 days of such sale, shall distribute to the
Certificateholders the proceeds of such sale in complete liquidation of the
Subsidiary REMIC, the Intermediate REMIC and the Master REMIC.
(c) The Trustee shall attach a statement to the final federal income
tax return for each of the the Subsidiary REMIC, the Intermediate REMIC and
the Master REMIC stating that pursuant to Treasury Regulation ss. 1.860F-1,
the first day of the 90-day liquidation period for each the REMIC was the date
on which the Trustee sold the assets of the Trust Fund to the Master Servicer.
IX-3
ARTICLE TEN
MISCELLANEOUS PROVISIONS
Section 10.01. Amendment.
This Agreement may be amended from time to time by the Depositor, the
Master Servicer and the Trustee without the consent of any of the
Certificateholders
(i) to cure any ambiguity or mistake,
(ii) to correct any defective provision herein or to supplement any
provision herein which may be inconsistent with any other provision herein,
(iii) to add to the duties of the Depositor, the Seller or the Master
Servicer,
(iv) to add any other provisions with respect to matters or questions
arising hereunder; or
(v) to modify, alter, amend, add to, or rescind any of the terms or
provisions contained in this Agreement.
No action pursuant to clauses (iv) or (v) above may, as evidenced by an
Opinion of Counsel (which Opinion of Counsel shall not be an expense of the
Trustee or the Trust Fund), adversely affect in any material respect the
interests of any Certificateholder. The amendment shall not be deemed to
adversely affect in any material respect the interests of the
Certificateholders if the Person requesting the amendment obtains a letter
from each Rating Agency stating that the amendment would not result in the
downgrading or withdrawal of the respective ratings then assigned to the
Certificates. Any such letter in and of itself will not represent a
determination as to the materiality of any amendment and will represent a
determination only as to the credit issues affecting any rating.
The Trustee, the Depositor, and the Master Servicer also may at any time and
from time to time amend this Agreement without the consent of the
Certificateholders to modify, eliminate, or add to any of its provisions to
the extent necessary or helpful to
(i) maintain the qualification of any REMIC created hereunder as a
REMIC under the Code,
(ii) avoid or minimize the risk of the imposition of any tax on any
REMIC created hereunder pursuant to the Code that would be a claim at any time
before the final redemption of the Certificates, or
(iii) comply with any other requirements of the Code,
if the Trustee has been provided an Opinion of Counsel, which opinion
shall be an expense of the party requesting such opinion but in any case shall
not be an expense of the Trustee or the Trust Fund, to the effect that the
action is necessary or helpful for one of the foregoing purposes.
X-1
This Agreement may also be amended from time to time by the Depositor,
the Master Servicer and the Trustee with the consent of the Holders of
Certificates evidencing a Majority in Interest of each Class of Certificates
affected thereby for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Holders of Certificates. No
amendment shall
(i) reduce in any manner the amount of, or delay the timing of,
payments required to be distributed on any Certificate without the consent of
the Holder of such Certificate,
(ii) adversely affect in any material respect the interests of the
Holders of any Class of Certificates in a manner other than as described in
(i), without the consent of the Holders of Certificates of the Class
evidencing, as to the Class, Percentage Interests aggregating not less than a
majority in interest of the Class affected thereby, or
(iii) amend, modify, add to, rescind, or alter in any respect Section
10.13, notwithstanding any contrary provision of this Agreement, without the
consent of the Holders of Certificates evidencing Percentage Interests
aggregating not less than 66 2/3% (provided, however, that no Certificates
held by the Seller, the Depositor or any Affiliate thereby shall be given
effect for the purpose of calculating any such aggregation of Percentage
Interests), or
(iv) reduce the aforesaid percentages of Certificates the Holders of
which are required to consent to any such amendment, without the consent of
the Holders of all such Certificates then outstanding.
Notwithstanding any contrary provision of this Agreement, the Trustee
shall not consent to any amendment to this Agreement unless it shall have
first received an Opinion of Counsel, which opinion shall not be an expense of
the Trustee or the Trust Fund, to the effect that such amendment will not
cause the imposition of any tax on any REMIC created hereunder or the
Certificateholders or cause any REMIC created hereunder to fail to qualify as
a REMIC at any time that any Certificates are outstanding.
Promptly after the execution of any amendment to this Agreement
requiring the consent of Certificateholders, the Trustee shall furnish written
notification of the substance or a copy of such amendment to each
Certificateholder and each Rating Agency.
It shall not be necessary for the consent of Certificateholders under
this Section 10.01 to approve the particular form of any proposed amendment,
but it shall be sufficient if such consent shall approve the substance
thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject
to such reasonable regulations as the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee to enter into an
amendment without receiving an Opinion of Counsel (which Opinion shall not be
an expense of the Trustee or the Trust Fund), satisfactory to the Trustee that
(i) such amendment is permitted and is not prohibited by this Agreement and
that all requirements for amending this Agreement have been complied with; and
(ii) either (A) the amendment does
X-2
not adversely affect in any material respect the interests of any
Certificateholder or (B) the conclusion set forth in the preceding clause (A)
is not required to be reached pursuant to this Section 10.01.
Section 10.02. Recordation of Agreement; Counterparts.
This Agreement is subject to recordation in all appropriate public
offices for real property records in all the counties or other comparable
jurisdictions in which any or all of the properties subject to the Mortgages
are situated, and in any other appropriate public recording office or
elsewhere, such recordation to be effected by the Master Servicer at its
expense, but only upon receipt of an Opinion of Counsel to the effect that
such recordation materially and beneficially affects the interests of the
Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one
and the same instrument.
Section 10.03. Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS.
Section 10.04. Intention of Parties.
It is the express intent of the parties hereto that the conveyance (i)
of the Mortgage Loans by the Seller to the Depositor and (ii) of the Trust
Fund by the Depositor to the Trustee each be, and be construed as, an absolute
sale thereof. It is, further, not the intention of the parties that such
conveyances be deemed a pledge thereof. However, if, notwithstanding the
intent of the parties, the assets are held to be the property of the Seller or
Depositor, as the case may be, or if for any other reason this Agreement is
held or deemed to create a security interest in either such assets, then (i)
this Agreement shall be deemed to be a security agreement within the meaning
of the UCC and (ii) the conveyances provided for in this Agreement shall be
deemed to be an assignment and a grant (i) by the Seller to the Depositor or
(ii) by the Depositor to the Trustee, for the benefit of the
Certificateholders, of a security interest in all of the assets transferred,
whether now owned or hereafter acquired.
The Seller and the Depositor for the benefit of the Certificateholders
shall, to the extent consistent with this Agreement, take such actions as may
be necessary to ensure that, if this Agreement were deemed to create a
security interest in the Trust Fund, such security interest would be deemed to
be a perfected security interest of first priority under applicable law and
will be maintained as such throughout the term of the Agreement. The Depositor
shall arrange for filing any Uniform Commercial Code continuation
X-3
statements in connection with any security interest granted or assigned to the
Trustee for the benefit of the Certificateholders.
Section 10.05. Notices.
(a) The Trustee shall use its best efforts to promptly provide notice
to each Rating Agency with respect to each of the following of which it has
actual knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Event of Default that has not been cured;
3. The resignation or termination of the Master Servicer or the
Trustee and the appointment of any successor;
4. The repurchase or substitution of Mortgage Loans pursuant to
Section 2.03; and
5. The final payment to Certificateholders.
In addition, the Trustee shall promptly furnish to each Rating Agency
copies of the following:
1. Each report to Certificateholders described in Section 4.03;
2. Each annual statement as to compliance described in Section 3.17;
3. Each annual independent public accountants' servicing report
described in Section 3.18; and
4. Any notice of a purchase of a Mortgage Loan pursuant to Section
2.02, 2.03 or 3.11.
(b) All directions, demands and notices hereunder shall be in writing
and shall be deemed to have been duly given when delivered to (a) in the case
of the Depositor, IndyMac MBS, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇, (b) in the case of the Master
Servicer, IndyMac Bank, F.S.B., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ or such other address as may be hereafter
furnished to the Depositor and the Trustee by the Master Servicer in writing,
(c) in the case of the Trustee to the Corporate Trust Office, Bankers Trust
Company of California, N.A., ▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: Mortgage ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Series 2001-A1, or
such other address as the Trustee may hereafter furnish to the Depositor or
Master Servicer; and (d) in the case of each of the Rating Agencies, the
address specified therefor in the definition corresponding to the name of such
Rating Agency. Notices to Certificateholders shall be deemed given when
mailed, first class postage prepaid, to their respective addresses appearing
in the Certificate Register.
X-4
Section 10.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions
of this Agreement or of the Certificates or the rights of the Holders thereof.
Section 10.07. Assignment.
Notwithstanding anything to the contrary contained herein, except as
provided in Section 6.02, this Agreement may not be assigned by the Master
Servicer without the prior written consent of the Trustee and Depositor.
Section 10.08. Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the trust created hereby, nor entitle such
Certificateholder's legal representative or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a petition or
winding up of the trust created hereby, or otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as provided
herein) or in any manner otherwise control the operation and management of the
Trust Fund, or the obligations of the parties hereto, nor shall anything
herein set forth or contained in the terms of the Certificates be construed so
as to constitute the Certificateholders from time to time as partners or
members of an association; nor shall any Certificateholder be under any
liability to any third party because of any action taken by the parties to
this Agreement pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this
Agreement, unless such Holder previously shall have given to the Trustee a
written notice of an Event of Default and of the continuance thereof, as
herein provided, and unless the Holders of Certificates evidencing not less
than 25% of the Voting Rights evidenced by the Certificates shall also have
made written request to the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs,
expenses, and liabilities to be incurred therein or thereby, and the Trustee,
for 60 days after its receipt of such notice, request and offer of indemnity
shall have neglected or refused to institute any such action, suit or
proceeding; it being understood and intended, and being expressly covenanted
by each Certificateholder with every other Certificateholder and the Trustee,
that no one or more Holders of Certificates shall have any right in any manner
whatever by virtue or by availing itself or themselves of any provisions of
this Agreement to affect, disturb or prejudice the rights of the Holders of
any other of the Certificates, or to obtain or seek to obtain priority over or
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
X-5
enforcement of this Section 10.08, each Certificateholder and the Trustee
shall be entitled to any relief that can be given either at law or in equity.
Section 10.09. Inspection and Audit Rights.
The Master Servicer agrees that, on reasonable prior notice, it will
permit any representative of the Depositor or the Trustee during the Master
Servicer's normal business hours, to examine all the books of account,
records, reports and other papers of the Master Servicer relating to the
Mortgage Loans, to make copies and extracts therefrom, to cause such books to
be audited by independent certified public accountants selected by the
Depositor or the Trustee and to discuss its affairs, finances and accounts
relating to the Mortgage Loans with its officers, employees and independent
public accountants (and by this provision the Master Servicer hereby
authorizes said accountants to discuss with such representative such affairs,
finances and accounts), all at such reasonable times and as often as may be
reasonably requested. Any out-of-pocket expense incident to the exercise by
the Depositor or the Trustee of any right under this Section 10.09 shall be
borne by the party requesting such inspection; all other such expenses shall
be borne by the Master Servicer or the related Subservicer.
Section 10.10. Certificates Nonassessable and Fully Paid.
It is the intention of the Depositor that Certificateholders shall not
be personally liable for obligations of the Trust Fund, that the interests in
the Trust Fund represented by the Certificates shall be nonassessable for any
reason whatsoever, and that the Certificates, upon due authentication thereof
by the Trustee pursuant to this Agreement, are and shall be deemed fully paid.
Section 10.11. Official Record.
The Seller agrees that this Agreement is and shall remain at all times
before the time at which this Agreement terminates an official record of the
Seller as referred to in Section 13(e) of the Federal Deposit Insurance Act.
Section 10.12. Protection of Assets.
(a) Except for transactions and activities entered into in connection
with the securitization that is the subject of this agreement, the trust
created by this agreement is not authorized and has no power to:
(1) borrow money or issue debt;
(2) merge with another entity, reorganize, liquidate or sell
assets;
(3) engage in any business or activities.
(b) Each party to this agreement agrees that it will not file an
involuntary bankruptcy petition against the Trustee or the Trust Fund or
initiate any other form of insolvency proceeding until after the Certificates
have been paid.
X-6
Section 10.13. Qualifying Special Purpose Entity.
Notwithstanding any contrary provision of this Agreement, the Trust
Fund shall not hold any property or engage in any activity that would
disqualify the Trust Fund from being a qualifying special purpose entity under
generally accepted accounting principles.
* * * * * *
X-7
IN WITNESS WHEREOF, the Depositor, the Trustee, and the Seller and
Master Servicer have caused their names to be signed hereto by their
respective officers thereunto duly authorized as of the day and year first
above written.
INDYMAC MBS, INC.
as Depositor
By: /s/ S. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------------
Name: S. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.
as Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Associate
INDYMAC BANK, F.S.B.
as Seller and Master Servicer
By: /s/ S. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------------
Name: S. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President
SCHEDULE I
Mortgage Loan Schedule
[Delivered at Closing to Trustee]
S-I-1
SCHEDULE II
IndyMac MBS, Inc.
Mortgage Pass-Through Certificates,
Series 2001-A1
Representations and Warranties of the Seller/Master Servicer
Indy Mac Bank, F.S.B. ("IndyMac") hereby makes the representations and
warranties set forth in this Schedule II to the Depositor and the Trustee, as
of the Closing Date, or if so specified herein, as of the Cut-off Date.
Capitalized terms used but not otherwise defined in this Schedule II shall
have the meanings assigned thereto in the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement") relating to the above-referenced Series,
among IndyMac, as seller and master servicer, IndyMac MBS, Inc., as depositor,
and Bankers Trust Company of California, N.A., as trustee.
(1) IndyMac is duly organized as a federally insured savings
bank and is validly existing and in good standing under the laws of
the United States of America and is duly authorized and qualified to
transact any business contemplated by the Pooling and Servicing
Agreement to be conducted by IndyMac in any state in which a Mortgaged
Property is located or is otherwise not required under applicable law
to effect such qualification and, in any event, is in compliance with
the doing business laws of any such state, to the extent necessary to
ensure its ability to enforce each Mortgage Loan, to service the
Mortgage Loans in accordance with the Pooling and Servicing Agreement
and to perform any of its other obligations under the Pooling and
Servicing Agreement in accordance with the terms thereof.
(2) IndyMac has the full corporate power and authority to sell
and service each Mortgage Loan, and to execute, deliver and perform,
and to enter into and consummate the transactions contemplated by the
Pooling and Servicing Agreement and has duly authorized by all
necessary corporate action on the part of IndyMac the execution,
delivery and performance of the Pooling and Servicing Agreement; and
the Pooling and Servicing Agreement, assuming the due authorization,
execution and delivery thereof by the other parties thereto,
constitutes a legal, valid and binding obligation of IndyMac,
enforceable against IndyMac in accordance with its terms, except that
(a) the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, receivership and other similar laws relating
to creditors' rights generally and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
(3) The execution and delivery of the Pooling and Servicing
Agreement by IndyMac, the sale and servicing of the Mortgage Loans by
IndyMac under the Pooling and Servicing Agreement, the consummation of
any other of the transactions contemplated by the Pooling and
Servicing Agreement, and the fulfillment of or compliance with the
terms thereof are in the ordinary course of business of IndyMac and
will not (A) result in a material breach of any term or provision of
the
S-II-1
charter or by-laws of IndyMac or (B) materially conflict with, result
in a material breach, violation or acceleration of, or result in a
material default under, any other material agreement or instrument to
which IndyMac is a party or by which it may be bound, or (C)
constitute a material violation of any statute, order or regulation
applicable to IndyMac of any court, regulatory body, administrative
agency or governmental body having jurisdiction over IndyMac
(including the Office of Thrift Supervision, the Federal Deposit
Insurance Corporation or any other governmental entity having
regulatory authority over IndyMac); and IndyMac is not in breach or
violation of any material indenture or other material agreement or
instrument, or in violation of any statute, order or regulation of any
court, regulatory body, administrative agency or governmental body
having jurisdiction over it (including the Office of Thrift
Supervision, the Federal Deposit Insurance Corporation or any other
governmental entity having regulatory authority over IndyMac) which
breach or violation may materially impair IndyMac's ability to perform
or meet any of its obligations under the Pooling and Servicing
Agreement.
(4) IndyMac is an approved servicer of conventional mortgage
loans for FNMA or FHLMC or is a mortgagee approved by the Secretary of
Housing and Urban Development pursuant to Sections 203 and 211 of the
National Housing Act.
(5) No litigation is pending or, to the best of IndyMac's
knowledge, threatened against IndyMac that would prohibit the
execution or delivery of, or performance under, the Pooling and
Servicing Agreement by IndyMac.
S-II-2
SCHEDULE III
IndyMac MBS, Inc.
Mortgage Pass-Through Certificates,
Series 2001-A1
Representations and Warranties as to the Mortgage Loans
IndyMac Bank, F.S.B. ("IndyMac") hereby makes the representations and
warranties set forth in this Schedule III to the Depositor and the Trustee, as
of the Closing Date or Subsequent Transfer Date, as applicable, or if so
specified herein, as of the related Cut-off Date or date of origination of the
Mortgage Loan (as applicable). Capitalized terms used but not otherwise
defined in this Schedule III shall have the meanings assigned thereto in the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement")
relating to the above-referenced Series, among IndyMac, as seller and master
servicer, IndyMac MBS, Inc., as depositor, and Bankers Trust Company of
California, N.A., as trustee.
(1) The information set forth on Schedule I to the Pooling and
Servicing Agreement with respect to each Mortgage Loan is true and
correct in all material respects as of the Closing Date or Subsequent
Transfer Date, as applicable.
(2) As of the Closing Date, all regularly scheduled monthly
payments due with respect to each Mortgage Loan up to and including
the Due Date before the related Cut-off Date have been made; and as of
the related Cut-off Date, no Mortgage Loan had a regularly scheduled
monthly payment that was 60 or more days Delinquent during the twelve
months before the related Cut-off Date.
(3) With respect to any Mortgage Loan that is not a Cooperative
Loan, each Mortgage is a valid and enforceable first 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,
S-III-1
encumbrance or security interest and had full right and authority,
subject to no interest or participation of, or agreement with, any
other party, to sell and assign the same pursuant to the Pooling and
Servicing Agreement.
(5) As of the date of origination of each Mortgage Loan, there
was no delinquent tax or assessment lien against the related Mortgaged
Property.
(6) There is no valid offset, defense or counterclaim to any
Mortgage Note or Mortgage, including the obligation of the Mortgagor
to pay the unpaid principal of or interest on such Mortgage Note.
(7) There are no mechanics' liens or claims for work, labor or
material affecting any Mortgaged Property which are or may be a lien
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
(13) below.
(8) To the best of the Seller's knowledge, no Mortgaged
Property has been materially damaged by water, fire, earthquake,
windstorm, flood, tornado or similar casualty (excluding casualty from
the presence of hazardous wastes or hazardous substances, as to which
the Seller makes no representation) so as to affect adversely the
value of the related Mortgaged Property as security for the Mortgage
Loan.
(9) Each Mortgage Loan at origination complied in all material
respects with applicable state and federal laws, including usury,
equal credit opportunity, real estate settlement procedures,
truth-in-lending, and disclosure laws, or any noncompliance does not
have a material adverse effect on the value of the related Mortgage
Loan.
(10) As of the Closing Date or Subsequent Transfer Date, as
applicable, the Seller has not modified the Mortgage in any material
respect (except that a Mortgage Loan may have been modified by a
written instrument which has been recorded or submitted for
recordation, if necessary, to protect the interests of the
Certificateholders and which has been delivered to the Trustee);
satisfied, cancelled or subordinated such Mortgage in whole or in
part; released the related Mortgaged Property in whole or in part from
the lien of such Mortgage; or executed any instrument of release,
cancellation, modification or satisfaction with respect thereto.
(11) A lender's policy of title insurance together with a
condominium endorsement and extended coverage endorsement, if
applicable, in an amount at least equal to the Cut-off Date Principal
Balance of each such Mortgage Loan or a commitment (binder) to issue
the same was effective on the date of the origination of each Mortgage
Loan, each such policy is valid and remains in full force and effect.
(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.
S-III-2
(13) To the best of the Seller's knowledge, all of the
improvements which were included for the purpose of determining the
Appraised Value of the Mortgaged Property lie wholly within the
boundaries and building restriction lines of such property, and no
improvements on adjoining properties encroach upon the Mortgaged
Property, unless such failure to be wholly within such boundaries and
restriction lines or such encroachment, as the case may be, does not
have a material effect on the value of the Mortgaged Property.
(14) To the best of the Seller's knowledge, as of the date of
origination of each Mortgage Loan, no improvement located on or being
part of the Mortgaged Property is in violation of any applicable
zoning law or regulation unless such violation would not have a
material adverse effect on the value of the related Mortgaged
Property. To the best of the Seller's knowledge, all inspections,
licenses and certificates required to be made or issued with respect
to all occupied portions of the Mortgaged Property and, with respect
to the use and occupancy of the same, including certificates of
occupancy and fire underwriting certificates, have been made or
obtained from the appropriate authorities, unless the lack thereof
would not have a material adverse effect on the value of the Mortgaged
Property.
(15) The Mortgage Note and the related Mortgage are genuine,
and each is the legal, valid and binding obligation of the maker
thereof, enforceable in accordance with its terms and under applicable
law.
(16) The proceeds of the Mortgage Loan have been fully
disbursed and there is no requirement for future advances thereunder.
(17) The related Mortgage contains customary and enforceable
provisions which render the rights and remedies of the holder thereof
adequate for the realization against the Mortgaged Property of the
benefits of the security, including, (i) in the case of a Mortgage
designated as a deed of trust, by trustee's sale, and (ii) otherwise
by judicial foreclosure.
(18) With respect to each Mortgage constituting a deed of
trust, a trustee, duly qualified under applicable law to serve as
such, has been properly designated and currently so serves and is
named in such Mortgage, and no fees or expenses are or will become
payable by the Certificateholders to the trustee under the deed of
trust, except in connection with a trustee's sale after default by the
Mortgagor.
(19) At the related Cut-off Date, the improvements upon each
Mortgaged Property are covered by a valid and existing hazard
insurance policy with a generally acceptable carrier that provides for
fire and extended coverage and coverage for such other hazards as are
customarily required by institutional single family mortgage lenders
in the area where the Mortgaged Property is located, and the Seller
has received no notice that any premiums due and payable thereon have
not been paid; the Mortgage obligates the Mortgagor thereunder to
maintain all such insurance including flood insurance at the
Mortgagor's cost and expense. Anything to the contrary in this item
(19) notwithstanding, no breach of this item (19) shall be deemed to
give rise to any obligation of
S-III-3
the Seller to repurchase or substitute for such affected Mortgage Loan
or Loans so long as the Master Servicer maintains a blanket policy
pursuant to the second paragraph of Section 3.10(a) of the Pooling and
Servicing Agreement.
(20) If at the time of origination of each Mortgage Loan, the
related Mortgaged Property was in an area then identified in the
Federal Register by the Federal Emergency Management Agency as having
special flood hazards, a flood insurance policy in a form meeting the
then-current requirements of the Flood Insurance Administration is in
effect with respect to the Mortgaged Property with a generally
acceptable carrier.
(21) To the best of the Seller's knowledge, there is no
proceeding pending or threatened for the total or partial condemnation
of any Mortgaged Property, nor is such a proceeding currently
occurring.
(22) To the best of the Seller's knowledge, there is no
material event which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a material
non-monetary default, breach, violation or event of acceleration under
the Mortgage or the related Mortgage Note; and the Seller has not
waived any material non-monetary default, breach, violation or event
of acceleration.
(23) Each Mortgage File contains an appraisal of the related
Mortgaged Property in a form acceptable to FNMA or FHLMC.
(24) Any leasehold estate securing a Mortgage Loan has a stated
term at least as long as the term of the related Mortgage Loan.
(25) Each Mortgage Loan was selected from among the outstanding
fixed-rate one- to four-family mortgage loans in the Seller's
portfolio at the Closing Date as to which the representations and
warranties made with respect to the Mortgage Loans set forth in this
Schedule III can be made. No such selection was made in a manner
intended to adversely affect the interests of the Certificateholders.
(26) No more than 3.00% (by aggregate Stated Principal Balance)
of the Initial Mortgage Loans are Cooperative Loans.
(27) Each Cooperative Loan is secured by a valid, subsisting
and enforceable perfected first lien and security interest in the
related Mortgaged Property, subject only to (i) the rights of the
Cooperative Corporation to collect Maintenance and assessments from
the Mortgagor, (ii) the lien of the Blanket Mortgage on the
Cooperative Property and of real property taxes, water and sewer
charges, rents and assessments on the Cooperative Property not yet due
and payable, and (iii) other matters to which like Cooperative Units
are commonly subject which do not materially interfere with the
benefits of the security intended to be provided by the Security
Agreement or the use, enjoyment, value or marketability of the
Cooperative Unit. Each original UCC financing statement,
X-13
continuation statement or other governmental filing or recordation
necessary to create or preserve the perfection and priority of the
first priority lien and security interest in the Cooperative Shares
and Proprietary Lease has been timely and properly made. Any security
agreement, chattel mortgage or equivalent document related to the
Cooperative Loan and delivered to the sponsor or its designee
establishes in the Seller a valid and subsisting perfected first lien
on and security interest in the property described therein, and the
Seller has full right to sell and assign the same.
(28) Each Cooperative Corporation qualifies as a "cooperative
housing corporation" as defined in Section 216 of the Code.
S-III-5
SCHEDULE IV
PLANNED BALANCE SCHEDULES
[Not applicable]
S-IV-1
EXHIBIT A
[FORM OF SENIOR CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Certificate Balance
of this Certificate
("Denomination") : $
Initial Certificate Balances
of all Certificates
of this Class : $
CUSIP :
INDYMAC MBS, INC.
Mortgage Pass-Through Certificates, Series 200_-_
Class [________]
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to a Trust
Fund consisting primarily of a pool of conventional mortgage loans
(the "Mortgage Loans") secured by first liens on one- to four-family
residential properties.
A-1
IndyMac MBS, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Seller, the Master Servicer or the Trustee referred to below or
any of their respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or instrumentality.
This certifies that __________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate Initial Certificate Balances
of all Certificates of the Class to which this Certificate belongs) in certain
monthly distributions with respect to a Trust Fund consisting primarily of the
Mortgage Loans deposited by IndyMac MBS, Inc. (the "Depositor"). The Trust
Fund was created pursuant to a Pooling and Servicing Agreement dated as of the
Cut-off Date specified above (the "Agreement") among the Depositor, IndyMac
Bank, F.S.B., as seller (in such capacity, the "Seller") and as master
servicer (in such capacity, the "Master Servicer"), and The Bank of New York,
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 countersigned by an
authorized signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
THE BANK OF NEW YORK,
as Trustee
By ______________________
Countersigned:
By ___________________________
Authorized Signatory of
THE BANK OF NEW YORK,
as Trustee
A-2
EXHIBIT B
[FORM OF SUBORDINATED CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES
AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSE OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES UNDER THE CODE
TO THIS CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS _____, 200_. THE
INITIAL PER ANNUM RATE OF INTEREST ON THIS CERTIFICATE IS __%. ASSUMING THAT
THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT OF __% PER ANNUM
(THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH $____ OF
OID PER $1,000 OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS CERTIFICATE; THE
ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE FOR PURPOSES OF COMPUTING THE
ACCRUAL OF OID IS APPROXIMATELY __% (COMPOUNDED MONTHLY); THE AMOUNT OF OID
ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD IS $____ PER $1,000 OF THE
ORIGINAL PRINCIPAL AMOUNT OF THIS CERTIFICATE COMPUTED USING THE MONTHLY YIELD
AND DAILY COMPOUNDING DURING THE SHORT ACCRUAL PERIOD. NO REPRESENTATION IS
MADE THAT THE MORTGAGE LOANS WILL PREPAY AT A RATE BASED ON THE PREPAYMENT
ASSUMPTION OR AT ANY OTHER RATE. THE ACTUAL YIELD TO MATURITY MAY DIFFER FROM
THAT SET FORTH ABOVE, AND THE ACCRUAL OF OID WILL BE ADJUSTED, IN ACCORDANCE
WITH SECTION 1272(a)(6) OF THE CODE, TO TAKE INTO ACCOUNT EVENTS WHICH HAVE
OCCURRED DURING ANY ACCRUAL PERIOD. THE PREPAYMENT ASSUMPTION IS INTENDED TO
BE THE PREPAYMENT ASSUMPTION REFERRED TO IN SECTION 1272(a)(6)(B)(iii) OF THE
CODE.]
B-1
[THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.]
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE REPRESENTS TO THE TRUSTEE THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE
BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR, IF
SUCH PURCHASER IS AN INSURANCE COMPANY, A REPRESENTATION IN ACCORDANCE WITH
THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN, OR DELIVERS TO THE TRUSTEE
AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT
REFERRED TO HEREIN. [SUCH REPRESENTATION SHALL BE DEEMED TO HAVE BEEN MADE TO
THE TRUSTEE BY THE TRANSFEREE'S ACCEPTANCE OF A CERTIFICATE OF THIS CLASS AND
BY A BENEFICIAL OWNER'S ACCEPTANCE OF ITS INTEREST IN A CERTIFICATE OF THIS
CLASS.] NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED
TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN
SUBJECT TO ERISA OR TO THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO
THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
B-2
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Certificate Balance
of this Certificate
("Denomination") : $
Initial Certificate Balances
of all Certificates
of this Class : $
INDYMAC MBS, INC.
Residential Asset Securitization Trust 200_-_
Mortgage Pass-Through Certificates, Series 200_-_
Class [___]
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to a Trust
Fund consisting primarily of a pool of conventional mortgage loans
(the "Mortgage Loans") secured by first liens on one- to four-family
residential properties.
IndyMac MBS, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Seller, the Master Servicer or the Trustee referred to below or
any of their respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or instrumentality.
This certifies that ______________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate Initial Certificate Balances
of the denominations of all Certificates of the Class to which this
Certificate belongs) in certain monthly distributions with respect to a Trust
Fund consisting primarily of the Mortgage Loans deposited by IndyMac MBS, Inc.
(the "Depositor"). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement") among the Depositor, IndyMac Bank, F.S.B., as seller (in such
capacity, the "Seller"), and as master servicer (in such capacity, the "Master
Servicer"), and The Bank of New York, 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.
B-3
[No transfer of a Certificate of this Class shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under said Act and such laws. In the event that a
transfer is to be made in reliance upon an exemption from the Securities Act
and such laws, in order to assure compliance with the Securities Act and such
laws, the Certificateholder desiring to effect such transfer and such
Certificateholder's prospective transferee shall each certify to the Trustee
in writing the facts surrounding the transfer. In the event that such a
transfer is to be made within three years from the date of the initial
issuance of Certificates pursuant hereto, there shall also be delivered
(except in the case of a transfer pursuant to Rule 144A of the Securities Act)
to the Trustee an Opinion of Counsel that such transfer may be made pursuant
to an exemption from the Securities Act and such state securities laws, which
Opinion of Counsel shall not be obtained at the expense of the Trustee, the
Seller, the Master Servicer or the Depositor. The Holder hereof desiring to
effect such transfer shall, and does hereby agree to, indemnify the Trustee
and the Depositor against any liability that may result if the transfer is not
so exempt or is not made in accordance with such federal and state laws.]
No transfer of a Certificate of this Class shall be made unless the
Trustee shall have received either (i) a representation [letter] from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan subject to Section 406 of ERISA or Section 4975 of the
Code, nor a person acting on behalf of any such plan, which representation
letter shall not be an expense of the Trustee or the Master Servicer, (ii) if
the purchaser is an insurance company, a representation that the purchaser is
an insurance company which is purchasing such Certificates with funds
contained in an "insurance company general account" (as such term is defined
in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE
95-60")) and that the purchase and holding of such Certificates are covered
under PTCE 95-60 or (iii) in the case of any such Certificate presented for
registration in the name of an employee benefit plan subject to ERISA or
Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee of any such plan or any other person acting on
behalf of any such plan, an Opinion of Counsel satisfactory to the Trustee and
the Master Servicer to the effect that the purchase or holding of such
Certificate will not result in the assets of the Trust Fund being deemed to be
"plan assets" and subject to the prohibited transaction provisions of ERISA
and the Code and will not subject the Trustee to any obligation in addition to
those undertaken in the Agreement, which Opinion of Counsel shall not be an
expense of the Trustee or the Master Servicer. [Such representation shall be
deemed to have been made to the Trustee by the Transferee's acceptance of a
Certificate of this Class and by a beneficial owner's acceptance of its
interest in a Certificate of this Class.] Notwithstanding anything else to the
contrary herein, any purported transfer of a Certificate of this Class to or
on behalf of an employee benefit plan subject to ERISA or to the Code without
the opinion of counsel satisfactory to the Trustee as described above shall be
void and of no effect.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
B-4
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
THE BANK OF NEW YORK,
as Trustee
By ______________________
Countersigned:
By ___________________________
Authorized Signatory of
THE BANK OF NEW YORK,
as Trustee
B-5
EXHIBIT C
[FORM OF RESIDUAL CERTIFICATE]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
[THIS CERTIFICATE REPRESENTS THE "TAX MATTERS PERSON RESIDUAL INTEREST" ISSUED
UNDER THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW AND MAY NOT BE
TRANSFERRED TO ANY PERSON EXCEPT IN CONNECTION WITH THE ASSUMPTION BY THE
TRANSFEREE OF THE DUTIES OF THE SERVICER UNDER SUCH AGREEMENT.]
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE REPRESENTS TO THE TRUSTEE THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE
BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR, IF
SUCH PURCHASER IS AN INSURANCE COMPANY, A REPRESENTATION IN ACCORDANCE WITH
THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN, OR DELIVERS TO THE TRUSTEE
AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT
REFERRED TO HEREIN. [SUCH REPRESENTATION SHALL BE DEEMED TO HAVE BEEN MADE TO
THE TRUSTEE BY THE TRANSFEREE'S ACCEPTANCE OF A CERTIFICATE OF THIS CLASS AND
BY A BENEFICIAL OWNER'S ACCEPTANCE OF ITS INTEREST IN A CERTIFICATE OF THIS
CLASS.] NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED
TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN
SUBJECT TO ERISA OR TO THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO
THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
C-1
Certificate No. :
Cut-off Date :
Initial Certificate Balance
of this Certificate
("Denomination") : $
Initial Certificate Balances
of all Certificates of
this Class : $
CUSIP :
INDYMAC MBS, INC.
Residential Asset Securitization Trust 200_-_
Mortgage Pass-Through Certificates, Series 200_-_
evidencing the distributions allocable to the Class A-R Certificates
with respect to a Trust Fund consisting primarily of a pool of
conventional mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties.
IndyMac MBS, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Seller, the Master Servicer or the Trustee referred to below or
any of their respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or instrumentality.
This certifies that _____________ is the registered owner of the
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Initial Certificate Balances of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain
monthly distributions with respect to a Trust Fund consisting of the Mortgage
Loans deposited by IndyMac MBS, Inc. (the "Depositor"). The Trust Fund was
created pursuant to a Pooling and Servicing Agreement dated as of the Cut-off
Date specified above (the "Agreement") among the Depositor, IndyMac Bank,
F.S.B., as seller (in such capacity, the "Seller") and as master servicer (in
such capacity, the "Master Servicer"), and The Bank of New York, 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.
C-2
Any distribution of the proceeds of any remaining assets of the Trust
Fund will be made only upon presentment and surrender of this Class A-R
Certificate at the Corporate Trust Office or the office or agency maintained
by the Trustee in New York, New York.
No transfer of a Class A-R Certificate shall be made unless the
Trustee shall have received either (i) a representation [letter] from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan subject to Section 406 of ERISA or Section 4975 of the
Code, nor a person acting on behalf of any such plan, which representation
letter shall not be an expense of the Trustee or the Master Servicer, (ii) if
the purchaser is an insurance company, a representation that the purchaser is
an insurance company which is purchasing such Certificate with funds contained
in an "insurance company general account" (as such term is defined in Section
V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that
the purchase and holding of such Certificate are covered under PTCE 95-60 or
(iii) in the case of any such Certificate presented for registration in the
name of an employee benefit plan subject to ERISA or Section 4975 of the Code
(or comparable provisions of any subsequent enactments), or a trustee of any
such plan or any other person acting on behalf of any such plan, an Opinion of
Counsel satisfactory to the Trustee and the Master Servicer to the effect that
the purchase or holding of such Class A-R Certificate will not result in the
assets of the Trust Fund being deemed to be "plan assets" and subject to the
prohibited transaction provisions of ERISA and the Code and will not subject
the Trustee to any obligation in addition to those undertaken in the
Agreement, which Opinion of Counsel shall not be an expense of the Trustee or
the Master Servicer. [Such representation shall be deemed to have been made to
the Trustee by the Transferee's acceptance of this Class A-R Certificate and
by a beneficial owner's acceptance of its interest in such Certificate.]
Notwithstanding anything else to the contrary herein, any purported transfer
of a Class A-R Certificate to or on behalf of an employee benefit plan subject
to ERISA or to the Code without the opinion of counsel satisfactory to the
Trustee as described above shall be void and of no effect.
Each Holder of this Class A-R Certificate will be deemed to have
agreed to be bound by the restrictions of the Agreement, including but not
limited to the restrictions that (i) each person holding or acquiring any
Ownership Interest in this Class A-R Certificate must be a Permitted
Transferee, (ii) no Ownership Interest in this Class A-R Certificate may be
transferred without delivery to the Trustee of (a) a transfer affidavit of the
proposed transferee and (b) a transfer certificate of the transferor, each of
such documents to be in the form described in the Agreement, (iii) each person
holding or acquiring any Ownership Interest in this Class A-R Certificate must
agree to require a transfer affidavit and to deliver a transfer certificate to
the Trustee as required pursuant to the Agreement, (iv) each person holding or
acquiring an Ownership Interest in this Class A-R Certificate must agree not
to transfer an Ownership Interest in this Class A-R Certificate if it has
actual knowledge that the proposed transferee is not a Permitted Transferee
and (v) any attempted or purported transfer of any Ownership Interest in this
Class A-R Certificate in violation of such restrictions will be absolutely
null and void and will vest no rights in the purported transferee.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
C-3
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
THE BANK OF NEW YORK,
as Trustee
By ______________________
Countersigned:
By ___________________________
Authorized Signatory of
THE BANK OF NEW YORK,
as Trustee
C-4
EXHIBIT D
[FORM OF NOTIONAL AMOUNT CERTIFICATE]
[SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").]
THIS CERTIFICATE HAS NO PRINCIPAL BALANCE AND IS NOT ENTITLED TO ANY
DISTRIBUTIONS IN RESPECT OF PRINCIPAL.
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSE OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES UNDER THE CODE
TO THIS CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS __________, 200_.
THE INITIAL PER ANNUM RATE OF INTEREST ON THIS CERTIFICATE IS ____%. ASSUMING
THAT THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT OF ____% PER
ANNUM (THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH
$__________ OF OID ON THE INITIAL POOL STATED PRINCIPAL BALANCE; THE ANNUAL
YIELD TO MATURITY OF THIS CERTIFICATE FOR PURPOSES OF COMPUTING THE ACCRUAL OF
OID IS APPROXIMATELY ____% (COMPOUNDED MONTHLY); THE AMOUNT OF OID ALLOCABLE
TO THE SHORT FIRST ACCRUAL PERIOD IS $__________ ON THE INITIAL POOL STATED
PRINCIPAL BALANCE; AND THE METHOD USED TO CALCULATE THE ANNUAL YIELD TO
MATURITY AND THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD IS
THE EXACT METHOD AS DEFINED IN PROPOSED TREASURY REGULATIONS. NO
REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT A RATE BASED ON
THE PREPAYMENT ASSUMPTION OR AT ANY OTHER RATE. THE ACTUAL YIELD TO MATURITY
MAY DIFFER FROM THAT SET FORTH ABOVE, AND THE ACCRUAL OF OID WILL BE ADJUSTED,
IN ACCORDANCE WITH SECTION 1272(a)(6) OF THE CODE, TO TAKE INTO ACCOUNT EVENTS
WHICH HAVE OCCURRED DURING ANY ACCRUAL PERIOD. THE PREPAYMENT ASSUMPTION IS
INTENDED TO BE THE PREPAYMENT ASSUMPTION REFERRED TO IN SECTION
1272(a)(6)(B)(iii) OF THE CODE.]
D-1
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Notional Amount
of this Certificate
("Denomination") :
Initial Notional Amount
of all Certificates
of this Class :
CUSIP :
INDYMAC MBS, INC.
Residential Asset Securitization Trust 200_-_
Mortgage Pass-Through Certificates, Series 200_-_
evidencing the distributions allocable to the Class X Certificates
with respect to a Trust Fund consisting primarily of a pool of
conventional mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties.
IndyMac MBS, Inc., as Depositor
This Certificate does not evidence an obligation of, or an interest
in, and is not guaranteed by the Depositor, the Seller, the Master Servicer or
the Trustee referred to below or any of their respective affiliates. Neither
this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that is the registered owner of the Percentage Interest
evidenced by this Certificate specified above in certain monthly distributions
with respect to a Trust Fund consisting primarily of the Mortgage Loans
deposited by IndyMac MBS, Inc. (the "Depositor"). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of Cut-off Date
specified above (the "Agreement") among the Depositor, IndyMac Bank, F.S.B.,
as seller (in such capacity, the "Seller") and as master servicer (in such
capacity, the "Master Servicer"), and The Bank of New York, 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.
D-2
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
THE BANK OF NEW YORK,
as Trustee
By ______________________
Countersigned:
By ___________________________
Authorized Signatory of
THE BANK OF NEW YORK,
as Trustee
D-3
EXHIBIT E
[Form of Reverse of Certificates]
INDYMAC MBS, INC.
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as IndyMac MBS, Inc. Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account
for payment hereunder and that the Trustee is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is the last Business Day of the month
next preceding the month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days
prior to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any
time by the Depositor, the Master Servicer and the Trustee with the consent of
the Holders of Certificates affected by such amendment evidencing
E-1
the requisite Percentage Interest, as provided in the Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange therefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office or the office or agency
maintained by the Trustee in New York, New York, accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Certificate
Registrar duly executed by the holder hereof or such holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust Fund will be issued to the designated transferee or
transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Seller and the Trustee and any
agent of the Depositor or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and neither
the Depositor, the Trustee, nor any such agent shall be affected by any notice
to the contrary.
On any Distribution Date on which the Pool Stated Principal Balance is
less than 10% of the Cut-off Date Pool Principal Balance, the Master Servicer
will have the option to repurchase, in whole, from the Trust Fund all
remaining Mortgage Loans and all property acquired in respect of the Mortgage
Loans at a purchase price determined as provided in the Agreement. In the
event that no such optional termination occurs, the obligations and
responsibilities created by the Agreement will terminate upon the later of the
maturity or other liquidation (or any advance with respect thereto) of the
last Mortgage Loan remaining in the Trust Fund or the disposition of all
property in respect thereof and the distribution to Certificateholders of all
amounts required to be distributed pursuant to the Agreement. In no event,
however, will the trust created by the Agreement continue beyond the
expiration of 21 years from the death of the last survivor of the descendants
living at the date of the Agreement of a certain person named in the
Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
E-2
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
____________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
.
Dated:
_______________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to
,
,
for the account of ,
account number , or, if mailed by check, to
. Applicable statements should be mailed to
,
.
This information is provided by______________________,
E-3
the assignee named above, or ,
as its agent.
E-4
EXHIBIT F
FORM OF INITIAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Master Servicer]
[Seller]
_____________________
_____________________
Re: Pooling and Servicing Agreement among IndyMac MBS, Inc.,
as Depositor, IndyMac Bank, F.S.B., as Seller and Master
Servicer, and The Bank of New York, as Trustee, Mortgage
Pass-Through Certificates,
Series 200 -
--------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned,
as Trustee, hereby certifies that, as to each Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Mortgage Loan listed in the attached
schedule), it has received:
(i) the original Mortgage Note, endorsed as provided in the following
form: "Pay to the order of ________, without recourse"; and
(ii) a duly executed assignment of the Mortgage (which may be included
in a blanket assignment or assignments); provided, however, that it has received
no assignment with respect to any Mortgage for which the related Mortgaged
Property is located in the Commonwealth of Puerto Rico.
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to such
Mortgage Loan.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Trustee makes no representations as to:
(i) the validity, legality, sufficiency, enforceability or genuineness of any
of the documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan.
F-1
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
THE BANK OF NEW YORK,
as Trustee
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
F-2
EXHIBIT G
FORM OF DELAY DELIVERY CERTIFICATION (INITIAL MORTGAGE LOANS)
[date]
[Depositor]
[Master Servicer]
[Seller]
____________________
____________________
Re: Pooling and Servicing Agreement among
IndyMac MBS, Inc., as Depositor, Countrywide
Home Loans, Inc., as Seller and Master
Servicer, and The Bank of New York, as Trustee,
Mortgage Pass-Through Certificates, Series 2000-3
-------------------------------------------------
Gentlemen:
Reference is made to the Initial Certification of Trustee relating to
the above-referenced series, with the schedule of exceptions attached thereto
(the "Schedule A"), delivered by the undersigned, as Trustee, on the Closing
Date in accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"). The undersigned
hereby certifies that, as to each Delay Delivery Initial Mortgage Loan listed
on Schedule A attached hereto (other than any Initial Mortgage Loan paid in
full or listed on Schedule B attached hereto) it has received:
(i) the original Mortgage Note, endorsed by the Seller or the
originator of such Mortgage Loan, without recourse in the
following form: "Pay to the order of _______________ without
recourse", with all intervening endorsements that show a
complete chain of endorsement from the originator to the
Seller, or, if the original Mortgage Note has been lost or
destroyed and not replaced, an original lost note affidavit
from the Seller, stating that the original Mortgage Note was
lost or destroyed, together with a copy of the related
Mortgage Note;
(ii) in the case of each Initial Mortgage Loan that is not a MERS
Mortgage Loan, the original recorded Mortgage, [and in the
case of each Initial Mortgage Loan that is a MERS Mortgage
Loan, the original Mortgage, noting thereon the presence of
the MIN of the Initial Mortgage Loan and language indicating
that the Initial Mortgage Loan is a MOM Loan if the Initial
Mortgage Loan is a MOM Loan, with evidence of recording
indicated thereon, or a copy of the Mortgage certified by the
public recording office in which such Mortgage has been
recorded];
G-1
(iii) in the case of each Initial Mortgage Loan that is not a MERS
Mortgage Loan, a duly executed assignment of the Mortgage to
"The Bank of New York, as trustee under the Pooling and
Servicing Agreement dated as of May 1, 2000, without
recourse", or, in the case of each Initial Mortgage Loan with
respect to property located in the State of California that is
not a MERS Mortgage Loan, a duly executed assignment of the
Mortgage in blank (each such assignment, when duly and validly
completed, to be in recordable form and sufficient to effect
the assignment of and transfer to the assignee thereof, under
the Mortgage to which such assignment relates);
(iv) the original recorded assignment or assignments of the
Mortgage together with all interim recorded assignments of
such Mortgage [(noting the presence of a MIN in the case of
each MERS Mortgage Loan)];
(v) the original or copies of each assumption, modification,
written assurance or substitution agreement, if any, with
evidence of recording thereon if recordation thereof is
permissible under applicable law; and
(vi) the original or duplicate original lender's title policy and
all riders thereto or, in the event such original title policy
has not been received from the insurer, any one of an original
title binder, an original preliminary title report or an
original title commitment, or a copy thereof certified by the
title company, with the original policy of title insurance to
be delivered within one year of the Closing Date.
In the event that in connection with any Mortgage Loan that is not a
MERS Mortgage Loan the Seller cannot deliver the original recorded Mortgage or
all interim recorded assignments of the Mortgage satisfying the requirements
of clause (ii), (iii) or (iv), as applicable, the Trustee has received, in
lieu thereof, a true and complete copy of such Mortgage and/or such assignment
or assignments of the Mortgage, as applicable, each certified by the Seller,
the applicable title company, escrow agent or attorney, or the originator of
such Initial Mortgage Loan, as the case may be, to be a true and complete copy
of the original Mortgage or assignment of Mortgage submitted for recording.
Based on its review and examination and only as to the foregoing
documents, (i) such documents appear regular on their face and related to such
Initial Mortgage Loan, and (ii) the information set forth in items (i), (iv),
(v), (vi), (viii), (xi) and (xiv) of the definition of the "Mortgage Loan
Schedule" in Section 1.01 of the Pooling and Servicing Agreement accurately
reflects information set forth in the Mortgage File.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any
of the Initial Mortgage Loans identified on the [Mortgage Loan Schedule][Loan
Number and Borrower Identification Mortgage Loan Schedule] or (ii) the
collectibility, insurability, effectiveness or suitability of any such
Mortgage Loan.
G-2
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
THE BANK OF NEW YORK,
as Trustee
By:
---------------------------------
Name:
Title:
G-3
EXHIBIT H
FORM OF FINAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Master Servicer]
[Seller]
____________________
____________________
Re: Pooling and Servicing Agreement among IndyMac MBS, Inc.,
as Depositor, IndyMac Bank, F.S.B., as Seller and Master
Servicer, and The Bank of New York, as Trustee, Mortgage
Pass-Through Certificates, Series 200 -
-----------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned,
as Trustee, hereby certifies that as to each Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Mortgage Loan paid in full or listed on
the attached Document Exception Report) it has received:
(i) The original Mortgage Note, endorsed in the form provided in Section
2.01(c) of the Pooling and Servicing Agreement, with all intervening
endorsements showing a complete chain of endorsement from the originator to the
Seller.
(ii) The original recorded Mortgage.
(iii) A duly executed assignment of the Mortgage in the form provided in
Section 2.01(c) of the Pooling and Servicing Agreement; provided, however, that
it has received no assignment with respect to any Mortgage for which the related
Mortgaged Property is located in the Commonwealth of Puerto Rico, or, if the
Depositor has certified or the Trustee otherwise knows that the related Mortgage
has not been returned from the applicable recording office, a copy of the
assignment of the Mortgage (excluding information to be provided by the
recording office).
(iv) The original or duplicate original recorded assignment or
assignments of the Mortgage showing a complete chain of assignment from the
originator to the Seller.
H-1
(v) The original or duplicate original lender's title policy and all
riders thereto or, any one of an original title binder, an original preliminary
title report or an original title commitment, or a copy thereof certified by the
title company.
Based on its review and examination and only as to the foregoing
documents, (a) such documents appear regular on their face and related to such
Mortgage Loan, and (b) the information set forth in items (i), (ii), (iii),
(iv), (vi) and (xi) of the definition of the "Mortgage Loan Schedule" in
Section 1.01 of the Pooling and Servicing Agreement accurately reflects
information set forth in the Mortgage File.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Trustee makes no representations as to:
(i) the validity, legality, sufficiency, enforceability or genuineness of any
of the documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan.
Notwithstanding anything herein to the contrary, the Trustee has made no
determination and makes no representations as to whether (i) any endorsement
is sufficient to transfer all right, title and interest of the party so
endorsing, as noteholder or assignee thereof, in and to that Mortgage Note or
(ii) any assignment is in recordable form or sufficient to effect the
assignment of and transfer to the assignee thereof, under the Mortgage to
which the assignment relates.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
THE BANK OF NEW YORK,
as Trustee
By :
----------------------------
Name:
---------------------------
Title:
--------------------------
H-2
EXHIBIT I
TRANSFER AFFIDAVIT
IndyMac MBS, Inc.
Mortgage Pass-Through Certificates
Series 200_-_
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"), relating to the above-referenced Series, by and among IndyMac
MBS, Inc., as depositor (the "Depositor"), IndyMac Bank, F.S.B., as seller and
master servicer and The Bank of New York, as Trustee. Capitalized terms used,
but not defined herein or in Exhibit 1 hereto, shall have the meanings
ascribed to such terms in the Agreement. The Transferee has authorized the
undersigned to make this affidavit on behalf of the Transferee.
2. The Transferee is, as of the date hereof, and will be, as of the
date of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate for its own account.
3. The Transferee has been advised of, and understands that (i) a tax
will be imposed on Transfers of the Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability
for the tax if the subsequent Transferee furnished to such Person an affidavit
that such subsequent Transferee is a Permitted Transferee and, at the time of
Transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax will
be imposed on a "pass-through entity" holding the Certificate if at any time
during the taxable year of the pass-through entity a Person that is not a
Permitted Transferee is the record holder of an interest in such entity. The
Transferee understands that such tax will not be imposed for any period with
respect to which the record holder furnishes to the pass-through entity an
affidavit that such record holder is a Permitted Transferee and the
pass-through entity does not have actual knowledge that such affidavit is
false. (For this purpose, a "pass-through entity" includes a regulated
investment company, a real estate investment trust or common trust fund, a
I-1
partnership, trust or estate, and certain cooperatives and, except as may be
provided in Treasury Regulations, persons holding interests in pass-through
entities as a nominee for another Person.)
5. The Transferee has reviewed the provisions of Section 5.02(c) of
the Agreement (attached hereto as Exhibit 2 and incorporated herein by
reference) and understands the legal consequences of the acquisition of an
Ownership Interest in the Certificate including, without limitation, the
restrictions on subsequent Transfers and the provisions regarding voiding the
Transfer and mandatory sales. The Transferee expressly agrees to be bound by
and to abide by the provisions of Section 5.02(c) of the Agreement and the
restrictions noted on the face of the Certificate. The Transferee understands
and agrees that any breach of any of the representations included herein shall
render the Transfer to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any
Person to whom the Transferee attempts to Transfer its Ownership Interest in
the Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth as Exhibit J to the Agreement (a "Transferor Certificate") to
the effect that such Transferee has no actual knowledge that the Person to
which the Transfer is to be made is not a Permitted Transferee.
7. The Transferee does not have the intention to impede the assessment
or collection of any tax legally required to be paid with respect to the
Certificate.
8. The Transferee's taxpayer identification number is __________.
9. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
10. The Transferee is aware that the Certificate may be a "noneconomic
residual interest" within the meaning of proposed Treasury regulations
promulgated pursuant to the Code and that the transferor of a noneconomic
residual interest will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the
transfer was to impede the assessment or collection of tax.
11. The Transferee is not an employee benefit plan that is subject to
ERISA or a plan that is subject to Section 4975 of the Code, and the
Transferee is not acting on behalf of such a plan.
* * *
I-2
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by
its duly authorized officer and its corporate seal to be hereunto affixed,
duly attested, this day of , 20 .
-----------------------------
Print Name of Transferee
By:
------------------------------
Name:
Title:
[Corporate Seal]
ATTEST:
--------------------------
[Assistant] Secretary
Personally appeared before me the above-named _________, known or
proved to me to be the same person who executed the foregoing instrument and
to be the _____________ of the Transferee, and acknowledged that he executed
the same as his free act and deed and the free act and deed of the Transferee.
Subscribed and sworn before me this ______ day of ___________, 20__.
-----------------------
NOTARY PUBLIC
My Commission expires the
day of , 20 .
I-3
EXHIBIT 1
to EXHIBIT I
Certain Definitions
-------------------
"Ownership Interest": As to any Certificate, any ownership interest in
such Certificate, including any interest in such Certificate as the Holder
thereof and any other interest therein, whether direct or indirect, legal or
beneficial.
"Permitted Transferee": Any Person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality
of any of the foregoing, (ii) a foreign government, International Organization
or any agency or instrumentality of either of the foregoing, (iii) an
organization (except certain farmers' cooperatives described in Code Section
521) which is exempt from tax imposed by Chapter 1 of the Code (including the
tax imposed by Code Section 511 on unrelated business taxable income) on any
excess inclusions (as defined in Code Section 860E(c)(1)) with respect to any
Class A-R Certificate, (iv) rural electric and telephone cooperatives
described in Code Section 1381(a)(2)(c), (v) a Person that is not a citizen or
resident of the United States, a corporation, partnership, or other entity
created or organized in or under the laws of the United States or any
political subdivision thereof, or an estate or trust whose income from sources
without the United States is includible in gross income for federal income tax
purposes regardless of its connection with the conduct of a trade or business
within the United States, and (vi) any other Person so designated by the
Trustee based upon an Opinion of Counsel that the Transfer of an Ownership
Interest in a Class A-R Certificate to such Person may cause the Trust Fund to
fail to qualify as a REMIC at any time that certain Certificates are
Outstanding. The terms "United States," "State" and "International
Organization" shall have the meanings set forth in Code Section 7701 or
successor provisions. A corporation will not be treated as an instrumentality
of the United States or of any State or political subdivision thereof if all
of its activities are subject to tax, and, with the exception of the FHLMC, a
majority of its board of directors is not selected by such governmental unit.
"Person": Any individual, corporation, partnership, joint venture,
bank, joint stock company, trust (including any beneficiary thereof),
unincorporated organization or government or any agency or political
subdivision thereof.
"Transfer": Any direct or indirect transfer or sale of any Ownership
Interest in a Certificate, including the acquisition of a Certificate by the
Depositor.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
I-4
EXHIBIT 2
to EXHIBIT I
Section 5.02(c) of the Agreement
--------------------------------
(c) Each Person who has or who acquires any Ownership Interest
in a Class A-R 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 Class A-R Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in
a Class A-R Certificate shall be a Permitted Transferee and
shall promptly notify the Trustee of any change or impending
change in its status as a Permitted Transferee.
(ii) No Ownership Interest in a Class A-R Certificate may be
registered on the Closing Date or thereafter transferred, and the
Trustee shall not register the Transfer of any Class A-R Certificate
unless, in addition to the certificates required to be delivered to
the Trustee under subparagraph (b) above, the Trustee shall have been
furnished with an affidavit (a "Transfer Affidavit") of the initial
owner or the proposed transferee in the form attached hereto as
Exhibit I.
(iii) Each Person holding or acquiring any Ownership Interest in a
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 in a Class A-R Certificate, (B) to obtain a
Transfer Affidavit from any Person for whom such Person is acting as
nominee, trustee or agent in connection with any Transfer of a Class
A-R Certificate and (C) not to Transfer its Ownership Interest in a
Class A-R Certificate or to cause the Transfer of an Ownership
Interest in a Class A-R Certificate to any other Person if it has
actual knowledge that such Person is not a Permitted Transferee.
(iv) Any attempted or purported Transfer of any Ownership Interest
in a Class A-R 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 Class A-R 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 Class A-R
Certificate. The Trustee shall be under no liability to any Person for
any registration of Transfer of a Class A-R 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 either the Rule 144A Letter or the Investment Letter.
The Trustee shall be entitled but not obligated to recover from any
Holder of a Class A-R Certificate that was in fact not a Permitted
Transferee at the time it became a Holder or, at such subsequent time
as it became other than a Permitted Transferee, all payments made on
such Class A-R Certificate at and after either such time. Any such
payments so
I-5
recovered by the Trustee shall be paid and delivered by the Trustee to
the last preceding Permitted Transferee of such Certificate.
(v) The Depositor shall use its best efforts to make available,
upon receipt of written request from the Trustee, all
information necessary to compute any tax imposed under Section
860E(e) of the Code as a result of a Transfer of an Ownership
Interest in a Class A-R Certificate to any Holder who is not a
Permitted Transferee.
I-6
J-1
EXHIBIT J
FORM OF TRANSFEROR CERTIFICATE
__________, 200__
IndyMac MBS, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: S. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Mortgage-Backed Securities Group Series 200 -
Re: IndyMac MBS, Inc. Mortgage Pass-Through Certificates,
Series 200 - , Class
-----------------------------------
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we
certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being
disposed by us in a transaction that is exempt from the registration
requirements of the Act, (b) we have not offered or sold any Certificates to,
or solicited offers to buy any Certificates from, any person, or otherwise
approached or negotiated with any person with respect thereto, in a manner
that would be deemed, or taken any other action which would result in, a
violation of Section 5 of the Act and (c) to the extent we are disposing of a
Class A-R Certificate, we have no knowledge the Transferee is not a Permitted
Transferee.
Very truly yours,
---------------------------
Print Name of Transferor
By:
--------------------------
Authorized Officer
J-1
EXHIBIT K
FORM OF INVESTMENT LETTER (NON-RULE 144A)
__________, 200__
IndyMac MBS, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: S. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Mortgage-Backed Securities Group Series 200 -
Re: IndyMac MBS, Inc. Mortgage Pass-Through Certificates,
Series 200 - , Class
----------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is
exempt from the registration requirements of the Act and any such laws, (b) we
are an "accredited investor," as defined in Regulation D under the Act, and
have such knowledge and experience in financial and business matters that we
are capable of evaluating the merits and risks of investments in the
Certificates, (c) we have had the opportunity to ask questions of and receive
answers from the Depositor concerning the purchase of the Certificates and all
matters relating thereto or any additional information deemed necessary to our
decision to purchase the Certificates, (d) either (i) we are not an employee
benefit plan that is subject to the Employee Retirement Income Security Act of
1974, as amended, or a plan or arrangement that is subject to Section 4975 of
the Internal Revenue Code of 1986, as amended, nor are we acting on behalf of
any such plan or arrangement nor are we using the assets of any such plan or
arrangement to effect such acquisition or (ii)if we are an insurance company,
a representation that we are an insurnace company which is purchaseing such
Certificates with funds contained in an "insurance company general account"
(as such term is defined in Section V(e) of Prohibited Transaction Class
Exemption 95-60 ("PTCE 95-60")) and that the purchase and holding of such
Certificates are covered under PTCE 95-60, (e) if an insurance company, we are
purchasing the Certificates with funds contained in an "insurance company
general account" (as defined in Section V(e) of Prohibited Transaction Class
Exemption 95-60 ("PTCE 95-60")) and our purchase and holding of the
Certificates are covered under ▇▇▇▇ ▇▇-▇▇, (▇) we are acquiring the
Certificates for investment for our own account and not with a view to any
distribution of such Certificates (but without prejudice to our right at all
times to sell or otherwise dispose of the Certificates in accordance with
clause (h) below), (g) we have not offered or sold any Certificates to, or
solicited offers to buy any Certificates from, any person, or otherwise
approached or negotiated
K-1
with any person with respect thereto, or taken any other action which would
result in a violation of Section 5 of the Act, and (h) we will not sell,
transfer or otherwise dispose of any Certificates unless (1) such sale,
transfer or other disposition is made pursuant to an effective registration
statement under the Act or is exempt from such registration requirements, and
if requested, we will at our expense provide an opinion of counsel
satisfactory to the addressees of this Certificate that such sale, transfer or
other disposition may be made pursuant to an exemption from the Act, (2) the
purchaser or transferee of such Certificate has executed and delivered to you
a certificate to substantially the same effect as this certificate, and (3)
the purchaser or transferee has otherwise complied with any conditions for
transfer set forth in the Pooling and Servicing Agreement.
Very truly yours,
------------------------
Print Name of Transferee
By:
--------------------------
Authorized Officer
K-2
EXHIBIT L
FORM OF RULE 144A LETTER
____________, 200__
IndyMac MBS, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: S. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Mortgage-Backed Securities Group Series 200 -
Re: IndyMac MBS, Inc. Mortgage Pass-Through Certificates,
Series 200 - , Class
------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is
exempt from the registration requirements of the Act and any such laws, (b) we
have such knowledge and experience in financial and business matters that we
are capable of evaluating the merits and risks of investments in the
Certificates, (c) we have had the opportunity to ask questions of and receive
answers from the Depositor concerning the purchase of the Certificates and all
matters relating thereto or any additional information deemed necessary to our
decision to purchase the Certificates, (d) we are not an employee benefit plan
that is subject to the Employee Retirement Income Security Act of 1974, as
amended, or a plan or arrangement that is subject to Section 4975 of the
Internal Revenue Code of 1986, as amended, nor are we acting on behalf of any
such plan or arrangement nor using the assets of any such plan or arrangement
to effect such acquisition, (e) if an insurance company, we are purchasing the
Certificates with funds contained in an "insurance company general account"
(as defined in Section V(e) of Prohibited Transaction Class Exemption 95-60
("PTCE 95-60")) and our purchase and holding of the Certificates are covered
under ▇▇▇▇ ▇▇-▇▇, (▇) we have not, nor has anyone acting on our behalf
offered, transferred, pledged, sold or otherwise disposed of the Certificates,
any interest in the Certificates or any other similar security to, or
solicited any offer to buy or accept a transfer, pledge or other disposition
of the Certificates, any interest in the Certificates or any other similar
security from, or otherwise approached or negotiated with respect to the
Certificates, any interest in the Certificates or any other similar security
with, any person in any manner, or made any general solicitation by means of
general advertising or in any other manner, or taken any other action, that
would constitute a distribution of the Certificates under the Act or that
would render the disposition of the Certificates a violation of Section 5 of
the Act or require registration pursuant thereto, nor will act, nor has
authorized or will authorize any person to act, in such manner with respect to
the Certificates, (g) we are a "qualified institutional buyer" as that term is
L-1
defined in Rule 144A under the Act ("Rule 144A") and have completed either of
the forms of certification to that effect attached hereto as Annex 1 or Annex
2, (h) we are aware that the sale to us is being made in reliance on Rule
144A, and (i) 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 (A) to a person reasonably believed
to be a qualified institutional buyer that purchases for its own account or
for the account of a qualified institutional buyer to whom notice is given
that the resale, pledge or transfer is being made in reliance on Rule 144A, or
(B) pursuant to another exemption from registration under the Act.
Very truly yours,
------------------------
Print Name of Transferee
By:
--------------------------
Authorized Officer
L-2
ANNEX 1 TO EXHIBIT L
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to
the parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because (i) the Buyer owned
and/or invested on a discretionary basis $______1 in securities (except for the
excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance with Rule 144A
and (ii) the Buyer satisfies the criteria in the category marked below.
___ Corporation, etc. The Buyer is a corporation (other than
a bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or
charitable organization described in Section 501(c)(3) of the
Internal Revenue Code of 1986, as amended.
___ Bank. The Buyer (a) is a national bank or banking
institution organized under the laws of any State, territory or
the District of Columbia, the business of which is
substantially confined to banking and is supervised by the
State or territorial banking commission or similar official or
is a foreign bank or equivalent institution, and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto.
___ Savings and Loan. The Buyer (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is
supervised and examined by a State or Federal authority having
supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto.
___ Broker-dealer. The Buyer is a dealer registered
pursuant to Section 15 of the Securities Exchange Act of 1934.
____________________
1 Buyer must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Buyer is a dealer, and, in that
case, Buyer must own and/or invest on a discretionary basis at least
$10,000,000 in securities.
L-3
___ Insurance 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.
L-4
6. Until the date of purchase of the Rule 144A Securities, the
Buyer will notify each of the parties to which this certification is made of
any changes in the information and conclusions herein. Until such notice is
given, the Buyer's purchase of the Certificates will constitute a
reaffirmation of this certification as of the date of such purchase. In
addition, if the Buyer is a bank or savings and loan is provided above, the
Buyer agrees that it will furnish to such parties updated annual financial
statements promptly after they become available.
------------------------------
Print Name of Buyer
By:
---------------------------
Name:
Title:
Date:
-------------------------
L-5
ANNEX 2 TO EXHIBIT L
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to
the parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because Buyer is part of a
Family of Investment Companies (as defined below), is such an officer of the
Adviser.
2. In connection with purchases by Buyer, the Buyer is a
"qualified institutional buyer" as defined in SEC Rule 144A because (i) the
Buyer is an investment company registered under the Investment Company Act of
1940, as amended and (ii) as marked below, the Buyer alone, or the Buyer's
Family of Investment Companies, owned at least $100,000,000 in securities
(other than the excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year. For purposes of determining the amount of
securities owned by the Buyer or the Buyer's Family of Investment Companies,
the cost of such securities was used, except (i) where the Buyer or the
Buyer's Family of Investment Companies reports its securities holdings in its
financial statements on the basis of their market value, and (ii) no current
information with respect to the cost of those securities has been published.
If clause (ii) in the preceding sentence applies, the securities may be valued
at market.
___ The Buyer owned $___ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance
with Rule 144A).
___ The Buyer is part of a Family of Investment Companies which
owned in the aggregate $_______ in securities (other than the
excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein
means two or more registered investment companies (or series thereof) that
have the same investment adviser or investment advisers that are affiliated
(by virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) securities issued or guaranteed
by the U.S. or any instrumentality thereof, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase agreements,
(vi) securities owned but subject to a repurchase agreement and (vii)
currency, interest rate and commodity swaps.
L-6
5. The Buyer is familiar with Rule 144A and understands that
the parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, the Buyer will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, the
undersigned will notify the parties listed in the Rule 144A Transferee
Certificate to which this certification relates of any changes in the
information and conclusions herein. Until such notice is given, the Buyer's
purchase of the Certificates will constitute a reaffirmation of this
certification by the undersigned as of the date of such purchase.
------------------------------
Print Name of Buyer or Adviser
By:
---------------------------
Name:
Title:
IF AN ADVISER:
------------------------------
Print Name of Buyer
Date:
-------------------------
L-7
EXHIBIT M
REQUEST FOR RELEASE
(for Trustee)
IndyMac MBS, Inc.
Mortgage Pass-Through Certificates
Series 200_-_
Loan Information
----------------
Name of Mortgagor:
Servicer
Loan No.:
------------------------------
Trustee
Name:
------------------------------
Address:
------------------------------
------------------------------
Trustee
Mortgage File No.:
The undersigned Master Servicer hereby acknowledges that it has
received from The Bank of New York, as Trustee for the Holders of Mortgage
Pass-Through Certificates, of the above-referenced Series, the documents
referred to below (the "Documents"). All capitalized terms not otherwise
defined in this Request for Release shall have the meanings given them in the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement")
relating to the above-referenced Series among the Trustee, IndyMac Bank,
F.S.B., as Seller and Master Servicer and IndyMac MBS, Inc., as Depositor.
( ) Mortgage Note dated ____________, 20__, in the original principal sum
of $_________, made by _______________. payable to, or endorsed to the
order of, the Trustee.
( ) Mortgage recorded on _______________ as instrument no. _______________
in the County Recorder's Office of the County of _______________,
State of _______________ in book/reel/docket _______________ of
official records at page/image _______________.
( ) Deed of Trust recorded on _______________ as instrument no.
_______________ in the County Recorder's Office of the County of
_______________, State of _______________ in book/reel/docket
_______________ of official records at page/image _______________.
( ) Assignment of Mortgage or Deed of Trust to the Trustee, recorded on
_______________ as instrument no. _______________in the County
Recorder's Office of the County of _______________, State of
_______________ in book/reel/docket _______________ of official
records at page/image _______________.
M-1
( ) Other documents, including any amendments, assignments or other
assumptions of the Mortgage Note or Mortgage.
( )
( )
( )
( )
The undersigned Master Servicer hereby acknowledges and agrees as
follows:
(1) The Master Servicer shall hold and retain possession of the
Documents in trust for the benefit of the Trustee, solely for
the purposes provided in the Agreement.
(2) The Master Servicer shall not cause or knowingly permit the
Documents to become subject to, or encumbered by, any claim,
liens, security interest, charges, writs of attachment or other
impositions nor shall the Servicer assert or seek to assert any
claims or rights of setoff to or against the Documents or any
proceeds thereof.
(3) The Master Servicer shall return each and every Document
previously requested from the Mortgage File to the Trustee when
the need therefor no longer exists, unless the Mortgage Loan
relating to the Documents has been liquidated and the proceeds
thereof have been remitted to the Certificate Account and
except as expressly provided in the Agreement.
(4) The Documents and any proceeds thereof, including any
proceeds of proceeds, coming into the possession or control of
the Master Servicer shall at all times be earmarked for the
account of the Trustee, and the Master Servicer shall keep the
Documents and any proceeds separate and distinct from all other
property in the Master Servicer's possession, custody or
control.
INDYMAC BANK, F.S.B.
By
------------------------
Its
------------------------
Date: _______________, 20__
M-2
N-1
EXHIBIT N
REQUEST FOR RELEASE OF DOCUMENTS
To: The Bank of New York Attn: Mortgage Custody
Services
Re: The Pooling & Servicing Agreement dated _______ among IndyMac Bank, F.S.B.
as Master Servicer, Inc, IndyMac MBS, Inc. and The Bank of New York as Trustee
Ladies and Gentlemen:
In connection with the administration of the Mortgage Loans held by you as
Trustee for IndyMac MBS, Inc., we request the release of the Mortgage Loan
File for the Mortgage Loan(s) described below, for the reason indicated.
FT Account#: Pool #:
Mortgagor's Name, Address and Zip Code:
--------------------------------------
Mortgage Loan Number:
--------------------
Reason for Requesting Documents (check one)
-------------------------------
_______1. Mortgage Loan paid in full (IndyMac hereby certifies that all
amounts have been received.)
_______2. Mortgage Loan Liquidated (IndyMac hereby certifies that all
proceeds of foreclosure, insurance, or other liquidation have
been finally received.)
_______3. Mortgage Loan in Foreclosure.
_______4. Other (explain): ____________________________________
If item 1 or 2 above is checked, and if all or part of the Mortgage File was
previously released to us, please release to us our previous receipt on file
with you, as well as an additional documents in your possession relating to
the above-specified Mortgage Loan. If item 3 or 4 is checked, upon return of
all of the above documents to you as Trustee, please acknowledge your receipt
by signing in the space indicated below, and returning this form.
N-1
INDYMAC BANK, F.S.B. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By:________________________
Name:______________________
Title:____________________
Date:______________________
TRUSTEE CONSENT TO RELEASE AND
ACKNOWLEDGEMENT OF RECEIPT
By:________________________
Name:______________________
Title:____________________
Date:______________________
N-2