Exhibit 99.1
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INDYMAC MBS, INC.
Depositor
INDYMAC BANK, F.S.B.
Seller and Servicer
DEUTSCHE BANK NATIONAL TRUST COMPANY
Trustee and Supplemental Interest Trustee
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POOLING AND SERVICING AGREEMENT
Dated as of January 1, 2007
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RESIDENTIAL ASSET SECURITIZATION TRUST
Series 2007-A1
MORTGAGE PASS-THROUGH CERTIFICATES
Series 2007-A
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TABLE OF CONTENTS
Page
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ARTICLE ONE DEFINITIONS .......................................................................................6
Section 1.01 Definitions............................................................................6
Section 1.02 Rules of Construction.................................................................36
ARTICLE TWO CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES.........................................38
Section 2.01 Conveyance of Mortgage Loans..........................................................38
Section 2.02 Acceptance by the Trustee of the Mortgage Loans.......................................41
Section 2.03 Representations, Warranties, and Covenants of the Seller and the Servicer.............43
Section 2.04 Representations and Warranties of the Depositor as to the Mortgage Loans..............45
Section 2.05 Delivery of Opinion of Counsel in Connection with Substitutions.......................45
Section 2.06 Execution and Delivery of Certificates................................................45
Section 2.07 REMIC Matters.........................................................................45
ARTICLE THREE ADMINISTRATION AND SERVICING OF MORTGAGE LOANS.....................................................46
Section 3.01 Servicer to Service Mortgage Loans....................................................46
Section 3.02 [Reserved]............................................................................47
Section 3.03 Rights of the Depositor and the Trustee in Respect of the Servicer....................47
Section 3.04 [Reserved]............................................................................47
Section 3.05 Trustee to Act as Servicer............................................................47
Section 3.06 Collection of Mortgage Loan Payments; Certificate Account; Distribution
Account; Supplemental Interest Trust; Supplemental Interest Reserve Fund..............47
Section 3.07 Collection of Taxes, Assessments and Similar Items; Escrow Accounts...................50
Section 3.08 Access to Certain Documentation and Information Regarding the Mortgage Loans..........51
Section 3.09 Permitted Withdrawals from the Certificate Account, the Distribution Account
and the Supplemental Interest Reserve Fund............................................51
Section 3.10 Maintenance of Hazard Insurance; Maintenance of Primary Insurance Policies............53
Section 3.11 Enforcement of Due-On-Sale Clauses; Assumption Agreements.............................54
Section 3.12 Realization Upon Defaulted Mortgage Loans.............................................55
Section 3.13 Trustee to Cooperate; Release of Mortgage Files.......................................57
Section 3.14 Documents, Records and Funds in Possession of the Servicer to be Held for the
Trustee...............................................................................58
Section 3.15 Servicing Compensation................................................................58
Section 3.16 Access to Certain Documentation.......................................................58
Section 3.17 Annual Statement as to Compliance.....................................................59
Section 3.18 Errors and Omissions Insurance; Fidelity Bonds........................................59
Section 3.19 The Supplemental Interest Trust.......................................................59
Section 3.20 [Reserved]............................................................................60
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ARTICLE FOUR DISTRIBUTIONS AND ADVANCES BY THE SERVICER..........................................................61
Section 4.01 Advances..............................................................................61
Section 4.02 Priorities of Distribution............................................................62
Section 4.03 [Reserved]............................................................................66
Section 4.04 [Reserved]............................................................................66
Section 4.05 Allocation of Realized Losses.........................................................66
Section 4.06 Monthly Statements to Certificateholders..............................................67
Section 4.07 [Reserved]............................................................................70
Section 4.08 Distributions from the Supplemental Interest Reserve Fund.............................70
Section 4.09 Determination of Pass-Through Rates for LIBOR Certificates............................70
ARTICLE FIVE THE CERTIFICATES....................................................................................73
Section 5.01 The Certificates.................................... .................................73
Section 5.02 Certificate Register; Registration of Transfer and Exchange of Certificates...........73
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates.....................................78
Section 5.04 Persons Deemed Owners.................................................................78
Section 5.05 Access to List of Certificateholders' Names and Addresses.............................78
Section 5.06 Maintenance of Office or Agency.......................................................79
ARTICLE SIX THE DEPOSITOR AND THE SERVICER.......................................................................80
Section 6.01 Respective Liabilities of the Depositor and the Servicer..............................80
Section 6.02 Merger or Consolidation of the Depositor or the Servicer..............................80
Section 6.03 Limitation on Liability of the Depositor,
the Seller, the Servicer, and Others..................................................80
Section 6.04 Limitation on Resignation of the Servicer.............................................81
ARTICLE SEVEN DEFAULT............................................................................................82
Section 7.01 Events of Default.....................................................................82
Section 7.02 Trustee to Act; Appointment of Successor..............................................83
Section 7.03 Notification to Certificateholders....................................................85
ARTICLE EIGHT CONCERNING THE TRUSTEE.............................................................................86
Section 8.01 Duties of the Trustee.................................................................86
Section 8.02 Certain Matters Affecting the Trustee.................................................86
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans.................................88
Section 8.04 Trustee May Own Certificates..........................................................88
Section 8.05 Trustee's Fees and Expenses...........................................................88
Section 8.06 Eligibility Requirements for the Trustee..............................................89
Section 8.07 Resignation and Removal of the Trustee................................................89
Section 8.08 Successor Trustee.....................................................................90
Section 8.09 Merger or Consolidation of the Trustee................................................91
Section 8.10 Appointment of Co-Trustee or Separate Trustee.........................................91
Section 8.11 Tax Matters...........................................................................92
ARTICLE NINE TERMINATION.........................................................................................95
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Section 9.01 Termination upon Liquidation or Purchase of
the Mortgage Loans....................................................................95
Section 9.02 Final Distribution on the Certificates................................................95
Section 9.03 Additional Termination Requirements...................................................97
ARTICLE TEN MISCELLANEOUS PROVISIONS.............................................................................98
Section 10.01 Amendment.............................................................................98
Section 10.02 Recordation of Agreement; Counterparts................................................99
Section 10.03 Governing Law........................................................................100
Section 10.04 Intention of Parties.................................................................100
Section 10.05 Notices..............................................................................100
Section 10.06 Severability of Provisions...........................................................101
Section 10.07 Assignment...........................................................................101
Section 10.08 Limitation on Rights of Certificateholders...........................................101
Section 10.09 Inspection and Audit Rights..........................................................102
Section 10.10 Certificates Nonassessable and Fully Paid............................................102
Section 10.11 Official Record......................................................................102
Section 10.12 Protection of Assets.................................................................103
Section 10.13 Qualifying Special Purpose Entity....................................................103
ARTICLE ELEVEN EXCHANGE ACT REPORTING...........................................................................104
Section 11.01 Filing Obligations...................................................................104
Section 11.02 Form 10-D Filings....................................................................104
Section 11.03 Form 8-K Filings.....................................................................105
Section 11.04 Form 10-K Filings....................................................................105
Section 11.05 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification.........................................................108
Section 11.06 Form 15 Filing.......................................................................108
Section 11.07 Report on Assessment of Compliance and Attestation...................................108
Section 11.08 Use of Subcontractors................................................................110
Section 11.09 Amendments...........................................................................110
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SCHEDULES
Schedule I: Mortgage Loan Schedule...................................................................S-I-1
Schedule II: Representations and Warranties of the Seller/Servicer...................................S-II-1
Schedule III: Representations and Warranties as to the Mortgage Loans................................S-III-1
Schedule IV: [Reserved]..............................................................................S-IV-1
Schedule V: Form of Monthly Report...................................................................S-V-1
EXHIBITS
Exhibit A: Form of Senior Certificate (other than the Notional Amount Certificates)...................A-1
Exhibit B: Form of Subordinated Certificate...........................................................B-1
Exhibit C: Form of Class A-R Certificate..............................................................C-1
Exhibit D: Form of Notional Amount Certificate........................................................D-1
Exhibit E: Form of Reverse of Certificates............................................................E-1
Exhibit F: [Reserved].................................................................................F-1
Exhibit G-1: Form of Initial Certification of Trustee ................................................G-1-1
Exhibit G-2: Form of Delay Delivery Certification.....................................................G-2-1
Exhibit H: Form of Final Certification of Trustee.....................................................H-1
Exhibit I: Form of Transfer Affidavit.................................................................I-1
Exhibit J: Form of Transferor Certificate.............................................................J-1
Exhibit K: Form of Investment Letter (Non-Rule 144A)..................................................K-1
Exhibit L: Form of Rule 144A Letter...................................................................L-1
Exhibit M: Form of Request for Release (for Trustee)..................................................M-1
Exhibit N: Request for Release of Documents...........................................................N-1
Exhibit O-1: Form of Certification to be Provided by the Depositor with Form 10-K.....................O-1-1
Exhibit O-2: Form of Trustee's Officer's Certificate..................................................O-2-1
Exhibit P: Form of Class A-3 Corridor Contract........................................................P-1
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Exhibit Q Reporting Responsibility...................................................................Q-1
Exhibit R: Form of Performance Certification (Trustee)................................................R-1
Exhibit S: Form of Servicing Criteria to be Addressed in Assessment of S-1
Compliance Statement.............................................................
Exhibit T: List of 1119 Parties............................................................. T-1
Exhibit U: Form of ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification (Replacement of Servicer)................... U-1
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THIS POOLING AND SERVICING AGREEMENT, dated as of January 1, 2007,
among INDYMAC MBS, INC., a Delaware corporation, as depositor (the "Depositor"),
IndyMac Bank, F.S.B. ("IndyMac"), a federal savings bank, as seller (in that
capacity, the "Seller") and as Servicer (in that capacity, the "Servicer"), and
Deutsche Bank National Trust Company, a national banking association, as trustee
(the "Trustee"),
W I T N E S S E T H T H A T
In consideration of the mutual agreements set forth in this Agreement,
the parties agree as follows:
P R E L I M I N A R Y S T A T E M E N T
The Depositor is the owner of the Trust Fund that is hereby conveyed to
the Trustee in return for the Certificates. The Trust Fund for federal income
tax purposes will consist of two REMICs (the "Lower Tier REMIC" and the "Master
REMIC"). Each Certificate, other than the Class A-R Certificate, will represent
ownership of one or more regular interests in the Master REMIC for purposes of
the REMIC Provisions. The Class A-R Certificate represents ownership of the sole
class of residual interest in each REMIC created hereunder. The Master REMIC
will hold as assets the Lower Tier REMIC Regular Interests. The Lower Tier REMIC
will hold as assets all property of the Trust Fund other than the interests in
the Lower Tier REMIC. For federal income tax purposes, each Certificate (other
than the Class A-R Certificate) is hereby designated as a regular interest in
the Master REMIC and each Lower Tier REMIC Regular Interest, as defined below,
is designated as a regular interest in the Lower Tier REMIC. The latest possible
maturity date of all REMIC regular interests created in this Agreement shall be
the Latest Possible Maturity Date.
The Supplemental Interest Trust, the Supplemental Interest Reserve Fund
and the Corridor Contract shall not constitute any part of any REMIC described
herein.
Lower Tier REMIC
The following table sets forth characteristics of the Lower Tier REMIC
Regular Interests:
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Lower Tier REMIC Regular Principal Pass-Through Allocation of
Interests Balance Rate Allocation of Interest Principal
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LT-A-1 (1) 6.00% Class A-1 Class A-1
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LT-A-2 (1) 6.00% Class A-2 Class A-2
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LT-A-3 (1) 5.75% Class ▇-▇, ▇-▇ ▇▇▇▇▇ ▇-▇
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▇▇-▇-▇ (1) 7.45604064% Class ▇-▇, ▇-▇ ▇▇▇▇▇ ▇-▇
-------------------------------------------------------------------------------------------------------
▇▇-▇-▇ (1) 6.00% Class A-7 Class A-7
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LT-A-8 (1) 6.00% Class A-8 Class A-8
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LT-A-9 (1) 6.00% Class ▇-▇, ▇-▇▇ ▇▇▇▇▇ ▇-▇
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▇▇-▇▇ (1) 0.00% N/A Class PO
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LT-A-X (1) 6.00% Class A-X N/A
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LT-$100 (1) 6.00% Class A-R Class A-R
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LT-B-1 (1) 6.00% Class B-1 Class B-1
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LT-B-2 (1) 6.00% Class B-2 Class B-2
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LT-B-3 (1) 6.00% Class B-3 Class B-3
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LT-B-4 (1) 6.00% Class B-4 Class B-4
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LT-B-5 (1) 6.00% Class B-5 Class B-5
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Lower Tier REMIC Regular Principal Pass-Through Allocation of
Interests Balance Rate Allocation of Interest Principal
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LT-B-6 (1) 6.00% Class B-6 Class B-6
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LT-R (3) N/A N/A N/A
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(1) For each Distribution Date, following the allocation of scheduled
principal, Principal Prepayments and Realized Losses, the principal
balance for each such Lower Tier REMIC Regular Interest will be the
principal balance in respect of the corresponding Class of Certificates
(or the sum of the principal balances if there is more than one
corresponding Class) set forth under the Column titled "Allocation of
Principal". The notional principal balance of the A-X Interest will be
the principal balance of the Non-Discount Mortgage Loans.
(2) The LT-P Interest will not be entitled to any interest, but will be
entitled to 100% of any Prepayment Charges paid on the Mortgage Loans.
(3) The Class LT-R Interest is the sole class of residual interest in the
Lower Tier REMIC and will not be entitled to distributions of principal
or interest.
The Master REMIC
The following table sets forth characteristics of the Certificates,
together with the minimum denominations and integral multiples in excess thereof
in which such Classes shall be issuable (except that one Certificate of each
Class of Certificates may be issued in a different amount):
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Integral
Multiples in
Initial Class Certificate Pass-Through Minimum Excess of
Class Designation Balance Rate Denomination Minimum
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Class A-1 $60,864,674.00 6.00% $ 25,000 $1,000
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Class A-2 $14,162,721.00 6.00% $ 25,000 $1,000
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Class A-3 $123,364,500.00 Floating (1) $ 25,000 $1,000
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Class A-4 $123,364,500.00(2) Floating (3) $ 25,000 (6) $1,000 (6)
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Class A-5 $21,181,500.00 Floating (4) $ 25,000 $1,000
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Class A-6 $21,181,500.00(2) Floating (5) $ 25,000 (6) $1,000 (6)
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Class A-7 $896,608.00 6.00% $ 25,000 $1,000
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Class A-8 $72,273,000.00 6.00% $ 25,000 $1,000
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Class A-9 $72,273,000.00 5.75% $ 25,000 $1,000
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Class A-10 $3,011,375.00 (2) 6.00% $ 25,000 (6) $1,000 (6)
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Class PO $1,265,942.00 N/A (7) $ 25,000 $1,000
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Class A-X $330,564,270.37(2) (8) $ 25,000 (6) $1,000 (6)
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Class A-R $100.00 6.00% $ 100 N/A
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Class B-1 $7,732,000.00 6.00% $ 25,000 $1,000
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Class B-2 $4,446,000.00 6.00% $ 25,000 $1,000
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Class B-3 $2,319,000.00 6.00% $ 25,000 $1,000
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Class B-4 $2,513,000.00 6.00% $ 100,000 $1,000
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Class B-5 $1,933,000.00 6.00% $ 100,000 $1,000
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Class B-6 $1,352,012.06 6.00% $ 100,000 $1,000
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(1) The Class A-3 Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the lesser of (i) LIBOR
plus 0.60% and (ii) 5.75%. The Pass-Through Rate for the Class A-3
Certificates during the initial Interest Accrual Period is 5.7500000%
per annum.
(2) The Class of Certificates will be Notional Amount Certificates, will
have no Class Certificate Balance and will bear interest on its
Notional Amount.
(3) The Class A-4 Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to 5.15% minus LIBOR, subject
to a maximum of 5.15% and a minimum of 0%. The Pass Through Rate for
the Class A-4 Certificates during the initial Interest Accrual Period
is 0.0000000%.
(4) The Class A-5 Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the lesser of (i) LIBOR
plus 0.40% and (ii) 7.00%. The Pass-Through Rate for the Class A-5
Certificates during the initial Interest Accrual Period is 5.7200000%
per annum.
(5) The Class A-6 Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to 7.05604064% minus LIBOR,
subject to a maximum rate of 7.05604064% per annum and a minimum rate
of 0.▇▇▇▇▇▇▇▇% per annum. The Pass Through Rate for the Class A-6
Certificates during the initial Interest Accrual Period is 1.7360406%
per annum.
(6) Denomination is based on Notional Amount.
(7) The Class PO Certificates are Principal Only Certificates and are not
entitled to receive distributions of interest.
(8) The Pass-Through Rate of the Class A-X Certificates for the Interest
Accrual Period related to each Distribution Date will equal the excess
of the average of the Adjusted Net Mortgage Rates of the Non-discount
Mortgage Loans, weighted on the basis of their respective Stated
Principal Balance as of the first day of the related Due Period (after
giving effect to Principal Prepayments received in the Prepayment
Period ending during the Due Period), over 6.00% per annum. For federal
income tax purposes, the Class A-X Certificates will be entitled to
100% of the LT-X Interest cash flow.
The foregoing REMIC structure is intended to cause all of the cash from
the Mortgage Loans to flow through to the Master REMIC as cash flow on a REMIC
regular interest, without creating any shortfall--actual or potential (other
than for credit losses) to any REMIC regular interest.
Scheduled Principal Prepayments and Realized Losses will be allocated
to the Lower Tier REMIC Regular Interests in the same manner as such amounts are
allocated to the Master REMIC Classes referenced under the column titled
"Allocation of Principal."
Set forth below are designations of Classes of Certificates to the categories
used herein:
Accretion Directed Certificates.......................... None.
Accrual Certificates..................................... None.
Book-Entry Certificates.................................. All Classes of Certificates other than the Physical
Certificates.
3
COFI Certificates........................................ None.
Delay Certificates....................................... All interest-bearing Classes of Certificates other
than any Non-Delay Certificates.
ERISA-Restricted Certificates............................ The Residual Certificates and the Private
Certificates; the Retained Certificates until they
have been the subject of an ERISA-Qualifying
Underwriting; and Certificates of any Class that
ceases to have a rating of BBB- (or its equivalent)
or better from at least one Rating Agency.
LIBOR Certificates....................................... Class A-3, Class A-4, Class A-5 and Class A-6
Certificates
Non-Delay Certificates................................... LIBOR Certificates.
Notional Amount Certificates............................. Class A-4, Class A-6, Class A-10 and Class A-X
Certificates
Offered Certificates..................................... All Classes of Certificates other than the Private
Certificates.
Physical Certificates.................................... Class A-R Certificates and the Private Certificates.
Planned Principal Classes................................ None.
Principal Only Certificates.............................. Class PO Certificates.
Private Certificates..................................... Class B-4, Class B-5 and Class B-6 Certificates.
Rating Agencies.......................................... Fitch, ▇▇▇▇▇'▇ and S&P.
Regular Certificates..................................... All Classes of Certificates other than the Class A-R
Certificates.
Residual Certificate..................................... Class A-R Certificates.
Retained Certificates.................................... Class PO Certificates.
Senior Certificates...................................... Class A-1, Class A-2, Class A-3, Class A-4, Class
A-5, Class A-5, Class A-6, Class A-7, Class A-8,
Class A-9, Class A-10, Class A-X, Class PO and Class
A-R Certificates
Subordinated Certificates................................ Class B-1, Class B-2, Class B-3, Class B-4, Class
B-5 and Class B-6 Certificates.
4
Targeted Principal Classes............................... None.
Targeted Principal Component............................. None.
With respect to any of the foregoing designations as to which the
corresponding reference is "None," all defined terms and provisions in this
Agreement relating solely to such designations shall be of no force or effect,
and any calculations in this Agreement incorporating references to such
designations shall be interpreted without reference to such designations and
amounts. Defined terms and provisions in this Agreement relating to statistical
rating agencies not designated above as Rating Agencies shall be of no force or
effect.
5
ARTICLE ONE
DEFINITIONS
Section 1.01 Definitions.
Unless the context requires a different meaning, capitalized terms are
used in this Agreement as defined below.
Accretion Directed Certificates: As specified in the Preliminary
Statement.
Accretion Direction Rule: Not applicable.
Accrual Amount: Not applicable.
Accrual Certificates: As specified in the Preliminary Statement.
Accrual Termination Date: Not applicable.
Additional Designated Information: As defined in Section 11.02.
Adjusted Mortgage Rate: As to each Mortgage Loan and at any time, the
per annum rate equal to the Mortgage Rate less the Servicing Fee Rate.
Adjusted Net Mortgage Rate: As to each Mortgage Loan and any
Distribution Date, the per annum rate equal to the Mortgage Rate of that
Mortgage Loan (as of the Due Date in the month preceding the month in which such
Distribution Date occurs) less the Expense Fee Rate for that Mortgage Loan.
Advance: The payment required to be made by the Servicer with respect
to any Distribution Date pursuant to Section 4.01, the amount of any such
payment being equal to the aggregate of payments of principal and interest (net
of the Servicing Fee) on the Mortgage Loans that were due during the related Due
Period and not received as of the close of business on the related Determination
Date, together with an amount equivalent to interest on each REO Property, net
of any net income from such REO Property, less the aggregate amount of any such
delinquent payments that the Servicer has determined would constitute a
Nonrecoverable Advance if advanced.
Advance Notice: As defined in Section 4.01(b).
Advance Deficiency: As defined in Section 4.01(b).
Affiliate: With respect to any Person, any other Person controlling,
controlled or under common control with such Person. For purposes of this
definition, "control" means the power to direct the management and policies of a
Person, directly or indirectly, whether through ownership of voting securities,
by contract, or otherwise and "controlling" and "controlled" shall have meanings
correlative to the foregoing. Affiliates also include any entities consolidated
with the requirements of generally accepted accounting principles.
Agreement: This Pooling and Servicing Agreement and all amendments
and supplements.
Allocable Share: As to any Distribution Date and any Mortgage Loan (i)
with respect to the Class A-X Certificates, (a) the ratio that the excess, if
any, of the Adjusted Net Mortgage Rate with respect to such Mortgage Loan over
the applicable Required Coupon bears to such Adjusted Net
6
Mortgage Rate or (b) if the Adjusted Net Mortgage Rate with respect to such
Mortgage Loan does not exceed the applicable Required Coupon, zero; (ii) with
respect to the Class PO Certificates, zero and (iii) with respect to each
other Class of Certificates the product of (a) the lesser of (I) the ratio
that the Required Coupon bears to such Adjusted Net Mortgage Rate of such
Mortgage Loan and (II) one, multiplied by (b) the ratio that the amount
calculated with respect to such Distribution Date for such Class, pursuant to
clause (i) of the definition of Class Optimal Interest Distribution Amount
(without giving effect to any reduction of such amount pursuant to Section
4.02(d)) bears to the aggregate amount calculated with respect to such
Distribution Date for each such Class of Certificates pursuant to clause (i)
of the definition of Class Optimal Interest Distribution Amount (without
giving effect to any reduction of such amounts pursuant to Section 4.02(d)).
Amount Available for Senior Principal: As to any Distribution Date, the
Available Funds for such Distribution Date, reduced by the aggregate amount
distributable (or allocable to the Accrual Amount, if applicable) on such
Distribution Date in respect of interest on the Senior Certificates pursuant to
Section 4.02(a)(1)(iii).
Amount Held for Future Distribution: As to any Distribution Date, the
aggregate amount held in the Certificate Account at the close of business on the
related Determination Date on account of (i) Principal Prepayments received
after the last day of the related Prepayment Period and Liquidation Proceeds and
Subsequent Recoveries received in the month of such Distribution Date and (ii)
all Scheduled Payments due after the related Due Date.
Applicable Credit Support Percentage: As defined in Section 4.02(e).
Appraised Value: With respect to any Mortgage Loan, the Appraised Value
of the related Mortgaged Property shall be: (i) with respect to a Mortgage Loan
other than a Refinance Loan, the lesser of (a) the value of the Mortgaged
Property based upon the appraisal made at the time of the origination of such
Mortgage Loan and (b) the sales price of the Mortgaged Property at the time of
the origination of such Mortgage Loan; and (ii) with respect to a Refinance
Loan, the value of the Mortgaged Property based upon the appraisal made at the
time of the origination of such Refinance Loan.
Available Funds: As to any Distribution, the sum of (a) the aggregate
amount held in the Certificate Account at the close of business on the related
Determination Date, including any Subsequent Recoveries, net of the Amount Held
for Future Distribution net of amounts permitted to be withdrawn from the
Certificate Account pursuant to clauses (i) - (viii), inclusive, of Section
3.09(a) and amounts permitted to be withdrawn from the Distribution Account
pursuant to clauses (i) - (ii), inclusive, of Section 3.09(b), (b) the amount of
the related Advance, (c) in connection with Defective Mortgage Loans, the
aggregate of the Purchase Prices and Substitution Adjustment Amounts deposited
on the related Distribution Account Deposit Date, and (d) any amount deposited
on the related Distribution Account Deposit Date pursuant to Section 3.10.
Bankruptcy Code: The United States Bankruptcy Reform Act of 1978, as
amended.
Bankruptcy Coverage Termination Date: The point in time at which the
Bankruptcy Loss Coverage Amount is reduced to zero.
Bankruptcy Loss: With respect to any Mortgage Loan, a Deficient
Valuation or Debt Service Reduction; provided, however, that a Bankruptcy Loss
shall not be deemed a Bankruptcy Loss under this Agreement so long as the
Servicer has notified the Trustee in writing that the Servicer is diligently
pursuing any remedies that may exist in connection with the related Mortgage
Loan and either (A) the related Mortgage Loan is not in default with regard to
payments due under the Mortgage Loan or (B)
7
delinquent payments of principal and interest under the related Mortgage Loan
and any related escrow payments in respect of such Mortgage Loan are being
advanced on a current basis by the Servicer, in either case without giving
effect to any Debt Service Reduction or Deficient Valuation.
Bankruptcy Loss Coverage Amount: As of any date of determination, the
Bankruptcy Loss Coverage Amount shall equal the Initial Bankruptcy Loss Coverage
Amount as reduced by (i) the aggregate amount of Bankruptcy Losses allocated to
the Certificates since the Cut-off Date and (ii) any permissible reductions in
the Bankruptcy Loss Coverage Amount as evidenced by a letter of each Rating
Agency to the Trustee to the effect that any such reduction will not result in a
downgrading, qualification or withdrawal of the then current ratings assigned to
the Classes of Certificates rated by it.
Blanket Mortgage: The mortgage or mortgages encumbering a Cooperative
Property.
Book-Entry Certificates: As specified in the Preliminary Statement.
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii) a
day on which banking institutions in the City of New York, New York, the State
of California or the city in which the Corporate Trust Office of the Trustee is
located are authorized or obligated by law or executive order to be closed.
Cap Counterparty: Bear ▇▇▇▇▇▇▇ Financial Products Inc.
Certificate: Any one of the certificates issued by the Trust Fund and
executed by the Trustee in substantially the forms attached as exhibits.
Certificate Account: The separate Eligible Account or Accounts created
and maintained by the Servicer pursuant to Section 3.06(d) with a depository
institution in the name of the Servicer for the benefit of the Trustee on behalf
of Certificateholders and designated "IndyMac Bank, F.S.B., in trust for the
registered holders of Residential Asset Securitization Trust 2007-A1, Mortgage
Pass-Through Certificates, Series 2007-A."
Certificate Balance: With respect to any Certificate (other than the
Notional Amount Certificates) at any date of determination, the maximum dollar
amount of principal to which the Holder thereof is then entitled under this
Agreement, such amount being equal to the Denomination thereof (A) plus any
increase in the Certificate Balance of such Certificate pursuant to Section 4.02
due to the receipt of Subsequent Recoveries, (B) minus the sum of (i) all
distributions of principal previously made with respect thereto and (ii) all
Realized Losses allocated to that Certificate and, in the case of any
Subordinated Certificates, all other reductions in Certificate Balance
previously allocated to that Certificate pursuant to Section 4.05 and (C) in the
case of any Class of Accrual Certificates, plus the Accrual Amount added to the
Class Certificate Balance of such Class prior to such date. The Notional Amount
Certificates do not have Certificate Balances.
Certificate Group: Not applicable.
Certificate Owner: With respect to a Book-Entry Certificate, the Person
who is the beneficial owner of the Book-Entry Certificate. For the purposes of
this Agreement, in order for a Certificate Owner to enforce any of its rights
under this Agreement, it shall first have to provide evidence of its beneficial
ownership interest in a Certificate that is reasonably satisfactory to the
Trustee, the Depositor and/or the Servicer, as applicable.
Certificate Register: The register maintained pursuant to Section
5.02.
8
Certificate Registrar: Deutsche Bank National Trust Company and its
successors and, if a successor registrar is appointed under this Agreement,
the successor.
Certificateholder or Holder: The person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purpose of
giving any consent pursuant to this Agreement, any Certificate registered in the
name of the Depositor or any affiliate of the Depositor is not Outstanding and
the Percentage Interest evidenced thereby shall not be taken into account in
determining whether the requisite amount of Percentage Interests necessary to
effect a consent has been obtained, except that if the Depositor or its
affiliates own 100% of the Percentage Interests evidenced by a Class of
Certificates, the Certificates shall be Outstanding for purposes of any
provision of this Agreement requiring the consent of the Holders of Certificates
of a particular Class as a condition to the taking of any action. The Trustee is
entitled to rely conclusively on a certification of the Depositor or any
affiliate of the Depositor in determining which Certificates are registered in
the name of an affiliate of the Depositor.
Certification Party: As defined in Section 11.05.
Certifying Person: As defined in Section 11.05.
Class: All Certificates bearing the same class designation as set
forth in the Preliminary Statement.
Class Certificate Balance: For any Class as of any date of
determination, the aggregate of the Certificate Balances of all Certificates
of the Class as of that date.
Class Interest Shortfall: As to any Distribution Date and Class, the
amount by which the amount described in clause (i) of the definition of Class
Optimal Interest Distribution Amount for such Class exceeds the amount of
interest actually distributed on such Class on such Distribution Date pursuant
to such clause (i).
Class Optimal Interest Distribution Amount: With respect to any
Distribution Date and interest-bearing Class, the sum of (i) one month's
interest accrued during the related Interest Accrual Period at the Pass-Through
Rate for such Class, on the related Class Certificate Balance or Notional
Amount, as applicable, immediately prior to such Distribution Date, subject to
reduction pursuant to Section 4.02(d), and (ii) any Class Unpaid Interest
Amounts for such Class.
Class PO Deferred Amount: As to any Distribution Date, the aggregate of
the applicable PO Percentage of each Realized Loss, other than any Excess Loss,
on a Discount Mortgage Loan to be allocated to the Class PO Certificates on such
Distribution Date on or prior to the Senior Credit Support Depletion Date or
previously allocated to that Class PO Certificates and not yet paid to the
Holders of the Class PO Certificates.
Class Subordination Percentage: With respect to any Distribution Date
and each Class of Subordinated Certificates, the fraction (expressed as a
percentage) the numerator of which is the Class Certificate Balance of such
Class of Subordinated Certificates immediately prior to such Distribution Date
and the denominator of which is the aggregate Class Certificate Balance of all
Classes of Certificates immediately prior to such Distribution Date.
Class Unpaid Interest Amounts: As to any Distribution Date and Class of
interest-bearing Certificates, the amount by which the aggregate Class Interest
Shortfalls for such Class on prior Distribution Dates exceeds the amount
distributed on such Class on prior Distribution Dates pursuant to clause (ii) of
the definition of Class Optimal Interest Distribution Amount.
9
Closing Date: January 30, 2007.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions. COFI: Not applicable.
COFI Certificates: Not applicable.
Commission: The United States Securities and Exchange Commission.
Compensating Interest: For any Distribution Date, 0.125% multiplied by
one-twelfth multiplied by the aggregate Stated Principal Balance of the Mortgage
Loans as of the first day of the prior month.
Component: As specified in the Preliminary Statement.
Component Balance: With respect to any Component and any Distribution
Date, its Initial Component Balance (A) plus any Subsequent Recoveries added to
the Component Balance of such Component pursuant to Section 4.02, (B) minus the
sum of all amounts applied in reduction of the principal balance of such
Component and Realized Losses allocated thereto and increased due to the receipt
of Subsequent Recoveries.
Component Certificates: As specified in the Preliminary Statement.
Co-op Shares: Shares issued by a Cooperative Corporation.
Cooperative Corporation: The entity that holds title (fee or an
acceptable leasehold estate) to the real property and improvements constituting
the Cooperative Property and that governs the Cooperative Property, which
Cooperative Corporation must qualify as a Cooperative Housing Corporation under
section 216 of the Code.
Cooperative Loan: Any Mortgage Loan secured by Co-op Shares and a
Proprietary Lease.
Cooperative Property: The real property and improvements owned by the
Cooperative Corporation, including the allocation of individual dwelling units
to the holders of the Co-op Shares of the Cooperative Corporation.
Cooperative Unit: A single family dwelling located in a Cooperative
Property.
Corporate Trust Office: The designated office of the Trustee in the
State of California at which at any particular time its corporate trust business
with respect to this Agreement is administered, which office at the date of the
execution of this Agreement is located at ▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: Mortgage Administration-IN0701 (IndyMac MBS, Inc.,
Residential Asset Securitization Trust 2007-A1, Mortgage Pass-Through
Certificates, Series 2007-A), and which is the address to which notices to and
correspondence with the Trustee should be directed. With respect to the
Certificate Registrar, the designated office for presentment and surrender of
Certificates for registration of transfer, exchange or final payment thereof is
located at DB Services Tennessee, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: Transfer Unit.
Corridor Contract: The interest rate corridor agreement between the
Supplemental Interest Trust and the Cap Counterparty evidenced by confirmation
number FXNEC9116 relating to the Class A-3 Certificates, a form of which is
attached to this Agreement as Exhibit P-1.
10
Cut-off Date: January 1, 2007.
Cut-off Date Pool Principal Balance: $386,577,357.06.
Cut-off Date Principal Balance: As to any Mortgage Loan, its Stated
Principal Balance as of the close of business on the Cut-off Date.
Debt Service Reduction: For any Mortgage Loan, a reduction by a court
of competent jurisdiction in a proceeding under the Bankruptcy Code in the
Scheduled Payment for the Mortgage Loan that became final and non-appealable,
except a reduction resulting from a Deficient Valuation or a reduction that
results in a permanent forgiveness of principal.
Defective Mortgage Loan: Any Mortgage Loan that is required to be
repurchased pursuant to Section 2.02 or 2.03.
Deficient Valuation: For any Mortgage Loan, a valuation by a court of
competent jurisdiction of the Mortgaged Property in an amount less than the then
outstanding indebtedness under the Mortgage Loan, or any reduction in the amount
of principal to be paid in connection with any Scheduled Payment that results in
a permanent forgiveness of principal, which valuation or reduction results from
an order of the court that is final and non-appealable in a proceeding under the
Bankruptcy Code.
Definitive Certificates: Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 5.02(e).
Delay Certificates: As specified in the Preliminary Statement.
Delay Delivery Certification: A certification substantially in the
form of Exhibit G-2.
Delay Delivery Mortgage Loans: The Mortgage Loans identified on the
Mortgage Loan Schedule for which none of a related Mortgage File or neither the
Mortgage Note nor a lost note affidavit for a lost Mortgage Note has been
delivered to the Trustee by the Closing Date. The Depositor shall deliver the
Mortgage Files to the Trustee:
(A) for at least 70% of the Mortgage Loans, not later than the Closing
Date, and
(B) for the remaining 30% of the Mortgage Loans, not later than five
Business Days following the Closing Date.
To the extent that the Seller is in possession of any Mortgage File for
any Delay Delivery Mortgage Loan, until delivery of the Mortgage File to the
Trustee as provided in Section 2.01, the Seller shall hold the files as
Servicer, as agent and in trust for the Trustee.
Deleted Mortgage Loan: As defined in Section 2.03(c).
Delinquent: A Mortgage Loan is "Delinquent" if any monthly payment due
on a Due Date is not made by the close of business on the next scheduled Due
Date for such Mortgage Loan. A Mortgage Loan is "30 days Delinquent" if such
monthly payment has not been received by the close of business on the
corresponding day of the month immediately succeeding the month in which such
monthly payment was due. The determination of whether a Mortgage Loan is "60
days Delinquent", "90 days Delinquent", etc. shall be made in a like manner.
11
Denomination: For each Certificate, the amount on the face of the
Certificate as the "Initial Certificate Balance of this Certificate" or the
"Initial Notional Amount of this Certificate" or, if neither of the foregoing,
the Percentage Interest appearing on the face of the Certificate.
Depositor: IndyMac MBS, Inc., a Delaware corporation, or its
successor in interest.
Depository: The initial Depository shall be The Depository Trust
Company, the nominee of which is CEDE & Co., as the registered Holder of the
Book-Entry Certificates. The Depository shall at all times be a "clearing
corporation" as defined in Section 8-102(a)(5) of the UCC.
Depository Participant: A broker, dealer, bank, or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Derivative Notional Balance: For each Distribution Date prior to the
Termination Date, the amount described in Schedule 1 to the Prospectus
Supplement. After the Termination Date, the Derivative Notional Balance will be
equal to zero.
Determination Date: As to any Distribution Date, the 18th day of each
month or if that day is not a Business Day the next Business Day, except that if
the next Business Day is less than two Business Days before the related
Distribution Date, then the Determination Date shall be the Business Day
preceding the 18th day of the month.
Discount Mortgage Loan: Any Mortgage Loan with an Adjusted Net Mortgage
Rate that is less than the Required Coupon.
Distribution Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.06(e) in the name of the Trustee
for the benefit of the Certificateholders and designated "Deutsche Bank National
Trust Company in trust for registered holders of Residential Asset
Securitization Trust 2007-A1, Mortgage Pass-Through Certificates, Series
2007-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 February 2007.
Due Date: For any Mortgage Loan and Distribution Date, the first day of
the month in which such Distribution Date occurs.
Due Period: For any Distribution Date, the period commencing on the
second day of the month preceding the month in which the Distribution Date
occurs and ending on the first day of the month in which the Distribution Date
occurs.
▇▇▇▇▇: The Commission's Electronic Data Gathering, Analysis and
Retrieval system.
Eligible Account: Any of
12
(i) an account or accounts maintained with a federal or state chartered
depository institution or trust company the short-term unsecured debt
obligations of which (or, in the case of a depository institution or trust
company that is the principal subsidiary of a holding company, the debt
obligations of such holding company) have the highest short-term ratings of
▇▇▇▇▇'▇ or Fitch and one of the two highest short-term ratings of S&P, if S&P is
a Rating Agency at the time any amounts are held on deposit therein, or
(ii) an account or accounts in a depository institution or trust
company in which such accounts are insured by the FDIC (to the limits
established by the FDIC) and the uninsured deposits in which accounts are
otherwise secured such that, as evidenced by an Opinion of Counsel delivered to
the Trustee and to each Rating Agency, the Certificateholders have a claim with
respect to the funds in such account or a perfected first priority security
interest against any collateral (which shall be limited to Permitted
Investments) securing such funds that is superior to claims of any other
depositors or creditors of the depository institution or trust company in which
such account is maintained, or
(iii) a trust account or accounts maintained with (a) the trust
department of a federal or state chartered depository institution or (b) a trust
company, acting in its fiduciary capacity or
(iv) any other account acceptable to each Rating Agency.
Eligible Accounts may bear interest, and may include, if otherwise qualified
under this definition, accounts maintained with the Trustee.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements of the
Underwriter's Exemption.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
Escrow Account: The Eligible Account or Accounts established and
maintained pursuant to Section 3.07(a).
Event of Default: As defined in Section 7.01.
Excess Loss: The amount of any (i) Fraud Loss on the Mortgage Loans
realized after the Fraud Loss Coverage Termination Date, (ii) Special Hazard
Loss on the Mortgage Loans realized after the Special Hazard Coverage
Termination Date or (iii) Bankruptcy Loss on the Mortgage Loans realized after
the Bankruptcy Coverage Termination Date.
Excess Proceeds: For any Liquidated Mortgage Loan, the excess of
(a) all Liquidation Proceeds from the Mortgage Loan received in the
calendar month in which the Mortgage Loan became a Liquidated Mortgage Loan, net
of any amounts previously reimbursed to the Servicer as Nonrecoverable Advances
with respect to the Mortgage Loan pursuant to Section 3.09(a)(iii), over
(b) the sum of (i) the unpaid principal balance of the Liquidated
Mortgage Loan as of the Due Date in the month in which the Mortgage Loan became
a Liquidated Mortgage Loan plus (ii) accrued interest at the Mortgage Rate from
the Due Date for which interest was last paid or advanced (and not
13
reimbursed) to Certificateholders up to the Due Date applicable to the
Distribution Date following the calendar month during which the liquidation
occurred.
Exchange Act: The Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
Exchange Act Reports: Any reports on Form 10-D, Form 8-K and Form 10-K
required to be filed by the Depositor with respect to the Trust Fund under the
Exchange Act.
Expense Fee Rate: As to each Mortgage Loan, the sum of (a) the related
Servicing Fee Rate and (b) the Trustee Fee Rate.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of the
Emergency Home Finance Act of 1970, as amended, or any successor thereto.
Fitch: Fitch, Inc., or any successor thereto. If Fitch is designated as
a Rating Agency in the Preliminary Statement, for purposes of Section 10.05(b)
the address for notices to Fitch shall be Fitch, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: MBS Monitoring - IndyMac 2007-A, or any other
address Fitch furnishes to the Depositor and the Servicer.
FNMA: The Federal National Mortgage Association, a federally chartered
and privately owned corporation organized and existing under the Federal
National Mortgage Association Charter Act, or any successor thereto.
Form 10-D Disclosure Item: With respect to any Person, any material
litigation or governmental proceedings pending against such Person, or against
any of the Trust Fund, the Depositor, the Trustee or the Servicer, if such
Person has actual knowledge thereof.
Form 10-K Disclosure Item: With respect to any Person, (a) Form 10-D
Disclosure Item, and (b) any affiliations or relationships between such Person
and any Item 1119 Party.
Fraud Loan: A Liquidated Mortgage Loan as to which a Fraud Loss has
occurred.
Fraud Loss Coverage Amount: As of the Closing Date, $7,731,547, subject
to reduction from time to time, by the amount of Fraud Losses allocated to the
Certificates. In addition, on each anniversary of the Cut-off Date, the Fraud
Loss Coverage Amount will be reduced as follows: (a) on the first, second, third
and fourth anniversaries of the Cut-off Date, to an amount equal to the lesser
of (i) 2% of the then current Stated Principal Balance of the Mortgage Loans in
the case of the first such anniversary and 1% of the then current Stated
Principal Balance of the Mortgage Loans in the case of the second, third and
fourth such anniversaries and (ii) the excess of the Fraud Loss Coverage Amount
as of the preceding anniversary of the Cut-off Date over the cumulative amount
of Fraud Losses allocated to the Certificates since such preceding anniversary;
and (b) on the fifth anniversary of the Cut-off Date, to zero.
Fraud Loss Coverage Termination Date: The point in time at which the
Fraud Loss Coverage Amount is reduced to zero.
Fraud Losses: Realized Losses on Mortgage Loans as to which a loss is
sustained by reason of a default arising from fraud, dishonesty or
misrepresentation in connection with the related Mortgage Loan,
14
including a loss by reason of the denial of coverage under any related Primary
Insurance Policy because of such fraud, dishonesty or misrepresentation.
Indirect Participant: A broker, dealer, bank, or other financial
institution or other Person that clears through or maintains a custodial
relationship with a Depository Participant.
Initial Bankruptcy Loss Coverage Amount: $133,025.
Initial Component Balance: As specified in the Preliminary Statement.
Initial LIBOR Rate: 5.32% per annum.
Insurance Policy: For any Mortgage Loan included in the Trust Fund, any
insurance policy, including all riders and endorsements thereto in effect,
including any replacement policy or policies for any Insurance Policies.
Insurance Proceeds: Proceeds paid by an insurer pursuant to any
Insurance Policy, in each case other than any amount included in such Insurance
Proceeds in respect of Insured Expenses.
Insured Expenses: Expenses covered by an Insurance Policy or any other
insurance policy with respect to the Mortgage Loans.
Interest Accrual Period: With respect to each Class of Delay
Certificates and any Distribution Date, the calendar month prior to the month of
such Distribution Date. With respect to each Class of Non-Delay Certificates and
any Distribution Date, the one-month period commencing on the 25th day of the
month preceding the month in which such Distribution Date occurs (in the case of
the first Distribution Date, the Closing Date) and ending on the 24th day of the
month in which such Distribution Date occurs. All Classes of Certificates will
accrue interest on the basis of a 360-day year consisting of twelve 30-day
months.
Interest Determination Date: With respect to (a) any Interest Accrual
Period for any LIBOR Certificates and (b) any Interest Accrual Period for the
COFI Certificates for which the applicable Index is LIBOR, the second Business
Day prior to the first day of such Interest Accrual Period.
Interest Settlement Rate: As defined in Section 4.09.
Item 1119 Party: The Depositor, the Seller, the Servicer, the Trustee,
the Cap Counterparty and any other material transaction party, as identified in
Exhibit T, as updated pursuant to Section 11.04.
Last Scheduled Distribution Date: The Distribution Date in the month
immediately following the month of the latest scheduled maturity date for any of
the Mortgage Loans.
Latest Possible Maturity Date: The Distribution Date following the
fourth anniversary of the scheduled maturity date of the Mortgage Loan having
the latest scheduled maturity date as of the Cut-off Date.
Lender PMI Loans: Mortgage Loans with respect to which the lender
rather than the borrower acquired the primary mortgage guaranty insurance and
charged the related borrower an interest premium.
LIBOR: The London interbank offered rate for one month United States
dollar deposits calculated in the manner described in Section 4.09.
15
LIBOR Determination Date: For any Interest Accrual Period, the second
London Business Day prior to the commencement of such Interest Accrual Period.
Limited Exchange Act Reporting Obligations: The obligations of the
Servicer under Section 3.17(b), Section 6.02 and Section 6.04 with respect to
notice and information to be provided to the Depositor and Article 11 (except
Section 11.07(a)(i) and (ii)).
Liquidated Mortgage Loan: For any Distribution Date, a defaulted
Mortgage Loan (including any REO Property) that was liquidated in the calendar
month preceding the month of the Distribution Date and as to which the Servicer
has certified (in accordance with this Agreement) that it has received all
amounts it expects to receive in connection with the liquidation of the Mortgage
Loan, including the final disposition of an REO Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds regardless
of when received, received in connection with the partial or complete
liquidation of defaulted Mortgage Loans, whether through trustee's sale,
foreclosure sale, or otherwise or amounts received in connection with any
condemnation or partial release of a Mortgaged Property, and any other proceeds
received in connection with an REO Property, less the sum of related
unreimbursed Servicing Fees, Servicing Advances, and Advances.
Loan Group: Not applicable.
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.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any
successor thereto.
MERS Mortgage Loan: Any Mortgage Loan registered with MERS on the
MERS(R) System.
MERS(R) System: The system of recording transfers of mortgages
electronically maintained by MERS.
MIN: The mortgage identification number for any MERS Mortgage Loan.
MOM Loan: Any Mortgage Loan as to which MERS is acting as mortgagee,
solely as nominee for the originator of such Mortgage Loan and its successors
and assigns.
Moneyline Telerate Page 3750: The display page currently so designated
on the Moneyline Telerate Information Services, Inc. (or any page replacing that
page on that service for the purpose of displaying London inter-bank offered
rates of major banks).
16
Monthly Statement: The statement delivered to the Certificateholders
pursuant to Section 4.06.
Moody's: ▇▇▇▇▇'▇ Investors Service, Inc., or any successor thereto.
If ▇▇▇▇▇'▇ is designated as a Rating Agency in the Preliminary Statement, for
purposes of Section 10.05(b) the address for notices to Moody's shall be
▇▇▇▇▇'▇ Investors Service, Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Residential Loan Monitoring Group, or any other address that
Moody's furnishes to the Depositor and the Servicer.
Mortgage: The mortgage, deed of trust, or other instrument creating a
first lien on an estate in fee simple or leasehold interest in real property
securing a Mortgage Note.
Mortgage File: The mortgage documents listed in Section 2.01 pertaining
to a particular Mortgage Loan and any additional documents delivered to the
Trustee to be added to the Mortgage File pursuant to this Agreement.
Mortgage Loans: Such of the mortgage loans transferred and assigned to
the Trustee pursuant to this Agreement, as from time to time are held as a part
of the Trust Fund (including any REO Property), the Mortgage Loans so held being
identified on the Mortgage Loan Schedule, notwithstanding foreclosure or other
acquisition of title of the related Mortgaged Property.
Mortgage Loan Schedule: As of any date, the list set forth in Schedule
I of Mortgage Loans included in the Trust Fund on that date. The Mortgage Loan
Schedule shall be prepared by the Seller and shall set forth the following
information with respect to each Mortgage Loan:
(i) the loan number;
(ii) the street address of the Mortgaged Property,
including the zip code;
(iii) the maturity date;
(iv) the original principal balance;
(v) the Cut-off Date Principal Balance;
(vi) the first payment date of the Mortgage Loan;
(vii) the Scheduled Payment in effect as of the Cut-off
Date;
(viii) the 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;
17
(xiii) the type of documentation program pursuant to which
the Mortgage Loan was originated;
(xiv) a code indicating whether the Mortgage Loan is a
borrower-paid mortgage insurance loan;
(xv) the Servicing Fee Rate;
(xvi) a code indicating whether the Mortgage Loan is a
Lender PMI Loan;
(xvii) the coverage amount of any mortgage insurance;
(xviii) with respect to the Lender PMI Loans, the interest
premium charged by the lender;
(xix) a code indicating whether the Mortgage Loan is a
Delay Delivery Mortgage Loan; and
(xx) a code indicating whether the Mortgage Loan is a MERS
Mortgage Loan.
The schedule shall also set forth the total of the amounts described under (v)
above for all of the Mortgage Loans.
Mortgage Note: The original executed note or other evidence of the
indebtedness of a Mortgagor under a Mortgage Loan.
Mortgage Rate: The annual rate of interest borne by a Mortgage Note
from time to time (net of the interest premium for any Lender PMI Loan).
Mortgaged Property: The underlying property securing a Mortgage Loan,
which, with respect to a Cooperative Loan, is the related Co-op Shares and
Proprietary Lease.
Mortgagor: The obligors on a Mortgage Note.
National Cost of Funds Index: The National Monthly Median Cost of
Funds Ratio to SAIF-Insured Institutions published by the OTS.
Net Prepayment Interest Shortfall: As to any Distribution Date, the
amount by which the aggregate of Prepayment Interest Shortfalls for such
Distribution Date exceeds the Compensating Interest for such Distribution Date.
Non-Delay Certificates: As specified in the Preliminary Statement.
Non-Discount Mortgage Loan: Any Mortgage Loan with an Adjusted Net
Mortgage Rate that is greater than or equal to the Required Coupon.
Non-PO Formula Principal Amount: As to any Distribution Date, the sum
of (i) the applicable Non-PO Percentage of (a) all monthly payments of principal
due on each Mortgage Loan on the related Due Date, (b) the principal portion of
the purchase price of each Mortgage Loan that was repurchased by the Seller
pursuant to this Agreement as of such Distribution Date, excluding any Mortgage
Loan that was repurchased due to a modification of the Mortgage Rate, (c) the
Substitution Adjustment Amount in connection with any Deleted Mortgage Loan
received with respect to such Distribution Date, (d) any
18
Insurance Proceeds or Liquidation Proceeds allocable to recoveries of
principal of Mortgage Loans that are not yet Liquidated Mortgage Loans
received during the calendar month preceding the month of such Distribution
Date, (e) with respect to each Mortgage Loan that became a Liquidated Mortgage
Loan during the calendar month preceding the month of such Distribution Date,
the amount of Liquidation Proceeds allocable to principal received with
respect to such Mortgage Loan, and (f) all partial and full Principal
Prepayments received during the related Prepayment Period and (ii) (A) any
Subsequent Recoveries received during the calendar month preceding the month
of such Distribution Date, or (B) with respect to Subsequent Recoveries
attributable to a Discount Mortgage Loan that incurred (1) an Excess Loss or
(2) a Realized Loss after the Senior Credit Support Depletion Date, the Non-PO
Percentage of any Subsequent Recoveries received during the calendar month
preceding the month of such Distribution Date.
Non-PO Percentage: As to any Discount Mortgage Loan, a fraction
(expressed as a percentage) the numerator of which is the Adjusted Net Mortgage
Rate of such Discount Mortgage Loan and the denominator of which is the Required
Coupon. As to any Non-Discount Mortgage Loan, 100%.
Nonrecoverable Advance: Any portion of an Advance previously made or
proposed to be made by the Servicer, that, in the good faith judgment of the
Servicer, will not be ultimately recoverable by the Servicer from the related
Mortgagor, related Liquidation Proceeds or otherwise.
Notice of Final Distribution: The notice to be provided pursuant to
Section 9.02 to the effect that final distribution on any of the Certificates
shall be made only upon presentation and surrender thereof.
Notional Amount: With respect to the Class A-X Certificates and any
Distribution Date, the aggregate Stated Principal Balance of the Non-Discount
Mortgage Loans as of the first day of the related Due Period (after giving
effect to Principal Prepayments received in the Prepayment Period ending during
that Due Period). With respect to the Class A-4 Certificates and any
Distribution Date, the Class Certificate Balance of the Class A-3 Certificates
immediately prior to that Distribution Date. With respect to the Class A-6
Certificates and any Distribution Date, an amount equal to the Class Certificate
Balance of the Class A-5 Certificates immediately prior to that Distribution
Date. With respect to the Class A-10 Certificates and any Distribution Date,
4.16666666666667% of the Class Certificate Balance of the Class A-9 Certificates
immediately prior to that Distribution Date.
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 Servicer, or (ii) if provided for in this
Agreement, signed by a Servicing Officer, as the case may be, and delivered to
the Depositor and the Trustee as required by this Agreement.
Opinion of Counsel: For the interpretation or application of the REMIC
Provisions, a written opinion of counsel who (i) is in fact independent of the
Depositor and the Servicer, (ii) does not have any direct financial interest in
the Depositor or the Servicer or in any affiliate of either, and (iii) is not
connected with the Depositor or the Servicer as an officer, employee, promoter,
underwriter, trustee, partner, director, or person performing similar functions.
Otherwise, a written opinion of counsel who may be counsel for the Depositor or
the Servicer, including in-house counsel, reasonably acceptable to the Trustee.
19
Original Applicable Credit Support Percentage: With respect to each of
the following Classes of Subordinated Certificates, the corresponding percentage
described below:
Class B-1.............. 5.25%
Class B-2.............. 3.25%
Class B-3.............. 2.10%
Class B-4.............. 1.50%
Class B-5.............. 0.85%
Class B-6.............. 0.35%
Original Mortgage Loan: The Mortgage Loan refinanced in connection
with the origination of a Refinance Loan.
Original Subordinated Principal Balance: The aggregate Class
Certificate Balance of the Subordinated Certificates as of the Closing Date
OTS: The Office of Thrift Supervision.
Outside Reference Date: Not applicable.
Outstanding: For the Certificates as of any date of determination,
all Certificates theretofore executed and authenticated under this Agreement
except:
(i) Certificates theretofore canceled by the Trustee or
delivered to the Trustee for cancellation; and
(ii) Certificates in exchange for which or in lieu of
which other Certificates have been executed and
delivered by the Trustee pursuant to this Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan with a
Stated Principal Balance greater than zero that was not the subject of a
Principal Prepayment in Full before the Due Date or during the related
Prepayment Period and that did not become a Liquidated Mortgage Loan before the
Due Date.
Overcollateralized Group: Not applicable.
Ownership Interest: As to any Residual Certificate, any ownership
interest in the Certificate including any interest in the Certificate as its
Holder and any other interest therein, whether direct or indirect, legal or
beneficial.
Pass-Through Rate: For each Class of Certificates, the per annum rate
set forth or calculated in the manner described in the Preliminary Statement.
Percentage Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class, the
percentage interest being set forth on its face or equal to the percentage
obtained by dividing the Denomination of the Certificate by the aggregate of the
Denominations of all Certificates of the same Class.
Performance Certification: As defined in Section 11.05.
20
Permitted Investments: At any time, any of the following:
(i) obligations of the United States or any agency thereof backed by
the full faith and credit of the United States;
(ii) general obligations of or obligations guaranteed by any state of
the United States or the District of Columbia receiving the highest long-term
debt rating of each Rating Agency, or any lower rating that will not result in
the downgrading, qualification or withdrawal of the ratings then assigned to the
Certificates by the Rating Agencies, as evidenced by a signed writing delivered
by each Rating Agency;
(iii) commercial or finance company paper that is then receiving the
highest commercial or finance company paper rating of each Rating Agency, or any
lower rating that will not result in the downgrading, qualification or
withdrawal of the ratings then assigned to the Certificates by the Rating
Agencies , as evidenced by a signed writing delivered by each Rating Agency;
(iv) certificates of deposit, demand or time deposits, or bankers'
acceptances issued by any depository institution or trust company incorporated
under the laws of the United States or of any state thereof and subject to
supervision and examination by federal or state banking authorities, provided
that the commercial paper or long-term unsecured debt obligations of the
depository institution or trust company (or in the case of the principal
depository institution in a holding company system, the commercial paper or
long-term unsecured debt obligations of the holding company, but only if ▇▇▇▇▇'▇
is not a Rating Agency) are then rated one of the two highest long-term and the
highest short-term ratings of each Rating Agency for the securities, or any
lower rating that will not result in the downgrading, qualification or
withdrawal of the ratings then assigned to the Certificates by the Rating
Agencies, as evidenced by a signed writing delivered by each Rating Agency;
(v) demand or time deposits or certificates of deposit issued by any
bank or trust company or savings institution to the extent that the deposits are
fully insured by the FDIC;
(vi) guaranteed reinvestment agreements issued by any bank, insurance
company, or other corporation acceptable to the Rating Agencies at the time of
the issuance of the agreements, as evidenced by a signed writing delivered by
each Rating Agency;
(vii) repurchase obligations with respect to any security described in
clauses (i) and (ii) above, in either case entered into with a depository
institution or trust company (acting as principal) described in clause (iv)
above; provided that such repurchase obligation would be accounted for as a
financing arrangement under generally accepted accounting principles;
(viii) securities (other than stripped bonds, stripped coupons, or
instruments sold at a purchase price in excess of 115% of their face amount)
bearing interest or sold at a discount issued by any corporation incorporated
under the laws of the United States or any state thereof that, at the time of
the investment, have one of the two highest ratings of each Rating Agency
(except if the Rating Agency is Moody's the rating shall be the highest
commercial paper rating of Moody's for the securities), or any lower rating that
will not result in the downgrading, qualification or withdrawal of the ratings
then assigned to the Certificates by the Rating Agencies, as evidenced by a
signed writing delivered by each Rating Agency and that have a maturity date
occurring no more than 365 days from their date of issuance;
(ix) units of a taxable money-market portfolio having the highest
rating assigned by each Rating Agency (except (i) if Fitch is a Rating Agency
and has not rated the portfolio, the highest rating assigned by Moody's and (ii)
if S&P is a Rating Agency, "AAAm" or "AAAM-G" by S&P) and
21
restricted to obligations issued or guaranteed by the United States of America
or entities whose obligations are backed by the full faith and credit of the
United States of America and repurchase agreements collateralized by such
obligations; and
(x) any other investments bearing interest or sold at a discount
acceptable to each Rating Agency that will not result in the downgrading,
qualification or withdrawal of the ratings then assigned to the Certificates by
the Rating Agencies, as evidenced by a signed writing delivered by each Rating
Agency.
No Permitted Investment may (i) evidence the right to receive interest
only payments with respect to the obligations underlying the instrument, (ii) be
sold or disposed of before its maturity or (iii) be any obligation of the Seller
or any of its Affiliates. Any Permitted Investment shall be relatively risk free
and no options or voting rights shall be exercised with respect to any Permitted
Investment. Any Permitted Investment shall be sold or disposed of in accordance
with Financial Accounting Standard 140, paragraph 35c(6) in effect as of the
Closing Date.
Permitted Transferee: Any person other than
(i) the United States, any State or political subdivision thereof, or
any agency or instrumentality of any of the foregoing,
(ii) a foreign government, International Organization, or any agency or
instrumentality of either of the foregoing,
(iii) an organization (except certain farmers' cooperatives described
in section 521 of the Code) that is exempt from tax imposed by Chapter 1 of the
Code (including the tax imposed by section 511 of the Code on unrelated business
taxable income) on any excess inclusions (as defined in section 860E(c)(1) of
the Code) with respect to any Residual Certificate,
(iv) a rural electric and telephone cooperatives described in section
1381(a)(2)(C) of the Code,
(v) an "electing large partnership" as defined in section 775 of the
Code,
(vi) a Person that is not a U.S. Person, and
(vii) any other Person so designated by the Depositor based on an
Opinion of Counsel that the Transfer of an Ownership Interest in a Residual
Certificate to the Person may cause any REMIC created hereunder to fail to
qualify as a REMIC at any time that the Certificates are outstanding.
Person: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization, or government, or any agency or political
subdivision thereof.
Physical Certificates: As specified in the Preliminary Statement.
Planned Balance: Not applicable.
Planned Principal Classes: As specified in the Preliminary Statement.
22
PO Formula Principal Amount: As to any Distribution Date and the Class
PO Certificates, the sum of (i) the sum of the applicable PO Percentage of (a)
the principal portion of each Scheduled Payment (without giving effect, prior to
the Bankruptcy Coverage Termination Date, to any reductions thereof caused by
any Debt Service Reductions or Deficient Valuations) due on each Mortgage Loan
on the related Due Date, (b) the Stated Principal Balance of each Mortgage Loan
that was repurchased by the Seller or purchased by the Servicer pursuant to this
Agreement as of such Distribution Date, excluding any Mortgage Loan that was
repurchased due to a modification of the Mortgage Loan, (c) the Substitution
Adjustment Amount in connection with any Deleted Mortgage Loan received with
respect to such Distribution Date, (d) any Insurance Proceeds or Liquidation
Proceeds allocable to recoveries of principal of Mortgage Loans that are not yet
Liquidated Mortgage Loans received during the calendar month preceding the month
of such Distribution Date, (e) with respect to each Mortgage Loan that became a
Liquidated Mortgage Loan during the month preceding the calendar month of such
Distribution Date, the amount of Liquidation Proceeds allocable to principal
received with respect to such Mortgage Loan during the month preceding the month
of such Distribution Date, and (f) all Principal Prepayments with respect to the
Mortgage Loans received during the related Prepayment Period, and (ii) with
respect to Subsequent Recoveries attributable to a Discount Mortgage Loan that
incurred (1) an Excess Loss or (2) a Realized Loss after the Senior Credit
Support Depletion Date, the PO Percentage of any Subsequent Recoveries received
during the calendar month preceding the month of such Distribution Date.
PO Percentage: As to any Discount Mortgage Loan, a fraction (expressed
as a percentage) the numerator of which is the excess of the Required Coupon
over the Adjusted Net Mortgage Rate of such Discount Mortgage Loan and the
denominator of which is such Required Coupon. As to any Non-Discount Mortgage
Loan, 0%.
Pool Stated Principal Balance: The aggregate Stated Principal Balance
of the Mortgage Loans.
Prepayment Assumption: The prepayment model used in the Prospectus
Supplement.
Prepayment Charge: As to a Mortgage Loan, any charge payable by a
Mortgagor in connection with certain partial prepayments and all prepayments in
full made within the related Prepayment Charge Period, the Prepayment Charges
with respect to each applicable Mortgage Loan so held by the Trust Fund being
identified in the Mortgage Loan Schedule.
Prepayment Charge Period: As to any Mortgage Loan, the period of time
during which a Prepayment Charge may be imposed.
Prepayment Interest Excess: As to any Principal Prepayment received by
the Servicer on a Mortgage Loan from the first day through the fifteenth day of
any calendar month other than the month of the Cut-off Date, all amounts paid by
the related Mortgagor in respect of interest on such Principal Prepayment. All
Prepayment Interest Excess shall be retained by the Servicer as additional
servicing compensation.
Prepayment Interest Shortfall: As to any Distribution Date, Mortgage
Loan and Principal Prepayment received on or after the sixteenth day of the
month preceding the month of such Distribution Date (or, in the case of the
first Distribution Date, on or after the Cut-off Date) and on or before the last
day of the month preceding the month of such Distribution Date, the amount, if
any, by which one month's interest at the related Mortgage Rate, net of the
Servicing Fee Rate, on such Principal Prepayment exceeds the amount of interest
paid in connection with such Principal Prepayment.
Prepayment Period: As to any Distribution Date and related Due Date,
the period from and including the 16th day of the month immediately prior to the
month of such Distribution Date (or, in the
23
case of the first Distribution Date, from the Cut-off Date) and to and
including the 15th day of the month of such Distribution Date.
Prepayment Shift Percentage: For any Distribution Date occurring during
the five years beginning on the first Distribution Date, 0%. Thereafter, the
Shift Percentage for any Distribution Date occurring on or after the fifth
anniversary of the first Distribution Date as follows: for any Distribution Date
in the first year thereafter, 30%; for any Distribution Date in the second year
thereafter, 40%; for any Distribution Date in the third year thereafter, 60%;
for any Distribution Date in the fourth year thereafter, 80%; and for any
Distribution Date thereafter, 100%.
Primary Insurance Policy: Each policy of primary mortgage guaranty
insurance or any replacement policy therefor with respect to any Mortgage Loan.
Principal Balance Schedule: Not applicable.
Principal Only Certificates: As specified in the Preliminary
Statement.
Principal Prepayment: Any payment of principal by a Mortgagor on a
Mortgage Loan (including the principal portion of the Purchase Price of any
Mortgage Loan purchased pursuant to Section 3.12) that is received in advance of
its scheduled Due Date and is not accompanied by an amount representing
scheduled interest due on any date in any month after the month of prepayment.
The Servicer shall apply partial Principal Prepayments in accordance with the
related Mortgage Note.
Principal Prepayment in Full: Any Principal Prepayment made by a
Mortgagor of the entire principal balance of a Mortgage Loan.
Priority Amount: For any Distribution Date, the sum of (i) the product
of (A) the Scheduled Principal Distribution Amount, (B) the Priority Percentage
and (C) the Shift Percentage and (ii) the product of (A) the Unscheduled
Principal Distribution Amount, (B) the Priority Percentage and (C) the
Prepayment Shift Percentage.
Priority Percentage: For any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is the aggregate Class
Certificate Balance of the Class A-1 and Class A-2 Certificates immediately
prior to that Distribution Date, and the denominator of which is the aggregate
Class Certificate Balance of the Certificates (other than the Class PO
Certificates) immediately prior to that Distribution Date.
Private Certificates: As specified in the Preliminary Statement.
Pro Rata Share: As to any Distribution Date and any Class of
Subordinated Certificates, the portion of the Subordinated Principal
Distribution Amount allocable to such Class, equal to the product of the
Subordinated Principal Distribution Amount on such Distribution Date and a
fraction, the numerator of which is the related Class Certificate Balance
thereof and the denominator of which is the aggregate Class Certificate Balance
of the Subordinated Certificates, in each case immediately prior to such
Distribution Date.
Proprietary Lease: For any Cooperative Unit, a lease or occupancy
agreement between a Cooperative Corporation and a holder of related Co-op
Shares.
Prospectus Supplement: The Prospectus Supplement dated January 30,
2007, relating to the Offered Certificates, and any supplement thereto.
24
PUD: Planned Unit Development.
Purchase Price: For any Mortgage Loan required to be purchased by the
Seller pursuant to Section 2.02 or 2.03 or purchased by the Servicer pursuant
to Section 3.12, the sum of
(i) 100% of the unpaid principal balance of the Mortgage Loan on the
date of the purchase,
(ii) accrued and unpaid interest on the Mortgage Loan at the applicable
Mortgage Rate (or at the applicable Adjusted Mortgage Rate if (x) the purchaser
is the Servicer or (y) if the purchaser is the Seller and the Seller is the
Servicer) from the date through which interest was last paid by the Mortgagor to
the Due Date in the month in which the Purchase Price is to be distributed to
Certificateholders, net of any unreimbursed Advances made by the Servicer on the
Mortgage Loan, and
(iii) any costs and damages incurred by the Trust Fund in connection
with any violation by the Mortgage Loan of any predatory or abusive lending law.
If the Mortgage Loan is purchased pursuant to Section 3.12, the
interest component of the Purchase Price shall be computed (i) on the basis of
the applicable Adjusted Mortgage Rate before giving effect to the related
modification and (ii) from the date to which interest was last paid to the date
on which the Mortgage Loan is assigned to the Servicer pursuant to Section 3.12.
Qualified Insurer: A mortgage guaranty insurance company duly qualified
as such under the laws of the state of its principal place of business and each
state having jurisdiction over the insurer in connection with the insurance
policy issued by the insurer, duly authorized and licensed in such states to
transact a mortgage guaranty insurance business in such states and to write the
insurance provided by the insurance policy issued by it, approved as a FNMA- or
FHLMC-approved mortgage insurer or having a claims paying ability rating of at
least "AA" or equivalent rating by a nationally recognized statistical rating
organization. Any replacement insurer with respect to a Mortgage Loan must have
at least as high a claims paying ability rating as the insurer it replaces had
on the Closing Date.
Rating Agency: Each of the Rating Agencies specified in the Preliminary
Statement. If any of them or a successor is no longer in existence, "Rating
Agency" shall be the nationally recognized statistical rating organization, or
other comparable Person, designated by the Depositor and identified as a "Rating
Agency" in the Underwriters' Exemption, notice of which designation shall be
given to the Trustee. References to a given rating or rating category of a
Rating Agency means the rating category without giving effect to any modifiers.
Realized Loss: With respect to each Liquidated Mortgage Loan, an amount
(not less than zero or more than the Stated Principal Balance of the Mortgage
Loan) as of the date of such liquidation, equal to (i) the Stated Principal
Balance of the Liquidated Mortgage Loan as of the date of such liquidation, plus
(ii) interest at the Adjusted Net Mortgage Rate from the Due Date as to which
interest was last paid or advanced (and not reimbursed) to Certificateholders up
to the Due Date in the month in which Liquidation Proceeds are required to be
distributed on the Stated Principal Balance of such Liquidated Mortgage Loan
from time to time, minus (iii) the Liquidation Proceeds, if any, received during
the month in which such liquidation occurred, to the extent applied as
recoveries of interest at the Adjusted Net Mortgage Rate and to principal of the
Liquidated Mortgage Loan. With respect to each Mortgage Loan that has become the
subject of a Deficient Valuation, if the principal amount due under the related
Mortgage Note has been reduced, the difference between the principal balance of
the Mortgage Loan outstanding immediately prior to such Deficient Valuation and
the principal balance of the Mortgage Loan as reduced by the Deficient
Valuation. With respect to each Mortgage Loan that has become the
25
subject of a Debt Service Reduction and any Distribution Date, the amount, if
any, by which the principal portion of the related Scheduled Payment has been
reduced.
To the extent the Servicer receives Subsequent Recoveries with respect
to any Mortgage Loan, the amount of the Realized Loss with respect to that
Mortgage Loan will be reduced by such Subsequent Recoveries.
Recognition Agreement: For any Cooperative Loan, an agreement between
the Cooperative Corporation and the originator of the Mortgage Loan that
establishes the rights of the originator in the Cooperative Property.
Record Date: With respect to any Distribution Date and any Definitive
Certificate and the Delay Certificates, the close of business on the last
Business Day of the month preceding the month of that Distribution Date. With
respect to any Distribution Date and the Non-Delay Certificates as long as they
are Book-Entry Certificates, the Business Day immediately prior to such
Distribution Date.
Reference Bank: As defined in Section 4.09.
Refinance Loan: Any Mortgage Loan the proceeds of which are used to
refinance an Original Mortgage Loan.
Regular Certificates: As specified in the Preliminary Statement.
Regulation AB: Subpart 229.1100 - Asset Backed Securities (Regulation
AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from time to
time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005))
or by the staff of the Commission, or as may be provided by the Commission or
its staff from time to time.
Relief Act: The Servicemembers Civil Relief Act.
Relief Act Reductions: With respect to any Distribution Date and any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended calendar month as a result of
the application of the Relief Act or any similar state or local laws, the
amount, if any, by which (i) interest collectible on such Mortgage Loan for the
most recently ended calendar month is less than (ii) interest accrued thereon
for such month pursuant to the Mortgage Note.
REMIC: A "real estate mortgage investment conduit" within the meaning
of section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at sections 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
regulations promulgated thereunder, as the foregoing may be in effect from time
to time as well as provisions of applicable state laws.
REO Property: A Mortgaged Property acquired by the Trust Fund through
foreclosure or deed-in-lieu of foreclosure in connection with a defaulted
Mortgage Loan.
Reportable Event: Any event required to be reported on Form 8-K, and in
any event, the following:
26
(a) entry into a definitive agreement related to the Trust Fund, the
Certificates or the Mortgage Loans, or an amendment to a Transaction Document,
even if the Depositor is not a party to such agreement (e.g., a servicing
agreement with a servicer contemplated by Item 1108(a)(3) of Regulation AB);
(b) termination of a Transaction Document (other than by expiration of
the agreement on its stated termination date or as a result of all parties
completing their obligations under such agreement), even if the Depositor is not
a party to such agreement (e.g., a servicing agreement with a servicer
contemplated by Item 1108(a)(3) of Regulation AB);
(c) with respect to the Servicer only, if the Servicer becomes aware of
any bankruptcy or receivership with respect to the Seller, the Depositor, the
Servicer, the Trustee, the Cap Counterparty, any enhancement or support provider
contemplated by Items 1114(b) or 1115 of Regulation AB, or any other material
party contemplated by Item 1101(d)(1) of Regulation AB;
(d) with respect to the Trustee, the Servicer and the Depositor only,
the occurrence of an early amortization, performance trigger or other event,
including an Event of Default under this Agreement;
(e) any amendment to this Agreement;
(f) the resignation, removal, replacement, substitution of the Servicer
or the Trustee;
(g) with respect to the Servicer only, if the Servicer becomes aware
that (i) any material enhancement or support specified in Item 1114(a)(1)
through (3) of Regulation AB or Item 1115 of Regulation AB that was previously
applicable regarding one or more Classes of the Certificates has terminated
other than by expiration of the contract on its stated termination date or as a
result of all parties completing their obligations under such agreement; (ii)
any material enhancement specified in Item 1114(a)(1) through (3) of Regulation
AB or Item 1115 of Regulation AB has been added with respect to one or more
Classes of the Certificates; or (iii) any existing material enhancement or
support specified in Item 1114(a)(1) through (3) of Regulation AB or Item 1115
of Regulation AB with respect to one or more Classes of the Certificates has
been materially amended or modified; and
(h) with respect to the Trustee, the Servicer and the Depositor only, a
required distribution to Holders of the Certificates is not made as of the
required Distribution Date under this Agreement.
Reporting Subcontractor: With respect to the Servicer or the Trustee,
any Subcontractor determined by such Person pursuant to Section 11.08(b) to be
"participating in the servicing function" within the meaning of Item 1122 of
Regulation AB. References to a Reporting Subcontractor shall refer only to the
Subcontractor of such Person and shall not refer to Subcontractors generally.
Request for Release: The Request for Release submitted by the Servicer
to the Trustee, substantially in the form of Exhibits M and N, as appropriate.
Required Coupon: 6.00% per annum.
Required Insurance Policy: For any Mortgage Loan, any insurance
policy that is required to be maintained from time to time under this
Agreement.
Residual Certificates: As specified in the Preliminary Statement.
27
Responsible Officer: When used with respect to the Trustee, any
Managing Director, any Director, Vice President, any Assistant Vice President,
any Associate, any Assistant Secretary, any Trust Officer, or any other officer
of the Trustee customarily performing functions similar to those performed by
any of the above designated officers who at such time shall be officers to whom,
with respect to a particular matter, the matter is referred because of the
officer's knowledge of and familiarity with the particular subject and who has
direct responsibility for the administration of this Agreement.
Restricted Classes: As defined in Section 4.02(e).
SAIF: The Savings Association Insurance Fund, or any successor
thereto.
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification: As defined in Section 11.05.
S&P: Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
If S&P is designated as a Rating Agency in the Preliminary Statement, for
purposes of Section 10.05(b) the address for notices to S&P shall be Standard
& Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Mortgage Surveillance Monitoring, or any
other address that S&P furnishes to the Depositor and the Servicer.
Scheduled Balance: Not applicable.
Scheduled Classes: As specified in the Preliminary Statement.
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan due
on any Due Date allocable to principal and/or interest on such Mortgage Loan
which, unless otherwise specified herein, shall give effect to any related Debt
Service Reduction and any Deficient Valuation that affects the amount of the
monthly payment due on such Mortgage Loan.
Scheduled Principal Distribution Amount: For any Distribution Date, an
amount equal to the Senior Percentage of the Non-PO Percentage of all amounts
described in subclauses (a) through (d) of clause (i) of the definition of
Non-PO Formula Principal Amount for such Distribution Date; provided, however,
that if a Bankruptcy Loss that is an Excess Loss is sustained with respect to a
Mortgage Loan that is not a Liquidated Mortgage Loan, the Scheduled Principal
Distribution Amount will be reduced on the related Distribution Date by the
Non-PO Percentage of the principal portion of such Bankruptcy Loss.
Securities Act: The Securities Act of 1933, as amended.
Security Agreement: For any Cooperative Loan, the agreement between the
owner of the related Co-op Shares and the originator of the related Mortgage
Note that defines the security interest in the Co-op Shares and the related
Proprietary Lease.
Seller: IndyMac Bank, F.S.B., a federal savings bank, and its
successors and assigns, in its capacity as seller of the Mortgage Loans to the
Depositor.
Senior Certificate Group: As specified in the Preliminary Statement.
Senior Certificates: As specified in the Preliminary Statement.
Senior Credit Support Depletion Date: The date on which the Class
Certificate Balance of each Class of Subordinated Certificates has been reduced
to zero.
28
Senior Liquidation Amount: For any Distribution Date and for each
Mortgage Loan that became a Liquidated Mortgage Loan during the calendar month
preceding the month of the Distribution Date, the lesser of (a) the Senior
Percentage of the applicable Non-PO Percentage of the Stated Principal Balance
of the Mortgage Loan and (b) either (x) if an Excess Loss was not sustained on
the Liquidated Mortgage Loan during the preceding calendar month, the Senior
Prepayment Percentage of the Non-PO Percentage of the amount of the Liquidation
Proceeds allocable to principal received on the Mortgage Loan or (y) if an
Excess Loss was sustained on the Liquidated Mortgage Loan during the preceding
calendar month, the Senior Percentage of the applicable Non-PO Percentage of the
amount of the Liquidation Proceeds allocable to principal received on the
Mortgage Loan.
Senior Percentage: As to any Distribution Date, the percentage
equivalent of a fraction the numerator of which is the aggregate Class
Certificate Balance of the Senior Certificates (other than the Class PO
Certificates and the Notional Amount Certificates) immediately before the
Distribution Date and the denominator of which is the aggregate Class
Certificate Balance of the Certificates (other than the Class PO Certificates
and the Notional Amount Certificates) immediately before the Distribution Date.
Senior Prepayment Percentage: As to any Distribution Date during the
five years beginning on the first Distribution Date, 100%. The Senior Prepayment
Percentage for any Distribution Date occurring on or after the fifth anniversary
of the first Distribution Date will, except as provided in this Agreement, be as
follows: for any Distribution Date in the first year thereafter, the Senior
Percentage plus 70% of the Subordinated Percentage for such Distribution Date;
for any Distribution Date in the second year thereafter, the Senior Percentage
plus 60% of the Subordinated Percentage for such Distribution Date; for any
Distribution Date in the third year thereafter, the Senior Percentage plus 40%
of the Subordinated Percentage for such Distribution Date; for any Distribution
Date in the fourth year thereafter, the Senior Percentage plus 20% of the
Subordinated Percentage for such Distribution Date; and for any Distribution
Date thereafter, the Senior Percentage for such Distribution Date (unless on any
Distribution Date the Senior Percentage exceeds the initial Senior Percentage,
in which case the Senior Prepayment Percentage for such Distribution Date will
once again equal 100%). Notwithstanding the foregoing, no decrease in the Senior
Prepayment Percentage will occur unless both Senior Step Down Conditions are
satisfied.
Senior Principal Distribution Amount: As to any Distribution Date, the
sum of (i) the Senior Percentage of the Non-PO Percentage of all amounts
described in subclauses (a) through (d) of clause (i) of the definition of
Non-PO Formula Principal Amount for such Distribution Date, (ii) the Senior
Liquidation Amount for that Distribution Date, and (iii) the Senior Prepayment
Percentage of the applicable Non-PO Percentage of the amounts described in
subclause (f) of clause (i) of the definition of Non-PO Formula Principal Amount
for such Distribution Date, and (iv) the Senior Prepayment Percentage of any
Subsequent Recoveries described in clause (ii) of the definition of Non-PO
Formula Principal Amount for such Distribution Date; provided, however, that if
a Bankruptcy Loss that is an Excess Loss is sustained with respect to a Mortgage
Loan that is not a Liquidated Mortgage Loan, the Senior Principal Distribution
Amount will be reduced on the related Distribution Date by the Senior Percentage
of the applicable Non-PO Percentage of the principal portion of such Bankruptcy
Loss.
Senior Step Down Conditions: As to any Distribution Date: (i) the
aggregate Stated Principal Balance of all Mortgage Loans 60 days or more
Delinquent (averaged over the preceding six month period) (including any
Mortgage Loans subject to foreclosure proceedings, REO Property (regardless of
whether that Mortgage Loan is 60 days or more Delinquent) and Mortgage Loans the
Mortgagors of which are in bankruptcy), as a percentage of the aggregate Class
Certificate Balance of the Subordinated Certificates, does not equal or exceed
50%, and (ii) cumulative Realized Losses do not exceed: (a) commencing with the
Distribution Date on the fifth anniversary of the first Distribution Date, 30%
of the Original Subordinated Principal Balance, (b) commencing with the
Distribution Date on the sixth anniversary of the first Distribution Date, 35%
of the Original Subordinated Principal Balance,
29
(c) commencing with the Distribution Date on the seventh anniversary of the
first Distribution Date, 40% of the Original Subordinated Principal Balance,
(d) commencing with the Distribution Date on the eighth anniversary of the
first Distribution Date, 45% of the Original Subordinated Principal Balance,
and (e) commencing with the Distribution Date on the ninth anniversary of the
first Distribution Date, 50% of the Original Subordinated Principal Balance
Senior Termination Date: Not applicable.
Servicer: IndyMac Bank, F.S.B., a federal savings bank, and its
successors and assigns, in its capacity as servicer under this Agreement.
Servicer Advance Date: As to any Distribution Date, 12:30 P.M.
Pacific time on the Business Day preceding that Distribution Date.
Servicing Advances: All customary, reasonable, and necessary "out of
pocket" costs and expenses incurred in the performance by the Servicer of its
servicing obligations, including the cost of
(a) the preservation, restoration, and protection of a
Mortgaged Property,
(b) expenses reimbursable to the Servicer pursuant to Section
3.12 and any enforcement or judicial proceedings, including
foreclosures,
(c) the maintenance and liquidation of any REO Property,
(d) compliance with the obligations under Section 3.10; and
(e) reasonable compensation to the Servicer or its affiliates
for acting as broker in connection with the sale of foreclosed
Mortgaged Properties and for performing certain default management and
other similar services (including appraisal services) in connection
with the servicing of defaulted Mortgage Loans. For purposes of this
clause (e), only costs and expenses incurred in connection with the
performance of activities generally considered to be outside the scope
of customary servicing duties shall be treated as Servicing Advances.
Servicing Criteria: The "servicing criteria" set forth in Item
1122(d) of Regulation AB.
Servicing Fee: As to each Mortgage Loan and any Distribution Date, one
month's interest at the applicable Servicing Fee Rate on the Stated Principal
Balance of the Mortgage Loan, or, whenever a payment of interest accompanies a
Principal Prepayment in Full made by the Mortgagor, interest at the Servicing
Fee Rate on the Stated Principal Balance of the Mortgage Loan for the period
covered by the payment of interest, subject to reduction as provided in Section
3.15.
Servicing Fee Rate: For each Mortgage Loan, the per annum rate
specified on the Mortgage Loan Schedule.
Servicing Officer: Any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and facsimile signature appear on a list of servicing officers furnished to
the Trustee by the Servicer on the Closing Date pursuant to this Agreement, as
the list may from time to time be amended.
Servicing Standard: That degree of skill and care exercised by the
Servicer with respect to mortgage loans comparable to the Mortgage Loans
serviced by the Servicer for itself or others.
30
Shift Percentage: For any Distribution Date occurring during the five
years beginning on the first Distribution Date, 0%. For any Distribution Date
occurring on or after the fifth anniversary of the first Distribution Date,
100%.
Special Hazard Coverage Termination Date: The point in time at which
the Special Hazard Loss Coverage Amount is reduced to zero.
Special Hazard Loss: Any Realized Loss suffered by a Mortgaged Property
on account of direct physical loss, but not including (i) any loss of a type
covered by a hazard insurance policy or a flood insurance policy required to be
maintained with respect to such Mortgaged Property pursuant to Section 3.10 to
the extent of the amount of such loss covered thereby, or (ii) any loss caused
by or resulting from:
(a) normal wear and tear;
(b) fraud, conversion or other dishonest act on the part of
the Trustee, the Servicer or any of their agents or employees (without
regard to any portion of the loss not covered by any errors and
omissions policy);
(c) errors in design, faulty workmanship or faulty materials,
unless the collapse of the property or a part thereof ensues and then
only for the ensuing loss;
(d) nuclear or chemical reaction or nuclear radiation or
radioactive or chemical contamination, all whether controlled or
uncontrolled, and whether such loss be direct or indirect, proximate or
remote or be in whole or in part caused by, contributed to or
aggravated by a peril covered by the definition of the term "Special
Hazard Loss";
(e) hostile or warlike action in time of peace and war,
including action in hindering, combating or defending against an
actual, impending or expected attack:
1. by any government or sovereign power, de jure or
de facto, or by any authority maintaining or using military,
naval or air forces; or
2. by military, naval or air forces; or
3. by an agent of any such government, power,
authority or forces;
(f) any weapon of war employing nuclear fission, fusion or
other radioactive force, whether in time of peace or war; or
(g) insurrection, rebellion, revolution, civil war, usurped
power or action taken by governmental authority in hindering, combating
or defending against such an occurrence, seizure or destruction under
quarantine or customs regulations, confiscation by order of any
government or public authority, or risks of contraband or illegal
transportation or trade.
Special Hazard Loss Coverage Amount: With respect to the first
Distribution Date, $5,923,898. With respect to any Distribution Date after the
first Distribution Date, the lesser of (a) the greatest of (i) 1% of the
aggregate of the principal balances of the Mortgage Loans, (ii) twice the
principal balance of the largest Mortgage Loan and (iii) the aggregate of the
principal balances of all Mortgage Loans secured by Mortgaged Properties located
in the single California postal zip code area having the highest aggregate
principal balance of any such zip code area and (b) the Special Hazard Loss
Coverage Amount as of the Closing Date less the amount, if any, of Special
Hazard Losses allocated to the Certificates since the
31
Closing Date. All principal balances for the purpose of this definition will
be calculated as of the first day of the calendar month preceding the month of
such Distribution Date after giving effect to Scheduled Payments on the
Mortgage Loans then due, whether or not paid.
Special Hazard Mortgage Loan: A Liquidated Mortgage Loan as to which a
Special Hazard Loss has occurred.
Startup Day: The Closing Date.
Stated Principal Balance: As to any Mortgage Loan and Due Date, the
unpaid principal balance of such Mortgage Loan as of such Due Date, as specified
in the amortization schedule at the time relating thereto (before any adjustment
to such amortization schedule by reason of any moratorium or similar waiver or
grace period) after giving effect to the sum of: (i) the payment of principal
due on such Due Date and irrespective of any delinquency in payment by the
related Mortgagor and (ii) any Liquidation Proceeds allocable to principal
received in the prior calendar month and Principal Prepayments received through
the last day of the Prepayment Period in which the Due Date occurs, in each case
with respect to such Mortgage Loan.
Subcontractor: Any vendor, subcontractor or other Person that is not
responsible for the overall servicing (as "servicing" is commonly understood by
participants in the mortgage-backed securities market) of Mortgage Loans but
performs one or more discrete functions identified in Item 1122(d) of Regulation
AB with respect to the Mortgage Loans under the direction or authority of the
Servicer or the Trustee, as the case may be.
Subordinated Certificates: As specified in the Preliminary Statement.
Subordinated Percentage: As to any Distribution Date, 100% minus the
Senior Percentage for such Distribution Date.
Subordinated Prepayment Percentage: As to any Distribution Date, 100%
minus the Senior Prepayment Percentage for such Distribution Date.
Subordinated Principal Distribution Amount: As to any Distribution
Date, the sum of the following: (i) the Subordinated Percentage of the
applicable Non-PO Percentage of all amounts described in subclauses (a) through
(d) of clause (i) of the definition of Non-PO Formula Principal Amount with
respect to such Distribution Date, (ii) for each Mortgage Loan that became a
Liquidated Mortgage Loan during the calendar month preceding the month of the
Distribution Date, the applicable Non-PO Percentage of the portion of the
Liquidation Proceeds allocable to principal received on the Mortgage Loan, after
application of the amounts pursuant to clause (ii) of the definition of Senior
Principal Distribution Amount, up to the Subordinated Percentage of the
applicable Non-PO Percentage of the Stated Principal Balance of the Mortgage
Loan, and (iii) the Subordinated Prepayment Percentage of the applicable Non-PO
Percentage of the amounts described in subclause (f) of clause (i) and in clause
(ii) of the definition of Non-PO Formula Principal Amount with respect to such
Distribution Date, reduced by the amount of any payments in respect of Class PO
Deferred Amounts for such Distribution Date.
Subsequent Recoveries: As to any Distribution Date, with respect to a
Liquidated Mortgage Loan that resulted in a Realized Loss in a prior calendar
month, unexpected amounts received by the Servicer (net of any related expenses
permitted to be reimbursed pursuant to Section 3.09) specifically related to
such Liquidated Mortgage Loan.
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Substitute Mortgage Loan: A Mortgage Loan substituted by the Seller for
a Deleted Mortgage Loan that must, on the date of substitution, as confirmed in
a Request for Release, substantially in the form of Exhibit M,
(i) have a Stated Principal Balance, after deduction of the principal
portion of the Scheduled Payment due in the month of substitution, not in excess
of, and not more than 10% less than, the Stated Principal Balance of the Deleted
Mortgage Loan (unless the amount of any shortfall is deposited by the Seller in
the Certificate Account and held for distribution to the Certificateholders on
the related Distribution Date);
(ii) have a Mortgage Rate no lower than and not more than 1% per
annum higher than the Deleted Mortgage Loan;
(iii) have a Loan-to-Value Ratio no higher than that of the Deleted
Mortgage Loan;
(iv) have a remaining term to maturity not more than one year greater
than (and not more than one year less than) that of the Deleted Mortgage Loan,
provided that Substitute Mortgage Loan with a remaining term to maturity greater
than that of the Deleted Mortgage Loan may not exceed 5% of the Cut-off Date
Pool Principal Balance;
(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.
Supplemental Interest Reserve Fund: The separate fund created and
initially maintained by the Supplemental Interest Trustee pursuant to Section
3.06 in the name of the Supplemental Interest Trustee for the benefit of the
Holders of the Class A-3 Certificates and designated "Deutsche Bank National
Trust Company in trust for registered holders of Residential Asset
Securitization Trust 2007-A1, Mortgage Pass-Through Certificates, Series 2007-A,
Class A-3." Funds in the Supplemental Interest Reserve Fund shall be held in
trust for the Holders of the Class A-3 Certificates for the uses and purposes
set forth in this Agreement. The Supplemental Interest Reserve Fund will not be
an asset of any REMIC.
Supplemental Interest Trust: The separate trust created under this
Agreement pursuant to Section 3.06.
Supplemental Interest Trustee: Deutsche Bank National Trust Company,
not in its individual capacity, but solely in its capacity as trustee of the
Supplemental Interest Trust for the benefit of the Holders of the Class A-3
Certificates under this Agreement, and any successor thereto, and any
corporation or national banking association resulting from or surviving any
consolidation or merger to which it or its successors may be a party and any
successor trustee as may from time to time be serving as successor trustee
hereunder.
Suspension Notification: Notification to the Commission of the
suspension of the Trust Fund's obligation to file reports pursuant to Section
15(d) of the Exchange Act.
Targeted Balance: Not applicable.
Targeted Principal Classes: As specified in the Preliminary Statement.
33
Termination Date: The Distribution Date in December 2010.
Transaction Documents: This Agreement, the Corridor Contract and any
other document or agreement entered into in connection with the Trust Fund, the
Certificates or the Mortgage Loans.
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
Transfer Payment Made: Not applicable.
Transfer Payment Received: Not applicable.
Trust Fund: The corpus of the trust created under this Agreement
consisting of
(i) the Mortgage Loans and all interest and principal received on them
after the Cut-off Date, other than amounts due on the Mortgage Loans by the
Cut-off Date;
(ii) the Certificate Account, the Distribution Account and all amounts
deposited therein pursuant to this Agreement (including amounts received from
the Seller on the Closing Date that will be deposited by the Trustee in the
Certificate Account pursuant to Section 2.01);
(iii) property that secured a Mortgage Loan and has been acquired by
foreclosure, deed-in-lieu of foreclosure, or otherwise;
(iv) the right to collect any amounts under any mortgage insurance
policies covering any Mortgage Loan and any collections received under any
mortgage insurance policies covering any Mortgage Loan;
(v) all rights to receive amounts under, and to enforce remedies in,
the Corridor Contracts and Cap Contract; and
(vi) all proceeds of the conversion, voluntary or involuntary, of any
of the foregoing.
Trustee: Deutsche Bank National Trust Company and its successors and,
if a successor trustee is appointed under this Agreement, the successor.
Trustee Fee: The fee payable to the Trustee on each Distribution Date
for its services as Trustee hereunder, in an amount equal to one-twelfth of the
Trustee Fee Rate multiplied by the aggregate Stated Principal Balance of the
Mortgage Loans immediately prior to such Distribution Date.
Trustee Fee Rate: 0.0085% per annum.
The terms "United States," "State," and "International Organization"
have the meanings in section 7701 of the Code or successor provisions. A
corporation will not be treated as an instrumentality of the United States or of
any State or political subdivision thereof for these purposes if all of its
activities are subject to tax and, with the exception of the Federal Home Loan
Mortgage Corporation, a majority of its board of directors is not selected by
such government unit.
UCC: The Uniform Commercial Code for the State of New York.
Undercollateralized Group: Not applicable.
34
Underwriter's Exemption: Prohibited Transaction Exemption 2002-41, 67
Fed. Reg. 54487 (2002) (or any successor thereto), or any substantially
similar administrative exemption granted by the U.S. Department of Labor.
United States Person or U.S. Person:
(i) A citizen or resident of the United States;
(ii) a corporation (or entity treated as a corporation for tax
purposes) created or organized in the United States or under the laws of the
United States or of any state thereof, including, for this purpose, the District
of Columbia;
(iii) a partnership (or entity treated as a partnership for tax
purposes) organized in the United States or under the laws of the United States
or of any state thereof, including, for this purpose, the District of Columbia
(unless provided otherwise by future Treasury regulations);
(iv) an estate whose income is includible in gross income for United
States income tax purposes regardless of its source; or
(v) a trust, if a court within the United States is able to exercise
primary supervision over the administration of the trust and one or more U.S.
Persons have authority to control all substantial decisions of the trust.
Notwithstanding the last clause of the preceding sentence, to the extent
provided in Treasury regulations, certain trusts in existence on August 20,
1996, and treated as U.S. Persons before that date, may elect to continue to be
U.S. Persons.
Unscheduled Principal Distribution Amount: For any Distribution Date,
the sum of (i) the sum of (A) the Senior Liquidation Amount and (B) the amount
set forth under clause (ii) of the definition of Subordinated Principal
Distribution Amount, (ii) the Non-PO Percentage of the sum of the amounts set
forth under subclause (f) of clause (i) of the definition of Non-PO Formula
Principal Amount for such Distribution Date and (iii) any Subsequent Recoveries
described in clause (ii) of the definition of Non-PO Formula Principal Amount
for that Distribution Date.
U.S.A. Patriot Act: The Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.
Voting Rights: The portion of the voting rights of all of the
Certificates that is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to each Class of
Notional Amount Certificates (the Voting Rights to be allocated among the
holders of Certificates of each Class in accordance with their respective
Percentage Interests), (b) 1% of all Voting Rights shall be allocated to the
Holder of the Class A-R Certificates and (c) the remaining Voting Rights shall
be allocated among Holders of the remaining Classes of Offered Certificates in
proportion to the Certificate Balances of the respective Certificates on the
date.
Withdrawal Date: The 18th day of each month, or if such day is not a
Business Day, the next preceding Business Day.
Yield Supplement Amount: For the Class A-3 Certificates and any
Distribution Date, the product of (i) the excess of (A) the lesser of (x) LIBOR
(as determined by the Cap Counterparty) and (y) 8.90% over (B) 5.15%, (ii) the
Class Certificate Balance of the Class A-3 Certificates immediately prior to
that Distribution Date, and (iii) a fraction, the numerator of which is 30, and
the denominator of is 360.
35
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 Agreement without
definition that are defined in the Uniform Commercial Code are used in this
Agreement as defined in the Uniform Commercial Code.
36
(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.
37
ARTICLE TWO
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans.
(a) The Seller, concurrently with the execution and delivery of this
Agreement, hereby transfers to the Depositor, without recourse, all the
interest of the Seller in each Mortgage Loan, including all interest and
principal received or receivable by the Seller on each Mortgage Loan after the
Cut-off Date and all interest and principal payments on each Mortgage Loan
received before the Cut-off Date for installments of interest and principal
due after the Cut-off Date but not including payments of principal and
interest due by the Cut-off Date. By the Closing Date, the Seller shall
deliver to the Depositor or, at the Depositor's direction, to the Trustee or
other designee of the Depositor, the Mortgage File for each Mortgage Loan
listed in the Mortgage Loan Schedule (except that, in the case of Mortgage
Loans that are Delay Delivery Mortgage Loans, such delivery may take place
within five Business Days of the Closing Date) as of the Closing Date. The
delivery of the Mortgage Files shall be made against payment by the Depositor
of the purchase price, previously agreed to by the Seller and Depositor, for
the Mortgage Loans. With respect to any Mortgage Loan that does not have a
first payment date on or before the Due Date in the month of the first
Distribution Date, the Seller shall deposit into the Distribution Account on
the first Distribution Account Deposit Date an amount equal to one month's
interest at the related Adjusted Mortgage Rate on the Cut-off Date Principal
Balance of such Mortgage Loan.
(b) The Depositor, concurrently with the execution and delivery of
this Agreement, hereby transfers to the Trustee for the benefit of the
Certificateholders, without recourse, all the interest of the Depositor in the
Trust Fund, together with the Depositor's right to require the Seller to cure
any breach of a representation or warranty made in this Agreement by the
Seller or to repurchase or substitute for any affected Mortgage Loan in
accordance with this Agreement. The Depositor hereby directs the Trustee to
execute the Corridor Contract.
(c) In connection with the transfer and assignment of each Mortgage
Loan, the Depositor has delivered (or, in the case of the Delay Delivery
Mortgage Loans, will deliver to the Trustee within the time periods specified
in the definition of Delay Delivery Mortgage Loans), for the benefit of the
Certificateholders the following documents or instruments with respect to each
Mortgage Loan so assigned:
(i) The original Mortgage Note, endorsed by manual or facsimile
signature in blank in the following form: "Pay to the order of _______________
______________without recourse," with all intervening endorsements showing a
complete chain of endorsement from the originator to the Person endorsing the
Mortgage Note (each endorsement being sufficient to transfer all interest of
the party so endorsing, as noteholder or assignee thereof, in that Mortgage
Note) or a lost note affidavit for any Lost Mortgage Note from the Seller
stating that the original Mortgage Note was lost or destroyed, together with a
copy of the Mortgage Note;
(ii) Except as provided below and for each Mortgage Loan that is not
a MERS Mortgage Loan, the original recorded Mortgage or a copy of such
Mortgage certified by the Seller as being a true and complete copy of the
Mortgage (or, in the case of a Mortgage for which the related Mortgaged
Property is located in the Commonwealth of Puerto Rico, a true copy of the
Mortgage certified as such by the applicable notary) and in the case of each
MERS Mortgage Loan, the original Mortgage, noting the presence of the MIN of
the Mortgage Loan and either language indicating
38
that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan or if
the Mortgage Loan was not a MOM Loan at origination, the original Mortgage and
the assignment thereof to MERS, with evidence of recording indicated thereon,
or a copy of the Mortgage certified by the public recording office in which
such Mortgage has been recorded;
(iii) In the case of a Mortgage Loan that is not a MERS Mortgage
Loan, a duly executed assignment of the Mortgage (which may be included in a
blanket assignment or assignments), together with, except as provided below,
all interim recorded assignments of the mortgage (each assignment, when duly
and validly completed, to be in recordable form and sufficient to effect the
assignment of and transfer to its assignee of the Mortgage to which the
assignment relates). If the related Mortgage has not been returned from the
applicable public recording office, the assignment of the Mortgage may exclude
the information to be provided by the recording office. The assignment of
Mortgage need not be delivered in the case of a Mortgage for which the related
Mortgage Property is located in the Commonwealth of Puerto Rico;
(iv) The original or copies of each assumption, modification, written
assurance, or substitution agreement;
(v) Except as provided below, the original or duplicate original
lender's title policy and all its riders;
(vi) The originals of the following documents for each Cooperative
Loan:
(A) the Co-op Shares, together with a stock
power in blank;
(B) the executed Security Agreement;
(C) the executed Proprietary Lease;
(D) the executed Recognition Agreement;
(E) the executed UCC-1 financing statement that
has been filed in all places required to
perfect the Seller's interest in the Co-op
Shares and the Proprietary Lease with
evidence of recording on it; and
(F) executed UCC-3 financing statements or other
appropriate UCC financing statements
required by state law, evidencing a complete
and unbroken line from the mortgagee to the
Trustee with evidence of recording thereon
(or in a form suitable for recordation).
In addition, in connection with the assignment of any MERS Mortgage
Loan, the Seller agrees that it will cause, at the Seller's expense, the MERS(R)
System to indicate that the Mortgage Loans sold by the Seller to the Depositor
have been assigned by the Seller to the Trustee in accordance with this
Agreement for the benefit of the Certificateholders by including (or deleting,
in the case of Mortgage Loans that are repurchased in accordance with this
Agreement) in such computer files the information required by the MERS(R) System
to identify the series of the Certificates issued in connection with such
Mortgage Loans. The Seller further agrees that it will not, and will not permit
the Servicer to, and the Servicer agrees that it will not, alter the information
referenced in this paragraph with respect to any Mortgage Loan sold by the
Seller to the Depositor during the term of this Agreement unless and until such
Mortgage Loan is repurchased in accordance with the terms of this Agreement.
39
In the event that in connection with any Mortgage Loan that is not a
MERS Mortgage Loan the Depositor cannot deliver (a) the original recorded
Mortgage, (b) all interim recorded assignments or (c) the lender's title policy
(together with all riders thereto) satisfying the requirements of clause (ii),
(iii) or (v) above, respectively, concurrently with the execution and delivery
of this Agreement because such document or documents have not been returned from
the applicable public recording office in the case of clause (ii) or (iii)
above, or because the title policy has not been delivered to either the Servicer
or the Depositor by the applicable title insurer in the case of clause (v)
above, then the Depositor shall promptly deliver to the Trustee, in the case of
clause (ii) or (iii) above, the original Mortgage or the interim assignment, as
the case may be, with evidence of recording indicated on when it is received
from the public recording office, or a copy of it, certified, if appropriate, by
the relevant recording office and in the case of clause (v) above, the original
or a copy of a written commitment or interim binder or preliminary report of
title issued by the title insurance or escrow company, with the original or
duplicate copy thereof to be delivered to the Trustee upon receipt thereof. The
delivery of the original Mortgage Loan and each interim assignment or a copy of
them, certified, if appropriate, by the relevant recording office, shall not be
made later than one year following the Closing Date, or, in the case of clause
(v) above, later than 120 days following the Closing Date. If the Depositor is
unable to deliver each Mortgage by that date and each interim assignment because
any documents have not been returned by the appropriate recording office, or, in
the case of each interim assignment, because the related Mortgage has not been
returned by the appropriate recording office, the Depositor shall deliver the
documents to the Trustee as promptly as possible upon their receipt and, in any
event, within 720 days following the Closing Date.
The Depositor shall forward to the Trustee (a) from time to time
additional original documents evidencing an assumption or modification of a
Mortgage Loan and (b) any other documents required to be delivered by the
Depositor or the Servicer to the Trustee. If the original Mortgage is not
delivered and in connection with the payment in full of the related Mortgage
Loan the public recording office requires the presentation of a "lost
instruments affidavit and indemnity" or any equivalent document, because only a
copy of the Mortgage can be delivered with the instrument of satisfaction or
reconveyance, the Servicer shall execute and deliver the required document to
the public recording office. If a public recording office retains the original
recorded Mortgage or if a Mortgage is lost after recordation in a public
recording office, the Seller shall deliver to the Trustee a copy of the Mortgage
certified by the public recording office to be a true and complete copy of the
original recorded Mortgage.
As promptly as practicable after any transfer of a Mortgage Loan under
this Agreement, and in any event within thirty days after the transfer, the
Trustee shall (i) affix the Trustee's name to each assignment of Mortgage, as
its assignee, and (ii) cause to be delivered for recording in the appropriate
public office for real property records the assignments of the Mortgages to the
Trustee, except that, if the Trustee has not received the information required
to deliver any assignment of a Mortgage for recording, the Trustee shall deliver
it as soon as practicable after receipt of the needed information and in any
event within thirty days.
The Trustee need not record any assignment that relates to a Mortgage
Loan (a) the Mortgaged Property and Mortgage File relating to which are located
in California or (b) in any other jurisdiction (including Puerto Rico) under the
laws of which, as evidenced by an Opinion of Counsel delivered by the Seller (at
the Seller's expense) to the Trustee, recording the assignment is not necessary
to protect the Trustee's and the Certificateholders' interest in the related
Mortgage Loan. The Seller shall deliver such Opinion of Counsel within 90 days
of the Closing Date.
If any Mortgage Loans have been prepaid in full as of the Closing Date,
the Depositor, in lieu of delivering the above documents to the Trustee, will
deposit in the Certificate Account the portion of the prepayment that is
required to be deposited in the Certificate Account pursuant to Section 3.06.
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Notwithstanding anything to the contrary in this Agreement, within five
Business Days after the Closing Date, the Seller shall either
(x) deliver to the Trustee the Mortgage File as required
pursuant to this Section 2.01 for each Delay Delivery Mortgage
Loan or
(y) (A) repurchase the Delay Delivery Mortgage Loan or (B)
substitute the Substitute Mortgage Loan for a Delay Delivery
Mortgage Loan, which repurchase or substitution shall be
accomplished in the manner and subject to the conditions in
Section 2.03 (treating each such Delay Delivery Mortgage Loan
as a Deleted Mortgage Loan for purposes of such Section 2.03);
provided, however, that if the Seller fails to deliver a Mortgage File for any
Delay Delivery Mortgage Loan within the period specified herein, the Seller
shall use its best reasonable efforts to effect a substitution, rather than a
repurchase of, such Deleted Mortgage Loan and provided further that the cure
period provided for in Section 2.02 or in Section 2.03 shall not apply to the
initial delivery of the Mortgage File for such Delay Delivery Mortgage Loan, but
rather the Seller shall have five (5) Business Days to cure such failure to
deliver. At the end of such period, the Trustee shall send a Delay Delivery
Certification for the Delay Delivery Mortgage Loans delivered during such period
in accordance with the provisions of Section 2.02.
(d) The Seller agrees to treat the transfer of the Mortgage
Loans to the Depositor as a sale for all tax, accounting, and
regulatory purposes.
(e) The Trust Fund does not intend to acquire or hold any
Mortgage Loan that would violate the representations made by the
Seller set forth in clause (28) of Schedule III.
Section 2.02 Acceptance by the Trustee of the Mortgage Loans.
The Trustee acknowledges receipt of the documents identified in the
Initial Certification in the form of Exhibit G-1, and declares that it holds and
will hold such documents and the other documents delivered to it constituting
the Mortgage Files for the Mortgage Loans, and that it holds or will hold such
other assets as are included in the Trust Fund, in trust for the exclusive use
and benefit of all present and future Certificateholders.
The Trustee acknowledges that it will maintain possession of the
related Mortgage Notes in the State of California, unless otherwise permitted by
the Rating Agencies. The Trustee agrees to execute and deliver on the Closing
Date to the Depositor, the Servicer and the Seller an Initial Certification in
the form of Exhibit G-1. Based on its review and examination, and only as to the
documents identified in such Initial Certification, the Trustee acknowledges
that such documents appear regular on their face and relate to such Mortgage
Loans. The Trustee shall be under no duty or obligation to inspect, review or
examine said documents, instruments, certificates or other papers to determine
that the same are genuine, enforceable or appropriate for the represented
purpose or that they have actually been recorded in the real estate records or
that they are other than what they purport to be on their face.
By the thirtieth day after the Closing Date (or if that day is not a
Business Day, the succeeding Business Day), the Trustee shall deliver to the
Depositor, the Servicer, and the Seller a Delay Delivery Certification with
respect to the Mortgage Loans substantially in the form of Exhibit G-2, with any
applicable exceptions noted thereon.
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By the ninetieth day after the Closing Date (or if that day is not a
Business Day, the succeeding Business Day), the Trustee shall deliver to the
Depositor, the Servicer and the Seller a Final Certification with respect to the
Mortgage Loans in the form of Exhibit H, with any applicable exceptions noted
thereon.
If, in the course of its review, the Trustee finds any document
constituting a part of a Mortgage File that does not meet the requirements of
Section 2.01, the Trustee shall list such as an exception in the Final
Certification. The Trustee shall not make any determination as to whether (i)
any endorsement is sufficient to transfer all interest of the party so
endorsing, as noteholder or assignee thereof, in that Mortgage Note or (ii) any
assignment is in recordable form or is sufficient to effect the assignment of
and transfer to the assignee thereof under the mortgage to which the assignment
relates. The Seller shall promptly correct any defect that materially and
adversely affects the interests of the Certificateholders within 90 days from
the date it was so notified of the defect and, if the Seller does not correct
the defect within that period, the Seller shall either (a) substitute for the
related Mortgage Loan a Substitute Mortgage Loan, which substitution shall be
accomplished in the pursuant Section 2.03, or (b) purchase the Mortgage Loan at
its Purchase Price from the Trustee within 90 days from the date the Seller was
notified of the defect in writing.
If a substitution or purchase of a Mortgage Loan pursuant to this
provision is required because of a delay in delivery of any documents by the
appropriate recording office, or there is a dispute between either the Servicer
or the Seller and the Trustee over the location or status of the recorded
document, then the substitution or purchase shall occur within 720 days from the
Closing Date. In no other case may a substitution or purchase occur more than
540 days from the Closing Date. No substitution is permitted to be made in any
calendar month after the Determination Date for the month.
The Purchase Price for any Mortgage Loan shall be deposited by the
Seller in the Certificate Account by the Distribution Account Deposit Date for
the Distribution Date in the month following the month of repurchase and, upon
receipt of the deposit and certification with respect thereto in the form of
Exhibit N, the Trustee shall release the related Mortgage File to the Seller and
shall execute and deliver at the Seller's request any instruments of transfer or
assignment prepared by the Seller, in each case without recourse, necessary to
vest in the Seller, or a designee, the Trustee's interest in any Mortgage Loan
released pursuant hereto.
If pursuant to the foregoing provisions the Seller repurchases a
Mortgage Loan that is a MERS Mortgage Loan, the Servicer shall either (i) cause
MERS to execute and deliver an assignment of the Mortgage in recordable form to
transfer the Mortgage from MERS to the Seller and shall cause such Mortgage to
be removed from registration on the MERS(R) System in accordance with MERS'
rules and regulations or (ii) cause MERS to designate on the MERS(R) System the
Seller as the beneficial holder of such Mortgage Loan.
The Trustee shall retain possession and custody of each Mortgage File
in accordance with and subject to the terms and conditions set forth herein. The
Servicer shall promptly deliver to the Trustee, upon the execution or receipt
thereof, the originals of any other documents or instruments constituting the
Mortgage File that come into the possession of the Servicer from time to time.
The obligation of the Seller to substitute for or to purchase any
Mortgage Loan that does not meet the requirements of Section 2.01 shall
constitute the sole remedy respecting the defect available to the Trustee, the
Depositor, and any Certificateholder against the Seller.
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Section 2.03 Representations, Warranties, and Covenants of the Seller
and the Servicer.
(a) IndyMac, in its capacities as Seller and Servicer, makes the
representations and warranties in Schedule II, and by this reference
incorporated in this Agreement, to the Depositor and the Trustee, as of the
Closing Date.
(b) The Seller, in its capacity as Seller, makes the representations
and warranties in Schedule III, and by this reference incorporated in this
Agreement, to the Depositor and the Trustee, as of the Closing Date, or if so
specified in Schedule III, as of the Cut-off Date.
(c) Upon discovery by any of the parties hereto of a breach of a
representation or warranty made pursuant to Section 2.03(b) that materially and
adversely affects the interests of the Certificateholders in any Mortgage Loan,
the party discovering such breach shall give prompt notice thereof to the other
parties. Any breach of representations and warranties under clauses (28) and
(33) of Schedule III shall be deemed to affect materially and adversely the
interests of the Certificateholders in the affected Mortgage Loans. The Seller
covenants that within 90 days of the earlier of its discovery or its receipt of
written notice from any party of a breach of any representation or warranty made
pursuant to Section 2.03(b) which materially and adversely affects the interests
of the Certificateholders in any Mortgage Loan, it shall cure such breach in all
material respects, and if such breach is not so cured, shall, (i) if the 90-day
period expires before the second anniversary of the Closing Date, remove the
Mortgage Loan (a "Deleted Mortgage Loan") from the Trust Fund and substitute in
its place a Substitute Mortgage Loan, in accordance with this Section 2.03; or
(ii) repurchase the affected Mortgage Loan or Mortgage Loans from the Trustee at
the Purchase Price in the manner set forth below. Any substitution pursuant to
(i) above shall not be effected before the delivery to the Trustee of the
Opinion of Counsel required by Section 2.05, and a Request for Release
substantially in the form of Exhibit N, and the Mortgage File for any Substitute
Mortgage Loan. The Seller shall promptly reimburse the Servicer and the Trustee
for any expenses reasonably incurred by the Servicer or the Trustee in respect
of enforcing the remedies for the breach.
With respect to any Substitute Mortgage Loan or Loans, the Seller shall
deliver to the Trustee for the benefit of the Certificateholders the Mortgage
Note, the Mortgage, the related assignment of the Mortgage, and such other
documents and agreements as are required by Section 2.01, with the Mortgage Note
endorsed and the Mortgage assigned as required by Section 2.01. No substitution
is permitted to be made in any calendar month after the Determination Date for
such month. Scheduled Payments due with respect to Substitute Mortgage Loans in
the month of substitution shall not be part of the Trust Fund and will be
retained by the Seller on the next succeeding Distribution Date. For the month
of substitution, distributions to Certificateholders will include the monthly
payment due on any Deleted Mortgage Loan for such month and thereafter the
Seller shall be entitled to retain all amounts received in respect of such
Deleted Mortgage Loan.
The Servicer shall amend the Mortgage Loan Schedule for the benefit of
the Certificateholders to reflect the removal of the Deleted Mortgage Loan and
the substitution of the Substitute Mortgage Loans and the Servicer shall deliver
the amended Mortgage Loan Schedule to the Trustee. Upon the substitution, the
Substitute Mortgage Loans shall be subject to this Agreement in all respects,
and the Seller shall be deemed to have made with respect to the Substitute
Mortgage Loans, as of the date of substitution, the representations and
warranties made pursuant to Section 2.03(b) with respect to the Mortgage Loan.
Upon any substitution and the deposit to the Certificate Account of the amount
required to be deposited therein in connection with the substitution as
described in the following paragraph, the Trustee shall release the Mortgage
File held for the benefit of the Certificateholders relating to the Deleted
Mortgage Loan to the Seller and shall execute and deliver at the Seller's
direction such instruments of transfer or assignment prepared by the Seller, in
each case without recourse, as shall be
43
necessary to vest title in the Seller, or its designee, the Trustee's interest
in any Deleted Mortgage Loan substituted for pursuant to this Section 2.03.
For any month in which the Seller substitutes one or more Substitute
Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer will
determine the amount (if any) by which the aggregate principal balance of all
such Substitute Mortgage Loans as of the date of substitution is less than the
aggregate Stated Principal Balance of all such Deleted Mortgage Loans (after
application of the scheduled principal portion of the monthly payments due in
the month of substitution). The amount of such shortage (the "Substitution
Adjustment Amount") plus, if the Seller is not the Servicer, an amount equal to
the aggregate of any unreimbursed Advances and Servicer Advances with respect to
such Deleted Mortgage Loans shall be deposited into the Certificate Account by
the Seller by the Distribution Account Deposit Date for the Distribution Date in
the month succeeding the calendar month during which the related Mortgage Loan
became required to be purchased or replaced hereunder. If the Seller repurchases
a Mortgage Loan, the Purchase Price therefor shall be deposited in the
Certificate Account pursuant to Section 3.06 by the Distribution Account Deposit
Date for the Distribution Date in the month following the month during which the
Seller became obligated hereunder to repurchase or replace the Mortgage Loan and
upon such deposit of the Purchase Price and receipt of a Request for Release in
the form of Exhibit N, the Trustee shall release the related Mortgage File held
for the benefit of the Certificateholders to such Person, and the Trustee shall
execute and deliver at such Person's direction such instruments of transfer or
assignment prepared by such Person, in each case without recourse, as shall be
necessary to transfer title from the Trustee. The obligation under this
Agreement of any Person to cure, repurchase, or replace any Mortgage Loan as to
which a breach has occurred and is continuing shall constitute the sole remedy
against the Person respecting the breach available to Certificateholders, the
Depositor, or the Trustee on their behalf.
The representations and warranties made pursuant to this Section 2.03
shall survive delivery of the respective Mortgage Files to the Trustee for the
benefit of the Certificateholders and shall not be waived by the Depositor.
The Seller assigns to the Depositor and the Depositor assigns to the
Trustee all rights the Seller might have under contracts with third parties
relating to early payment defaults on the Mortgage Loans ("EPD Rights") and the
Servicer assumes any related duties as part of it servicing obligations.
Consistent with the Servicing Standard, the Servicer shall attempt to enforce
the EPD rights. If the Servicer's enforcement of the EPD Rights obligates the
Servicer to sell a Mortgage Loan to a third party, the Servicer shall repurchase
the Mortgage Loan at the Purchase Price and sell the Mortgage Loan to the third
party, provided however, in no case shall the Servicer be obligated to
repurchase a Mortgage Loan on account of EPD Rights unless and until the
Servicer shall have previously received repurchase payment from a third party.
The Servicer shall deposit into the Certificate Account all amounts received in
connection with the enforcement of EPD Rights, not exceeding the Purchase Price,
with respect to any Mortgage Loan. Any amounts received by the Servicer with
respect a Mortgage Loan in excess of the Purchase Price shall be retained by the
Servicer as additional servicing compensation. The Trustee, upon receipt of
certification from the Servicer of the deposit of the Purchase Price in
connection with a repurchase of a Mortgage Loan and a request for file release
from the Servicer, shall release or cause to be released to the purchaser of
such Mortgage Loan the related Mortgage File and shall execute and deliver such
instruments of transfer or assignment prepared by the purchaser of such Mortgage
Loan, in each case without recourse, as shall be necessary to vest in the
purchaser of such Mortgage Loan any Mortgage Loan released pursuant hereto and
the purchaser of such Mortgage Loan shall succeed to all the Trustee's right,
title and interest in and to such Mortgage Loan and all security and documents
related thereto. Such assignment shall be an assignment outright and not for
security. The purchaser of such Mortgage Loan shall thereupon own such Mortgage
Loan, and all security and documents, free of any further obligation to the
Trustee or the Certificateholders with respect thereto.
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Section 2.04 Representations and Warranties of the Depositor as to
the Mortgage Loans.
(a) The Depositor represents and warrants to the Trustee with respect
to each Mortgage Loan as of the date of this Agreement or such other date set
forth in this Agreement that as of the Closing Date, and following the transfer
of the Mortgage Loans to it by the Seller, the Depositor had good title to the
Mortgage Loans and the Mortgage Notes were subject to no offsets, defenses, or
counterclaims.
(b) 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.
Notwithstanding any contrary provision of this Agreement, no
substitution pursuant to Section 2.02 or 2.03 shall be made more than 90 days
after the Closing Date unless the Seller delivers to the Trustee an Opinion of
Counsel, which Opinion of Counsel shall not be at the expense of either the
Trustee or the Trust Fund, addressed to the Trustee, to the effect that such
substitution will not (i) result in the imposition of the tax on "prohibited
transactions" on the Trust Fund or contributions after the Startup Date, as
defined in sections 860F(a)(2) and 860G(d) of the Code, respectively or (ii)
cause any REMIC created under this Agreement to fail to qualify as a REMIC at
any time that any Certificates are outstanding.
Upon discovery by the Depositor, the Seller, the Servicer or the
Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within
the meaning of section 860G(a)(3) of the Code, the party discovering such fact
shall promptly (and in any event within five Business Days of discovery) give
written notice thereof to the other parties. In connection therewith, the
Trustee shall require the Seller, at the Seller's option, to either (i)
substitute, if the conditions in Section 2.03(c) with respect to substitutions
are satisfied, a Substitute Mortgage Loan for the affected Mortgage Loan, or
(ii) repurchase the affected Mortgage Loan within 90 days of such discovery in
the same manner as it would a Mortgage Loan for a breach of representation or
warranty made pursuant to Section 2.03. The Trustee shall reconvey to the Seller
the Mortgage Loan to be released pursuant hereto in the same manner, and on the
same terms and conditions, as it would a Mortgage Loan repurchased for breach of
a representation or warranty contained in Section 2.03.
Section 2.06 Execution and Delivery of Certificates.
The Trustee acknowledges the transfer and assignment to it of the Trust
Fund and, concurrently with such transfer and assignment, has executed and
delivered to or upon the order of the Depositor, the Certificates in authorized
denominations evidencing directly or indirectly the entire ownership of the
Trust Fund. The Trustee agrees to hold the Trust Fund and exercise the rights
referred to above for the benefit of all present and future Holders of the
Certificates.
Section 2.07 REMIC Matters.
The Preliminary Statement sets forth the designations and "latest
possible maturity date" for federal income tax purposes of all interests created
under this Agreement. The "Startup Day" for purposes of the REMIC Provisions
shall be the Closing Date. Each REMIC's fiscal year shall be the calendar year.
45
ARTICLE THREE
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01 Servicer to Service Mortgage Loans.
For and on behalf of the Certificateholders, the Servicer shall service
and administer the Mortgage Loans in accordance with this Agreement and the
Servicing Standard.
The Servicer shall not make or permit any modification, waiver, or
amendment of any term of any Mortgage Loan that would cause any REMIC created
under this Agreement to fail to qualify as a REMIC or result in the imposition
of any tax under section 860F(a) or section 860G(d) of the Code.
Without limiting the generality of the foregoing, the Servicer, in its
own name or in the name of the Depositor and the Trustee, is hereby authorized
and empowered by the Depositor and the Trustee, when the Servicer believes it
appropriate in its reasonable judgment, to execute and deliver, on behalf of the
Trustee, the Depositor, the Certificateholders, or any of them, any instruments
of satisfaction or cancellation, or of partial or full release or discharge, and
all other comparable instruments, with respect to the Mortgage Loans, and with
respect to the Mortgaged Properties held for the benefit of the
Certificateholders. The Servicer shall prepare and deliver to the Depositor or
the Trustee any documents requiring execution and delivery by either or both of
them appropriate to enable the Servicer to service and administer the Mortgage
Loans to the extent that the Servicer is not permitted to execute and deliver
such documents pursuant to the preceding sentence. Upon receipt of the
documents, the Depositor or the Trustee shall execute the documents and deliver
them to the Servicer.
The Servicer further is authorized and empowered by the Trustee, on
behalf of the Certificateholders and the Trustee, in its own name, when the
Servicer believes it appropriate in its best judgment to register any Mortgage
Loan on the MERS(R) System, or cause the removal from the registration of any
Mortgage Loan on the MERS(R) System, to execute and deliver, on behalf of the
Trustee and the Certificateholders or any of them, any and all instruments of
assignment and other comparable instruments with respect to such assignment or
re-recording of a Mortgage in the name of MERS, solely as nominee for the
Trustee and its successors and assigns.
In accordance with and to the extent of the Servicing Standard, the
Servicer shall advance funds necessary to effect the payment of taxes and
assessments on the Mortgaged Properties, which advances shall be reimbursable in
the first instance from related collections from the Mortgagors pursuant to
Section 3.07, and further as provided in Section 3.09. The costs incurred by the
Servicer in effecting the timely payments of taxes and assessments on the
Mortgaged Properties and related insurance premiums shall not, for the purpose
of calculating monthly distributions to the Certificateholders, be added to the
Stated Principal Balances of the related Mortgage Loans, notwithstanding that
the Mortgage Loans so permit.
Nothing in this Agreement to the contrary shall limit the Servicer from
undertaking any legal action that it may deem appropriate with respect to the
Mortgage Loans including, without limitation, any rights or causes of action
arising out of the origination of the Mortgage Loans.
46
Section 3.02 [Reserved].
Section 3.03 Rights of the Depositor and the Trustee in Respect of
the Servicer.
The Depositor may, but is not obligated to, enforce the obligations of
the Servicer under this Agreement and may, but is not obligated to, perform, or
cause a designee to perform, any defaulted obligation of the Servicer under this
Agreement and in connection with any such defaulted obligation to exercise the
related rights of the Servicer under this Agreement; provided that the Servicer
shall not be relieved of any of its obligations under this Agreement by virtue
of such performance by the Depositor or its designee. Neither the Trustee nor
the Depositor shall have any responsibility or liability for any action or
failure to act by the Servicer nor shall the Trustee or the Depositor be
obligated to supervise the performance of the Servicer under this Agreement or
otherwise.
Section 3.04 [Reserved].
Section 3.05 Trustee to Act as Servicer.
If the Servicer for any reason is no longer the Servicer under this
Agreement (including because of the occurrence or existence of an Event of
Default or termination by the Depositor), the Trustee or its successor shall
assume all of the rights and obligations of the Servicer under this Agreement
arising thereafter (except that the Trustee shall not be
(i) liable for losses of the Servicer pursuant to Section
3.10 or any acts or omissions of the predecessor Servicer
hereunder,
(ii) obligated to make Advances if it is prohibited from
doing so by applicable law,
(iii) obligated to effectuate repurchases or substitutions
of Mortgage Loans hereunder, including repurchases or
substitutions pursuant to Section 2.02 or 2.03,
(iv) responsible for expenses of the Servicer pursuant to
Section 2.03, or
(v) deemed to have made any representations and warranties
of the Servicer hereunder). Any assumption shall be subject to
Section 7.02.
Notwithstanding anything else in this Agreement to the contrary, in no
event shall the Trustee be liable for any servicing fee or for any differential
in the amount of the Servicing Fee paid under this Agreement and the amount
necessary to induce any successor Servicer to act as successor Servicer under
this Agreement and the transactions provided for in this Agreement.
Section 3.06 Collection of Mortgage Loan Payments; Certificate
Account; Distribution Account; Supplemental Interest Trust; Supplemental
Interest Reserve Fund.
(a) In accordance with and to the extent of the Servicing
Standard, the Servicer shall make reasonable efforts in accordance
with the customary and usual standards of practice of prudent
mortgage servicers to collect all payments called for under the
Mortgage Loans to the extent the procedures are consistent with
this Agreement and any related Required Insurance Policy.
Consistent with the foregoing, the Servicer may in its discretion
(i) waive any late payment charge or, subject to Section 3.20, any
Prepayment Charge in connection with the prepayment of a Mortgage
Loan and (ii) extend the due dates for payments due on a
Delinquent Mortgage Loan for a period not greater than 125 days.
In connection with a seriously delinquent
47
or defaulted Mortgage Loan, the Servicer may, consistent with the
Servicing Standard, waive, modify or vary any term of that
Mortgage Loan (including modifications that change the Mortgage
Rate, forgive the payment of principal or interest or extend the
final maturity date of that Mortgage Loan ), accept payment from
the related Mortgagor of an amount less than the Stated Principal
Balance in final satisfaction of that Mortgage Loan, or consent to
the postponement of strict compliance with any such term or
otherwise grant indulgence to any Mortgagor if in the Servicer's
determination such waiver, modification, postponement or
indulgence is not materially adverse to the interests of the
Certificateholders (taking into account any estimated loss that
might result absent such action) and is expected to minimize the
loss on such Mortgage Loan; provided, however, the Servicer shall
not initiate new lending to such Mortgagor through the Trust and
cannot, except as provided in the immediately succeeding sentence,
extend the maturity of any Mortgage Loan past the date on which
the final payment is due on the latest maturing Mortgage Loan as
of the Cut-off Date. With respect to no more than 5% of the
Mortgage Loans (measured by aggregate Cut-off Date Principal
Balance of the Mortgage Loans), the Servicer may extend the
maturity of a Mortgage Loan past the date on which the final
payment is due on the latest maturing Mortgage Loan as of the
Cut-off Date, but in no event more than one year past such date.
In the event of any such arrangement, the Servicer shall make
Advances on the related Mortgage Loan in accordance with Section
4.01 during the scheduled period in accordance with the
amortization schedule of the Mortgage Loan without modification
thereof because of the arrangements. The Servicer shall not be
required to institute or join in litigation with respect to
collection of any payment (whether under a Mortgage, Mortgage
Note, or otherwise or against any public or governmental authority
with respect to a taking or condemnation) if it reasonably
believes that enforcing the provision of the Mortgage or other
instrument pursuant to which the payment is required is prohibited
by applicable law. The Servicer shall not have the discretion to
sell any Delinquent or defaulted Mortgage Loan.
(b) [Reserved].
(c) [Reserved].
(d) The Servicer shall establish and maintain a Certificate
Account into which the Servicer shall deposit on a daily basis (i)
within two Business Days of receipt (in the case of items (i)
through (iii) below) and (2) within one Business Day of receipt
(in the case of all other items), except as otherwise specified
herein, the following payments and collections received by it in
respect of Mortgage Loans after the Cut-off Date (other than in
respect of principal and interest due on the Mortgage Loans by the
Cut-off Date) and the following amounts required to be deposited
hereunder:
(i) all payments on account of principal on the Mortgage
Loans, including Principal Prepayments;
(ii) all payments on account of interest on the Mortgage
Loans, net of the Servicing Fee;
(iii) all Insurance Proceeds, Subsequent Recoveries and
Liquidation Proceeds, other than proceeds to be applied to the
restoration or repair of the Mortgaged Property or released to the
Mortgagor in accordance with the Servicer's normal servicing
procedures;
(iv) any amount required to be deposited by the Servicer
pursuant to Section 3.06(f) in connection with any losses on
Permitted Investments;
48
(v) any amounts required to be deposited by the Servicer
pursuant to Sections 3.10 and 3.12;
(vi) all Purchase Prices from the Servicer or Seller and all
Substitution Adjustment Amounts;
(vii) all Advances made by the Servicer pursuant to Section
4.01; and
(viii) any other amounts required to be deposited under this
Agreement.
In addition, with respect to any Mortgage Loan that is subject to a
buydown agreement, on each Due Date for the Mortgage Loan, in addition to the
monthly payment remitted by the Mortgagor, the Servicer shall cause funds to be
deposited into the Certificate Account in an amount required to cause an amount
of interest to be paid with respect to the Mortgage Loan equal to the amount of
interest that has accrued on the Mortgage Loan from the preceding Due Date at
the Mortgage Rate net of the Servicing Fee Rate on that date.
The foregoing requirements for remittance by the Servicer shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of Prepayment Charges, late payment
charges or assumption fees, if collected, need not be remitted by the Servicer.
If the Servicer remits any amount not required to be remitted, it may at any
time withdraw that amount from the Certificate Account, any provision in this
Agreement to the contrary notwithstanding. The withdrawal or direction may be
accomplished by delivering written notice of it to the Trustee or any other
institution maintaining the Certificate Account that describes the amounts
deposited in error in the Certificate Account. The Servicer shall maintain
adequate records with respect to all withdrawals made pursuant to this Section
3.06. All funds deposited in the Certificate Account shall be held in trust for
the Certificateholders until withdrawn in accordance with Section 3.09.
(e) The Trustee shall establish and maintain the
Distribution Account on behalf of the Certificateholders. The
Trustee shall, promptly upon receipt, deposit in the Distribution
Account and retain in the Distribution Account the following:
(i) the aggregate amount remitted by the Servicer to the
Trustee pursuant to Section 3.09(a);
(ii) any amount deposited by the Servicer pursuant to
Section 3.06(f) in connection with any losses on Permitted
Investments; and
(iii) any other amounts deposited under this Agreement that
are required to be deposited in the Distribution Account.
If the Servicer remits any amount not required to be remitted, it may
at any time direct the Trustee in writing to withdraw that amount from the
Distribution Account, any provision in this Agreement to the contrary
notwithstanding. The direction may be accomplished by delivering an Officer's
Certificate to the Trustee that describes the amounts deposited in error in the
Distribution Account. All funds deposited in the Distribution Account shall be
held by the Trustee in trust for the Certificateholders until disbursed in
accordance with this Agreement or withdrawn in accordance with Section 3.09. In
no event shall the Trustee incur liability for withdrawals from the Distribution
Account at the direction of the Servicer.
49
(f) Each institution at which the Certificate Account is
maintained shall invest the funds in such account as directed in
writing by the Servicer in Permitted Investments, which shall
mature not later than the second Business Day preceding the
related Distribution Account Deposit Date (except that if the
Permitted Investment is an obligation of the institution that
maintains the account, then the Permitted Investment shall mature
not later than the Business Day preceding the Distribution Account
Deposit Date) and which shall not be sold or disposed of before
its maturity. The funds in the Distribution Account shall remain
uninvested. All such Permitted Investments shall be made in the
name of the Trustee, for the benefit of the Certificateholders.
All income realized from any such investment of funds on deposit
in the Certificate Account shall be for the benefit of the
Servicer as servicing compensation and shall be remitted to it
monthly as provided in this Agreement. The amount of any realized
losses on Permitted Investments in the Certificate Account shall
promptly be deposited by the Servicer in the Certificate Account.
The Trustee shall not be liable for the amount of any loss
incurred in respect of any investment or lack of investment of
funds held in the Certificate Account and made in accordance with
this Section 3.06.
(g) [reserved].
(h) (i) On the Closing Date, there is hereby established a
separate trust (the "Supplemental Interest Trust"), the assets of
which shall consist of the Supplemental Interest Reserve Fund and
the Supplemental Interest Trustee's rights and obligations under
the Corridor Contract. The Supplemental Interest Trust shall be
maintained by the Supplemental Interest Trustee, who initially
shall be the Trustee.
(ii) On the Closing Date, the Supplemental Interest Trustee
shall establish and maintain in its name, in trust for the benefit of the
Holders of the Class A-3 Certificates, the Supplemental Interest Reserve Fund.
All funds on deposit in the Supplemental Interest Reserve Fund 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.
(iii) On each Distribution Date, the Supplemental Interest
Trustee shall deposit into the Supplemental Interest Reserve Fund all amounts
received in respect of the Corridor Contract for the related Interest Accrual
Period. Funds in the Supplemental Interest Reserve Fund shall not be invested.
The Supplemental Interest Trustee shall make withdrawals from the Supplemental
Interest Reserve Fund to make distributions pursuant to Section 4.08 exclusively
(other than as expressly provided for in Section 3.09).
(i) The Servicer shall give notice to the Trustee, the
Seller, each Rating Agency and the Depositor of any proposed
change of the location of the Certificate Account not later than
30 days and not more than 45 days prior to any change of this
Agreement. The Trustee shall give notice to the Servicer, the
Seller, each Rating Agency and the Depositor of any proposed
change of the location of the Distribution Account not later than
30 days and not more than 45 days prior to any change of this
Agreement. The Supplemental Interest Trustee shall give notice to
the Servicer, the Seller, each Rating Agency and the Depositor of
any proposed change of the location of the Supplemental Interest
Reserve Fund prior to 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 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
50
taxes, assessments, hazard insurance premiums or comparable items
for the account of the Mortgagors. Nothing herein shall require
the Servicer to compel a Mortgagor to establish an Escrow Account
in violation of applicable law.
(b) Withdrawals of amounts so collected from the Escrow
Accounts may be made only to effect timely payment of taxes,
assessments, hazard insurance premiums, condominium or PUD
association dues, or comparable items, to reimburse (without
duplication) the Servicer out of related collections for any
payments made pursuant to Section 3.01 (with respect to taxes and
assessments and insurance premiums) and Section 3.10 (with respect
to hazard insurance), to refund to any Mortgagors any sums
determined to be overages, to pay interest, if required by law or
the related Mortgage or Mortgage Note, to Mortgagors on balances
in the Escrow Account or to clear and terminate the Escrow Account
at the termination of this Agreement in accordance with Section
9.01. The Escrow Accounts shall not be a part of the Trust Fund.
(c) The Servicer shall advance any payments referred to in
Section 3.07(a) that are not timely paid by the Mortgagors or
advanced by the Servicer on the date when the tax, premium or
other cost for which such payment is intended is due, but the
Servicer shall be required so to advance only to the extent that
such advances, in the good faith judgment of the Servicer, will be
recoverable by the Servicer out of Insurance Proceeds, Liquidation
Proceeds or otherwise.
Section 3.08 Access to Certain Documentation and Information
Regarding the Mortgage Loans.
The Servicer shall afford the Depositor and the Trustee reasonable
access to all records and documentation regarding the Mortgage Loans and all
accounts, insurance information and other matters relating to this Agreement,
such access being afforded without charge, but only upon reasonable request and
during normal business hours at the office designated by the Servicer.
Upon reasonable advance notice in writing, the Servicer will provide to
each Certificateholder or Certificate Owner that is a savings and loan
association, bank, or insurance company certain reports and reasonable access to
information and documentation regarding the Mortgage Loans sufficient to permit
the Certificateholder or Certificate Owner to comply with applicable regulations
of the OTS or other regulatory authorities with respect to investment in the
Certificates. The Servicer shall be entitled to be reimbursed by each such
Certificateholder or Certificate Owner for actual expenses incurred by the
Servicer in providing the reports and access.
Section 3.09 Permitted Withdrawals from the Certificate Account, the
Distribution Account and the Supplemental Interest Reserve
Fund.
(a) The Servicer may (and, in the case of clause (ix) below,
shall) from time to time make withdrawals from the Certificate
Account for the following purposes:
(i) to pay to the Servicer (to the extent not previously
retained) the servicing compensation to which it is entitled
pursuant to Section 3.15, and to pay to the Servicer, as
additional servicing compensation, earnings on or investment
income with respect to funds in or credited to the Certificate
Account;
(ii) to reimburse the Servicer or successor Servicer for the
unreimbursed Advances made by it, such right of reimbursement
pursuant to this subclause (ii) being limited to amounts received
on the Mortgage Loans in respect of which the Advance was made;
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(iii) to reimburse the Servicer or successor Servicer for
any Nonrecoverable Advance previously made by it;
(iv) to reimburse the Servicer for Insured Expenses from the
related Insurance Proceeds;
(v) to reimburse the Servicer for (a) unreimbursed Servicing
Advances, the Servicer's right to reimbursement pursuant to this
clause (a) with respect to any Mortgage Loan being limited to
amounts received on the Mortgage Loans that represent late
recoveries of the payments for which the advances were made
pursuant to Section 3.01 or Section 3.07, (b) unreimbursed
Servicing Advances made in respect of a Mortgage Loan for which
such Servicing Advances are not recoverable from the Mortgagor and
(b) for unpaid Servicing Fees as provided in Section 3.12;
(vi) to pay to the purchaser, with respect to each Mortgage
Loan or property acquired in respect of such Mortgage Loan that
has been purchased pursuant to Section 2.02, 2.03, or 3.12, all
amounts received thereon after the date of such purchase;
(vii) to reimburse the Seller, the Servicer, or the
Depositor for expenses incurred by any of them and reimbursable
pursuant to Section 6.03;
(viii) to withdraw any amount deposited in the Certificate
Account and not required to be deposited in the Certificate
Account;
(ix) by the Distribution Account Deposit Date, to withdraw
the Available Funds and the Trustee Fee for the Distribution Date,
to the extent 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 Servicer shall keep and maintain separate accounting, on a Mortgage
Loan by Mortgage Loan basis, to justify any withdrawal from the Certificate
Account pursuant to subclauses (i), (ii), (iv), (v), and (vi). Before making any
withdrawal from the Certificate Account pursuant to subclause (iii), the
Servicer shall deliver to the Trustee an Officer's Certificate of a Servicing
Officer indicating the amount of any previous Advance determined by the Servicer
to be a Nonrecoverable Advance and identifying the related Mortgage Loans and
their respective portions of the Nonrecoverable Advance.
(b) The Trustee shall withdraw funds from the Distribution
Account for distributions to Certificateholders in the manner
specified in this Agreement (and to withhold from the amounts so
withdrawn the amount of any taxes that it is authorized to
withhold pursuant to the third paragraph of Section 8.11). In
addition, the Trustee may from time to time make withdrawals from
the Distribution Account for the following purposes:
(i) to pay to itself the Trustee Fee for the related
Distribution Date;
(ii) to withdraw and return to the Servicer any amount
deposited in the Distribution Account and not required to be
deposited therein; and
(iii) to clear and terminate the Distribution Account upon
termination of the Agreement pursuant to Section 9.01.
52
(c) [reserved]
(d) The Supplemental Interest Trustee shall withdraw funds
on deposit in the Supplemental Interest Reserve Fund from the
Corridor Contract for distribution to the Class A-3 Certificates
in the manner specified in Section 4.08 (and to withhold from the
amounts so withdrawn the amount of any taxes that it is authorized
to retain pursuant to the third paragraph of Section 8.11). In
addition, the Supplemental Interest Trustee may from time to time
make withdrawals from the Supplemental Interest Reserve Fund for
the following purposes:
(i) to withdraw any amount deposited in the Supplemental
Interest Reserve Fund and not required to be deposited therein;
and
(ii) to clear and terminate the Supplemental Interest
Reserve Fund upon the earlier of (i) the reduction of the Class
Certificate Balance of the Class A-3 Certificates to zero and (ii)
the termination of this Agreement pursuant to Section 9.01.
Section 3.10 Maintenance of Hazard Insurance; Maintenance of Primary
Insurance Policies.
(a) The Servicer shall maintain, for each Mortgage Loan,
hazard insurance with extended coverage in an amount that is at
least equal to the lesser of
(i) the maximum insurable value of the improvements securing the
Mortgage Loan and
(ii) the greater of (y) the outstanding principal balance of the
Mortgage Loan and (z) an amount such that the proceeds of the policy are
sufficient to prevent the Mortgagor or the mortgagee from becoming a co-insurer.
Each policy of standard hazard insurance shall contain, or have an
accompanying endorsement that contains, a standard mortgagee clause. Any amounts
collected under the policies (other than the amounts to be applied to the
restoration or repair of the related Mortgaged Property or amounts released to
the Mortgagor in accordance with the Servicer's normal servicing procedures)
shall be deposited in the Certificate Account. Any cost incurred in maintaining
any insurance shall not, for the purpose of calculating monthly distributions to
the Certificateholders or remittances to the Trustee for their benefit, be added
to the principal balance of the Mortgage Loan, notwithstanding that the Mortgage
Loan so permits. Such costs shall be recoverable by the Servicer out of late
payments by the related Mortgagor or out of Liquidation Proceeds to the extent
permitted by Section 3.09. No earthquake or other additional insurance is to be
required of any Mortgagor or maintained on property acquired in respect of a
Mortgage other than pursuant to any applicable laws and regulations in force
that require additional insurance. If the Mortgaged Property is located at the
time of origination of the Mortgage Loan in a federally designated special flood
hazard area and the area is participating in the national flood insurance
program, the Servicer shall maintain flood insurance for the Mortgage Loan. The
flood insurance shall be in an amount equal to the least of (i) the original
principal balance of the related Mortgage Loan, (ii) the replacement value of
the improvements that are part of the Mortgaged Property, and (iii) the maximum
amount of flood insurance available for the related Mortgaged Property under the
national flood insurance program.
If the Servicer obtains and maintains a blanket policy insuring against
hazard losses on all of the Mortgage Loans, it shall have satisfied its
obligations in the first sentence of this Section 3.10. The policy may contain a
deductible clause on terms substantially equivalent to those commercially
available and maintained by comparable servicers. If the policy contains a
deductible clause and a policy complying
53
with the first sentence of this Section 3.10 has not been maintained on the
related Mortgaged Property, and if a loss that would have been covered by the
required policy occurs, the Servicer shall deposit in the Certificate Account,
without any right of reimbursement, the amount not otherwise payable under the
blanket policy because of the deductible clause. In connection with its
activities as Servicer of the Mortgage Loans, the Servicer agrees to present,
on behalf of itself, the Depositor, and the Trustee for the benefit of the
Certificateholders, claims under any blanket policy.
(b) The Servicer shall not take any action that would result
in non-coverage under any applicable Primary Insurance Policy of
any loss that, but for the actions of the Servicer, would have
been covered thereunder. The Servicer shall not cancel or refuse
to renew any Primary Insurance Policy that is in effect at the
date of the initial issuance of the Certificates and is required
to be kept in force hereunder unless the replacement Primary
Insurance Policy for the canceled or non-renewed policy is
maintained with a Qualified Insurer. The Servicer need not
maintain any Primary Insurance Policy if maintaining the Primary
Insurance Policy is prohibited by applicable law. The Servicer
agrees, to the extent permitted by applicable law, to effect the
timely payment of the premiums on each Primary Insurance Policy,
and any costs not otherwise recoverable shall be recoverable by
the Servicer from the related liquidation proceeds.
In connection with its activities as Servicer of the Mortgage Loans,
the Servicer agrees to present, on behalf of itself, the Trustee and the
Certificateholders, claims to the insurer under any Primary Insurance Policies
and, in this regard, to take any reasonable action in accordance with the
Servicing Standard necessary to permit recovery under any Primary Insurance
Policies respecting defaulted Mortgage Loans. Any amounts collected by the
Servicer under any Primary Insurance Policies shall be deposited in the
Certificate Account.
Section 3.11 Enforcement of Due-On-Sale Clauses; Assumption
Agreements.
(a) Except as otherwise provided in this Section 3.11, when
any property subject to a Mortgage has been conveyed by the
Mortgagor, the Servicer shall to the extent that it has knowledge
of the conveyance and in accordance with the Servicing Standard,
enforce any due-on-sale clause contained in any Mortgage Note or
Mortgage, to the extent permitted under applicable law and
governmental regulations, but only to the extent that enforcement
will not adversely affect or jeopardize coverage under any
Required Insurance Policy. Notwithstanding the foregoing, the
Servicer is not required to exercise these rights with respect to
a Mortgage Loan if the Person to whom the related Mortgaged
Property has been conveyed or is proposed to be conveyed satisfies
the conditions contained in the Mortgage Note and Mortgage related
thereto and the consent of the mortgagee under the Mortgage Note
or Mortgage is not otherwise so required under the Mortgage Note
or Mortgage as a condition to the transfer.
If (i) the Servicer is prohibited by law from enforcing any due-on-sale
clause, (ii) coverage under any Required Insurance Policy would be adversely
affected, (iii) the Mortgage Note does not include a due-on-sale clause, or (iv)
nonenforcement is otherwise permitted hereunder, the Servicer is authorized,
subject to Section 3.11(b), to take or enter into an assumption and modification
agreement from or with the person to whom the property has been or is about to
be conveyed, pursuant to which the person becomes liable under the Mortgage Note
and, unless prohibited by applicable state law, the Mortgagor remains liable
thereon. The Mortgage Loan must continue to be covered (if so covered before the
Servicer enters into the agreement) by the applicable Required Insurance
Policies.
The Servicer, subject to Section 3.11(b), is also authorized with the
prior approval of the insurers under any Required Insurance Policies to enter
into a substitution of liability agreement with the Person, pursuant to which
the original Mortgagor is released from liability and the Person is substituted
as
54
Mortgagor and becomes liable under the Mortgage Note. Notwithstanding the
foregoing, the Servicer shall not be deemed to be in default under this
Section 3.11 because of any transfer or assumption that the Servicer
reasonably believes it is restricted by law from preventing, for any reason
whatsoever.
(b) Subject to the Servicer's duty to enforce any
due-on-sale clause to the extent set forth in Section 3.11(a), in
any case in which a Mortgaged Property has been conveyed to a
Person by a Mortgagor, and the Person is to enter into an
assumption agreement or modification agreement or supplement to
the Mortgage Note or Mortgage that requires the signature of the
Trustee, or if an instrument of release signed by the Trustee is
required releasing the Mortgagor from liability on the Mortgage
Loan, the Servicer shall prepare and deliver to the Trustee for
signature and shall direct the Trustee, in writing, to execute the
assumption agreement with the Person to whom the Mortgaged
Property is to be conveyed, and the modification agreement or
supplement to the Mortgage Note or Mortgage or other instruments
appropriate to carry out the terms of the Mortgage Note or
Mortgage or otherwise to comply with any applicable laws regarding
assumptions or the transfer of the Mortgaged Property to the
Person. In connection with any such assumption, no material term
of the Mortgage Note may be changed.
In addition, the substitute Mortgagor and the Mortgaged Property must
be acceptable to the Servicer in accordance with its underwriting standards as
then in effect. Together with each substitution, assumption, or other agreement
or instrument delivered to the Trustee for execution by it, the Servicer shall
deliver an Officer's Certificate signed by a Servicing Officer stating that the
requirements of this subsection have been met in connection with such Officer's
Certificate. The Servicer shall notify the Trustee that any substitution or
assumption agreement has been completed by forwarding to the Trustee the
original of the substitution or assumption agreement, which in the case of the
original shall be added to the related Mortgage File and shall, for all
purposes, be considered a part of the Mortgage File to the same extent as all
other documents and instruments constituting a part of the Mortgage File. The
Servicer will retain any fee collected by it for entering into an assumption or
substitution of liability agreement as additional servicing compensation.
Section 3.12 Realization Upon Defaulted Mortgage Loans.
The Servicer shall use reasonable efforts in accordance with the
Servicing Standard to foreclose on or otherwise comparably convert the ownership
of assets securing such of the Mortgage Loans as come into and continue in
default and as to which no satisfactory arrangements can be made for collection
of delinquent payments. In connection with the foreclosure or other conversion,
the Servicer shall follow the Servicing Standard and shall follow the
requirements of the insurer under any Required Insurance Policy. The Servicer
shall not be required to expend its own funds in connection with any foreclosure
or towards the restoration of any property unless it determines (i) that the
restoration or foreclosure will increase the proceeds of liquidation of the
Mortgage Loan after reimbursement to itself of restoration expenses and (ii)
that restoration expenses will be recoverable to it through Liquidation Proceeds
(respecting which it shall have priority for purposes of withdrawals from the
Certificate Account). The Servicer shall be responsible for all other costs and
expenses incurred by it in any foreclosure proceedings. The Servicer is entitled
to reimbursement of such costs and expenses from the liquidation proceeds with
respect to the related Mortgaged Property, as provided in the definition of
Liquidation Proceeds. If the Servicer has knowledge that a Mortgaged Property
that the Servicer is contemplating acquiring in foreclosure or by deed in lieu
of foreclosure is located within a one mile radius of any site listed in the
Expenditure Plan for the Hazardous Substance Clean Up Bond Act of 1984 or other
site with environmental or hazardous waste risks known to the Servicer, the
Servicer will, before acquiring the Mortgaged Property, consider the risks and
only take action in accordance with its established environmental review
procedures.
55
With respect to any REO Property, the deed or certificate of sale shall
be taken in the name of the Trustee for the benefit of the Certificateholders,
or its nominee, on behalf of the Certificateholders. The Trustee's name shall be
placed on the title to the REO Property solely as the Trustee hereunder and not
in its individual capacity. The Servicer shall ensure that the title to the REO
Property references the Pooling and Servicing Agreement and the Trustee's
capacity hereunder. Pursuant to its efforts to sell the REO Property, the
Servicer shall either itself or through an agent selected by the Servicer
protect and conserve the REO Property in accordance with the Servicing Standard.
The Servicer shall perform the tax reporting and withholding required
by sections 1445 and 6050J of the Code with respect to foreclosures and
abandonments, the tax reporting required by section 6050H of the Code with
respect to the receipt of mortgage interest from individuals and, if required by
section 6050P of the Code with respect to the cancellation of indebtedness by
certain financial entities, by preparing any required tax and information
returns, in the form required.
If the Trust Fund acquires any Mortgaged Property as aforesaid or
otherwise in connection with a default or imminent default on a Mortgage Loan,
the REO Property shall only be held temporarily, shall be actively marketed for
sale, and the Servicer shall dispose of the Mortgaged Property as soon as
practicable, and in any case before the end of the third calendar year following
the calendar year in which the Trust Fund acquires the property. Notwithstanding
any other provision of this Agreement, no Mortgaged Property acquired by the
Trust Fund shall be rented (or allowed to continue to be rented) or otherwise
used for the production of income by or on behalf of the Trust Fund.
The decision of the Servicer to foreclose on a defaulted Mortgage Loan
shall be subject to a determination by the Servicer that the proceeds of the
foreclosure would exceed the costs and expenses of bringing a foreclosure
proceeding. The proceeds received from the maintenance of any REO Properties,
net of reimbursement to the Servicer for costs incurred (including any property
or other taxes) in connection with maintenance of the REO Properties and net of
unreimbursed Servicing Fees, Advances, and Servicing Advances, shall be applied
to the payment of principal of and interest on the related defaulted Mortgage
Loans (with interest accruing as though the Mortgage Loans were still current
and adjustments, if applicable, to the Mortgage Rate were being made in
accordance with the Mortgage Note) and all such proceeds shall be deemed, for
all purposes in this Agreement, to be payments on account of principal and
interest on the related Mortgage Notes and shall be deposited into the
Certificate Account. To the extent the net proceeds received during any calendar
month exceeds the amount attributable to amortizing principal and accrued
interest at the related Mortgage Rate on the related Mortgage Loan for the
calendar month, the excess shall be considered to be a partial prepayment of
principal of the related Mortgage Loan.
The proceeds from any liquidation of a Mortgage Loan, as well as any
proceeds from an REO Property, will be applied in the following order of
priority: first, to reimburse the Servicer for any related unreimbursed
Servicing Advances or Servicing Fees or for any related unreimbursed Advances,
as applicable; second, to reimburse the Servicer, as applicable, and to
reimburse the Certificate Account for any Nonrecoverable Advances (or portions
thereof) that were previously withdrawn by the Servicer pursuant to Section
3.09(a)(iii) that related to the Mortgage Loan; third, to accrued and unpaid
interest (to the extent no Advance has been made for such amount or any such
Advance has been reimbursed) on the Mortgage Loan or related REO Property, at
the Adjusted Net Mortgage Rate to the Due Date occurring in the month in which
such amounts are required to be distributed; and fourth, as a recovery of
principal of the Mortgage Loan. The Servicer will retain any Excess Proceeds
from the liquidation of a Liquidated Mortgage Loan as additional servicing
compensation pursuant to Section 3.15.
The Servicer may agree to a modification of any Mortgage Loan at the
request of the related Mortgagor if (i) the modification is in lieu of a
refinancing and (ii) the Servicer purchases that Mortgage
56
Loan from the Trust Fund as described below. Upon the agreement of the
Servicer to modify a Mortgage Loan in accordance with the preceding sentence,
the Servicer shall purchase that Mortgage Loan and all interest of the Trustee
in that Mortgage Loan shall automatically be deemed transferred and assigned
to the Servicer and all benefits and burdens of ownership thereof, including
the right to accrued interest thereon from the date of purchase and the risk
of default thereon, shall pass to the Servicer. The Servicer shall promptly
deliver to the Trustee a certification of a Servicing Officer to the effect
that all requirements of this paragraph have been satisfied with respect to a
Mortgage Loan to be repurchased pursuant to this paragraph.
The Servicer shall deposit the Purchase Price for any Mortgage Loan
repurchased pursuant to Section 3.12 in the Certificate Account pursuant to
Section 3.06 within one Business Day after the purchase of the Mortgage Loan.
Upon receipt by the Trustee of written notification of any such deposit signed
by a Servicing Officer, the Trustee shall release to the Servicer the related
Mortgage File and shall execute and deliver such instruments of transfer or
assignment, in each case without recourse, as shall be necessary to vest in the
Servicer any Mortgage Loan previously transferred and assigned pursuant hereto.
The Servicer covenants and agrees to indemnify the Trust Fund against any
liability for any "prohibited transaction" taxes and any related interest,
additions, and penalties imposed on the Trust Fund established hereunder as a
result of any modification of a Mortgage Loan effected pursuant to this Section,
or any purchase of a Mortgage Loan by the Servicer in connection with a
modification (but such obligation shall not prevent the Servicer or any other
appropriate Person from contesting any such tax in appropriate proceedings and
shall not prevent the Servicer from withholding payment of such tax, if
permitted by law, pending the outcome of such proceedings). The Servicer shall
have no right of reimbursement for any amount paid pursuant to the foregoing
indemnification, except to the extent that the amount of any tax, interest, and
penalties, together with interest thereon, is refunded to the Trust Fund.
Section 3.13 Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the
Servicer of a notification that payment in full will be escrowed in a manner
customary for such purposes, the Servicer will immediately notify the Trustee by
delivering a Request for Release substantially in the form of Exhibit N. Upon
receipt of the request, the Trustee shall promptly release the related Mortgage
File to the Servicer, and the Trustee shall at the Servicer's direction execute
and deliver to the Servicer the request for reconveyance, deed of reconveyance,
or release or satisfaction of mortgage or such instrument releasing the lien of
the Mortgage in each case provided by the Servicer, together with the Mortgage
Note with written evidence of cancellation thereon. The Servicer is authorized
to cause the removal from the registration on the MERS System of such Mortgage
and to execute and deliver, on behalf of the Trustee and the Certificateholders
or any of them, any and all instruments of satisfaction or cancellation or of
partial or full release. Expenses incurred in connection with any instrument of
satisfaction or deed of reconveyance shall be chargeable to the related
Mortgagor.
From time to time and as shall be appropriate for the servicing or
foreclosure of any Mortgage Loan, including for such purpose collection under
any policy of flood insurance, any fidelity bond or errors or omissions policy,
or for the purposes of effecting a partial release of any Mortgaged Property
from the lien of the Mortgage or the making of any corrections to the Mortgage
Note or the Mortgage or any of the other documents included in the Mortgage
File, the Trustee shall, upon delivery to the Trustee of a Request for Release
in the form of Exhibit M signed by a Servicing Officer, release the Mortgage
File to the Servicer or its designee. Subject to the further limitations set
forth below, the Servicer shall cause the Mortgage File or documents so released
to be returned to the Trustee when the need therefor by the Servicer no longer
exists, unless the Mortgage Loan is liquidated and the proceeds thereof are
deposited in the Certificate Account, in which case the Servicer shall deliver
to the Trustee a Request for Release in the form of Exhibit N, signed by a
Servicing Officer.
57
If the Servicer at any time seeks to initiate a foreclosure proceeding
in respect of any Mortgaged Property as authorized by this Agreement, the
Servicer shall deliver to the Trustee, for signature, as appropriate, any court
pleadings, requests for trustee's sale, or other documents necessary to
effectuate such foreclosure or any legal action brought to obtain judgment
against the Mortgagor on the Mortgage Note or the Mortgage or to obtain a
deficiency judgment or to enforce any other remedies or rights provided by the
Mortgage Note or the Mortgage or otherwise available at law or in equity.
Section 3.14 Documents, Records and Funds in Possession of the
Servicer to be Held for the Trustee.
The Servicer shall account fully to the Trustee for any funds it
receives or otherwise collects as Liquidation Proceeds or Insurance Proceeds in
respect of any Mortgage Loan. All Mortgage Files and funds collected or held by,
or under the control of, the Servicer in respect of any Mortgage Loans, whether
from the collection of principal and interest payments or from Liquidation
Proceeds, including any funds on deposit in the Certificate Account, shall be
held by the Servicer for and on behalf of the Trustee and shall be and remain
the sole and exclusive property of the Trustee, subject to the applicable
provisions of this Agreement. The Servicer also agrees that it shall not create,
incur or subject any Mortgage File or any funds that are deposited in the
Certificate Account, Distribution Account, or any Escrow Account, or any funds
that otherwise are or may become due or payable to the Trustee for the benefit
of the Certificateholders, to any claim, lien, security interest, judgment,
levy, writ of attachment, or other encumbrance, or assert by legal action or
otherwise any claim or right of setoff against any Mortgage File or any funds
collected on, or in connection with, a Mortgage Loan, except, however, that the
Servicer shall be entitled to set off against and deduct from any such funds any
amounts that are properly due and payable to the Servicer under this Agreement.
Section 3.15 Servicing Compensation.
As compensation for its activities hereunder, the Servicer may retain
or withdraw from the Certificate Account the Servicing Fee for each Mortgage
Loan for the related Distribution Date. Notwithstanding the foregoing, the
Servicing Fee payable to the Servicer shall be reduced by the lesser of the
aggregate of the Prepayment Interest Shortfalls with respect to the Distribution
Date and the aggregate Compensating Interest for the Distribution Date.
If the Servicer directly services a Mortgage Loan, the Servicer may
retain the Servicing Fee for its own account as compensation for performing
services.
Additional servicing compensation in the form of Prepayment Charges,
Excess Proceeds, Prepayment Interest Excess, assumption fees, late payment
charges and all income net of any losses realized from Permitted Investments
shall be retained by the Servicer to the extent not required to be deposited in
the Certificate Account pursuant to Section 3.06. The Servicer shall be required
to pay all expenses incurred by it in connection with its servicing activities
hereunder (including the payment of any premiums for hazard insurance, and any
Primary Insurance Policy and maintenance of the other forms of insurance
coverage required by this Agreement) and shall not be entitled to reimbursement
therefor except as specifically provided in this Agreement.
Section 3.16 Access to Certain Documentation.
The Servicer shall provide to the OTS and the FDIC and to comparable
regulatory authorities supervising Holders of Certificates and Certificate
Owners and the examiners and supervisory agents of the OTS, the FDIC, and such
other authorities, access to the documentation regarding the Mortgage Loans
required by applicable regulations of the OTS and the FDIC. Access shall be
afforded without charge,
58
but only upon reasonable prior written request and during normal business
hours at the offices designated by the Servicer. Nothing in this Section 3.16
shall limit the obligation of the Servicer to observe any applicable law
prohibiting disclosure of information regarding the Mortgagors and the failure
of the Servicer to provide access as provided in this Section 3.16 as a result
of such obligation shall not constitute a breach of this Section 3.16.
Section 3.17 Annual Statement as to Compliance.
(a) By March 1 of each year, commencing with 2008, the
Servicer shall deliver to the Trustee via electronic mail
(▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇.▇▇▇) and the Depositor an Officer's
Certificate signed by two Servicing Officers stating, as to each
signer thereof, that (i) a review of the activities of the
Servicer during the preceding calendar year (or applicable portion
thereof) and of the performance of the Servicer under this
Agreement has been made under such officer's supervision, and (ii)
to the best of such officer's knowledge, based on the review, the
Servicer has fulfilled all its obligations under this Agreement,
in all material respects throughout the year (or applicable
portion thereof), or, if there has been a failure to fulfill any
obligation in any material respect, specifying each failure known
to the officer and the nature and status thereof.
(b) [Reserved].
(c) Copies of such statement shall be provided by the
Trustee to any Certificateholder or Certificate Owner upon request
at the Servicer's expense, provided such statement is delivered by
the Servicer to the Trustee.
Section 3.18 Errors and Omissions Insurance; Fidelity Bonds.
The Servicer shall obtain and maintain in force (a) policies of
insurance covering errors and omissions in the performance of its obligations as
Servicer hereunder and (b) a fidelity bond covering its officers, employees, and
agents. Each policy and bond shall, together, comply with the requirements from
time to time of FNMA or FHLMC for persons performing servicing for mortgage
loans purchased by FNMA or FHLMC. If any policy or bond ceases to be in effect,
the Servicer shall obtain a comparable replacement policy or bond from an
insurer or issuer meeting the above requirements as of the date of the
replacement.
Section 3.19 The Supplemental Interest Trust
The Supplemental Interest Trustee, on behalf of the Supplemental
Interest Trust, will enter into the Corridor Contract with the Cap Counterparty.
The Corridor Contract will not be considered as asset of the trust or any REMIC
but instead will be an asset of the Supplemental Interest Trust. The Trustee, on
behalf of the Supplemental Interest Trust, shall cause to be deposited any
amounts received from time to time with respect to the Corridor Contract into
the Supplemental Interest Reserve Fund.
The Cap Counterparty shall act as calculation agent under the Corridor
Contract and the Trustee shall be entitled to conclusively rely on the accuracy,
completeness and correctness of calculations made by the Cap Counterparty as
calculation agent. The Trustee, on behalf of the Supplemental Interest Trust,
shall terminate the Corridor Contract, upon the occurrence of certain events of
default or termination events to the extent specified thereunder. Upon any such
termination, the Cap Counterparty will be obligated to pay the Supplemental
Interest Trustee, for the benefit of the Supplemental Interest Trust, an amount
in respect of such termination. Any amounts received by the Supplemental
Interest Trustee for the benefit of the Supplemental Interest Trust in respect
of the termination of the Corridor Contract shall
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be deposited and held in the Supplemental Interest Reserve Fund and applied on
future Distribution Dates to pay the Yield Supplement Amount to the Class A-3
Certificates.
Any amounts remaining in the Supplemental Interest Reserve Fund on the
Distribution Date immediately following the earlier of (x) the Termination Date
and (y) the date on which the Class Certificate Balance of the Class A-3
Certificates has been reduced to zero, will be distributed to HSBC Securities
(USA) Inc., and will not be available for payment of any Yield Supplement
Amounts on the Class A-3 Certificates.
Section 3.20 [Reserved].
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ARTICLE FOUR
DISTRIBUTIONS AND ADVANCES BY THE SERVICER
Section 4.01 Advances.
(a) The Servicer shall determine on or before each Servicer
Advance Date whether it is required to make an Advance pursuant to
the definition thereof. If the Servicer determines it is required
to make an Advance, it shall, on or before the Servicer Advance
Date, either (i) deposit into the Certificate Account an amount
equal to the Advance or (ii) make an appropriate entry in its
records relating to the Certificate Account that any Amount Held
for Future Distribution has been used by the Servicer in discharge
of its obligation to make any such Advance. Any funds so applied
shall be replaced by the Servicer by deposit in the Certificate
Account no later than the close of business on the next Servicer
Advance Date. The Servicer shall be entitled to be reimbursed from
the Certificate Account for all Advances of its own funds made
pursuant to this Section 4.01 as provided in Section 3.09. The
obligation to make Advances with respect to any Mortgage Loan
shall continue if such Mortgage Loan has been foreclosed or
otherwise terminated and the Mortgaged Property has not been
liquidated. The Servicer shall inform the Trustee of the amount of
the Advance to be made on each Servicer Advance Date no later than
the second Business Day before the related Distribution Date.
(b) If the Servicer determines that it will be unable to
comply with its obligation to make the Advances as and when
described in the second sentence of Section 4.01(a), it shall use
its best efforts to give written notice thereof to the Trustee
(each such notice an "Advance Notice"; and such notice may be
given by telecopy), not later than 3:00 P.M., New York time, on
the Business Day immediately preceding the related Servicer
Advance Date, specifying the amount that it will be unable to
deposit (each such amount an "Advance Deficiency") and certifying
that such Advance Deficiency constitutes an Advance hereunder and
is not a Nonrecoverable Advance. If the Trustee receives a Trustee
Advance Notice on or before 3:00 P.M., New York time on a Servicer
Advance Date, the Trustee is entitled to immediately terminate the
Servicer under Section 7.01, and shall, not later than 3:00 P.M.,
New York time, on the related Distribution Date, deposit in the
Distribution Account an amount equal to the Advance Deficiency
identified in such Trustee Advance Notice unless it is prohibited
from so doing by applicable law. Notwithstanding the foregoing,
the Trustee shall not be required to make such deposit if the
Trustee shall have received written notification from the Servicer
that the Servicer has deposited or caused to be deposited in the
Certificate Account an amount equal to such Advance Deficiency by
3:00 P.M. New York time on the related Distribution Date. If the
Trustee has not terminated the Servicer, the Servicer shall
reimburse the Trustee for the amount of any Advance (including
interest at the Prime Rate on the day of such reimbursement
published in The Wall Street Journal) on such amount, made by the
Trustee pursuant to this Section 4.01(b) not later than the second
day following the related Servicer Advance Date. In the event that
the Servicer does not reimburse the Trustee in accordance with the
requirements of the preceding sentence, the Trustee shall
immediately (a) terminate all of the rights and obligations of the
Servicer under this Agreement in accordance with Section 7.01 and
(b) subject to the limitations set forth in Section 3.05, assume
all of the rights and obligations of the Servicer hereunder.
(c) The Servicer shall, not later than the close of business
on the Business Day immediately preceding each Servicer Advance
Date, deliver to the Trustee a report (in form and substance
reasonably satisfactory to the Trustee) that indicates (i) the
Mortgage Loans with respect to which the Servicer has determined
that the related Scheduled Payments should be
61
advanced and (ii) the amount of the related Scheduled Payments.
The Servicer shall deliver to the Trustee on the related Servicer
Advance Date an Officer's Certificate of a Servicing Officer
indicating the amount of any proposed Advance determined by the
Servicer to be a Nonrecoverable Advance.
Section 4.02 Priorities of Distribution.
(a) (1) On each Distribution Date, the Trustee shall
withdraw any Available Funds from the Distribution Account and
apply such funds to distributions on the Senior Certificates in
the following order and priority and, in each case, to the extent
of Available Funds remaining:
(i) concurrently, to each interest-bearing Class of Senior
Certificates, an amount allocable to interest equal to the related
Class Optimal Interest Distribution Amount, any shortfall being
allocated among such Classes in proportion to the amount of the
Class Optimal Interest Distribution Amount that would have been
distributed in the absence of such shortfall; provided that prior
to the Accrual Termination Date, the Accrual Amount shall be
distributed as provided in Section 4.02(a)(1)(ii);
(ii) [reserved];
(iii) concurrently, to the Classes of Senior Certificates as
follows:
(A) to the Class PO Certificates the PO Formula
Principal Amount until its Class Certificate Balance is
reduced to zero; and
(B) the Non-PO Formula Principal Amount up to the
amount of the Senior Principal Distribution Amount for such
Distribution Date in the following priority:
1. to the Class A-R Certificates, until its
Class Certificate Balance is reduced to zero;
2. concurrently, to the Class A-1 and Class A-2
Certificates, pro rata, the Priority Amount, until
their respective Class Certificate Balances are
reduced to zero;
3. concurrently, an amount up to $2,235,247 on
each Distribution Date, as follows:
(a) 97% concurrently, to
the Class A-8 and Class A-9
Certificates, pro rata, until their
respective Class Certificate
Balances are reduced to zero; and
(b) 3%, concurrently, to
the Class A-3 and Class A-5
Certificates, pro rata, until their
respective Class Certificate
Balances are reduced to zero; and
4. concurrently, to the Class A-3 and Class A-5
Certificates, pro rata, until their respective Class
Certificate Balances are reduced to zero;
62
5. concurrently, to the Class A-8 and Class A-9
Certificates, pro rata, until their respective Class
Certificate Balances are reduced to zero;
6. to the Class A-7 Certificates, until its
Class Certificate Balance is reduced to zero; and
7. concurrently, to the Class A-1 and Class A-2
Certificates, pro rata, without regard to the Priority
Amount and until their respective Class Certificate
Balances are reduced to zero.
(iv) to the Class PO Certificates, any Class PO Deferred
Amount, up to an amount not to exceed the amount calculated
pursuant to the definition of Subordinated Principal Distribution
Amount actually received or advanced for such Distribution Date
(with such amount to be allocated first from amounts calculated
pursuant to (i) and (ii) and then (iii) of the definition of
Subordinated Principal Distribution Amount;
(2) On each Distribution Date, Available Funds remaining after making
the distributions described in Section 4.02(a)(1) will be distributed to the
Subordinated Certificates and the Class A-R Certificates, subject to paragraph
4.02(e) below, in the following order of priority:
(A) to the Class B-1 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution
Amount for such Class for such Distribution Date;
(B) to the Class B-1 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution
Date until the Class Certificate Balance thereof is reduced
to zero;
(C) to the Class B-2 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution
Amount for such Class for such Distribution Date;
(D) to the Class B-2 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution
Date until the Class Certificate Balance thereof is reduced
to zero;
(E) to the Class B-3 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution
Amount for such Class for such Distribution Date;
(F) to the Class B-3 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution
Date until the Class Certificate Balance thereof is reduced
to zero;
(G) to the Class B-4 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution
Amount for such Class for such Distribution Date;
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(H) to the Class B-4 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution
Date until the Class Certificate Balance thereof is reduced
to zero;
(I) to the Class B-5 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution
Amount for such Class for such Distribution Date;
(J) to the Class B-5 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution
Date until the Class Certificate Balance thereof is reduced
to zero;
(K) to the Class B-6 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution
Amount for such Class for such Distribution Date; and
(L) to the Class B-6 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution
Date until the Class Certificate Balance thereof is reduced
to zero;
(3) to the Class A-R Certificates, any remaining funds.
On any Distribution Date, amounts distributed in respect of Class PO
Deferred Amounts will not reduce the Class Certificate Balance of the Class PO
Certificates.
On any Distribution Date, to the extent the Amount Available for Senior
Principal is insufficient to make the full distribution required to be made
pursuant to Section 4.02(a)(1)(iii), (A) the amount distributable on the Class
PO Certificates in respect of principal shall be equal to the product of (1) the
Amount Available for Senior Principal and (2) a fraction, the numerator of which
is the PO Formula Principal Amount and the denominator of which is the sum of
such PO Formula Principal Amount and the Senior Principal Distribution Amount
and (B) the amount distributable on the Senior Certificates other than the Class
PO Certificates, in respect of principal shall be equal to the product of (1)
such Amount Available for Senior Principal and (2) a fraction, the numerator of
which is the Senior Principal Distribution Amount and the denominator of which
is the sum of such Senior Principal Distribution Amount and the PO Formula
Principal Amount.
(b) On each Distribution Date prior to and including the
Accrual Termination Date, the Accrual Amount for such Distribution
Date shall not (except as provided in the second to last sentence
in this paragraph) be distributed as interest with respect to the
Class of Accrual Certificates, but shall instead be added to the
Class Certificate Balance of such Class on the related
Distribution Date. With respect to any Distribution Date prior to
and including the Accrual Termination Date on which principal
payments on the Class of Accrual Certificates are distributed
pursuant to Section 4.02(a)(1)(ii), the related Accrual Amount
shall be deemed to have been added on such Distribution Date to
the Class Certificate Balance (and included in the amount
distributable on the related Classes of Accretion Directed
Certificates pursuant to Section 4.02(a)(1)(ii) for such
Distribution Date) and the related distribution thereon shall be
deemed to have been applied concurrently towards the reduction of
all or a portion of the amount so added and, to the extent of any
excess, towards the reduction of the Class Certificate Balance of
such Class of Accrual Certificates immediately prior to such
Distribution Date. Notwithstanding any such distribution, each
such Class shall continue to be a Class of Accrual Certificates on
each subsequent Distribution Date until the Accrual Termination
Date.
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(c) On each Distribution Date on or after the Senior Credit
Support Depletion Date, notwithstanding the allocation and
priority set forth in Section 4.02(a)(1)(iii)(B), the Non-PO
Formula Principal Amount up to the amount of the Senior Principal
Distribution Amount for such Distribution Date will be distributed
concurrently, as principal, of the Classes of Senior Certificates
(other than the Notional Amount Certificates and the Class PO
Certificates), pro rata, on the basis of their respective Class
Certificate Balances, until the Class Certificate Balances thereof
are reduced to zero.
(d) On each Distribution Date, the amount referred to in
clause (i) of the definition of Class Optimal Interest
Distribution Amount for each Class of Certificates for such
Distribution Date shall be reduced by (i) the related Class' pro
rata share of Net Prepayment Interest Shortfalls based on the
related Class Optimal Interest Distribution Amount, without taking
into account such Net Prepayment Interest Shortfalls and (ii) the
related Class' Allocable Share of (A) after the Special Hazard
Coverage Termination Date, with respect to each Mortgage Loan (or,
after the Senior Credit Support Depletion Date, any Mortgage Loan)
that became a Special Hazard Mortgage Loan during the calendar
month preceding the month of such Distribution Date, the excess of
one month's interest at the Adjusted Net Mortgage Rate on the
Stated Principal Balance of such Mortgage Loan as of the Due Date
in such month over the amount of Liquidation Proceeds applied as
interest on such Mortgage Loan with respect to such month, (B)
after the Bankruptcy Coverage Termination Date, with respect to
each Mortgage Loan (or, after the Senior Credit Support Depletion
Date, any Mortgage Loan) that became subject to a Bankruptcy Loss
during the calendar month preceding the month of such Distribution
Date, the interest portion of the related Debt Service Reduction
or Deficient Valuation, (C) each Relief Act Reduction for the
Mortgage Loans (or, after the Senior Credit Support Depletion
Date, any Mortgage Loan) incurred during the calendar month
preceding the month of such Distribution Date and (D) after the
Fraud Loss Coverage Termination Date, (or, after the Senior Credit
Support Depletion Date, any Mortgage Loan) that became a Fraud
Loan during the calendar month preceding the month of such
Distribution Date, the excess of one month's interest at the
Adjusted Net Mortgage Rate on the Stated Principal Balance of such
Mortgage Loan as of the Due Date in such month over the amount of
Liquidation Proceeds applied as interest on such Mortgage Loan
with respect to such month.
(e) Notwithstanding the priority and allocation contained in
Section 4.02(a), if, with respect to any Class of Subordinated
Certificates, on any Distribution Date the sum of the related
Class Subordination Percentages of such Class and of all Classes
of Subordinated Certificates that have a higher numerical Class
designation than such Class (the "Applicable Credit Support
Percentage") is less than the Original Applicable Credit Support
Percentage for such Class, no distribution of Principal
Prepayments on the Mortgage Loans will be made to any such Classes
(the "Restricted Classes") and the amount of such Principal
Prepayments otherwise distributable to the Restricted Classes
shall be distributed to the Classes of Subordinated Certificates
having lower numerical Class designations than such Class, pro
rata, based on their respective Class Certificate Balances
immediately prior to such Distribution Date and shall be
distributed in the sequential order set forth in Section
4.02(a)(2). Notwithstanding the foregoing, the Class of
Subordinated Certificates then outstanding with the lowest
numerical class designation shall not be a Restricted Class.
(f) If the amount of a Realized Loss on a Mortgage Loan has
been reduced by application of Subsequent Recoveries with respect
to such Mortgage Loan, the amount of such Subsequent Recoveries
will be applied sequentially, in the order of payment priority, to
increase the Class Certificate Balance of each related Class of
Certificates to which Realized Losses have been allocated, but in
each case by not more than the amount of Realized Losses
previously
65
allocated to that Class of Certificates pursuant to Section 4.05.
Holders of such Certificates will not be entitled to any payment
in respect of the Class Optimal Interest Distribution Amount on
the amount of such increases for any Interest Accrual Period
preceding the Distribution Date on which such increase occurs. Any
such increases shall be applied to the Certificate Balance of each
Certificate, of such Class in accordance with its respective
Percentage Interest.
(g) [Reserved].
Section 4.03 [Reserved].
Section 4.04 [Reserved].
Section 4.05 Allocation of Realized Losses.
(a) On or prior to each Determination Date, the Trustee
shall determine the total amount of Realized Losses, including
Excess Losses, with respect to each related Distribution Date.
Realized Losses with respect to any Distribution Date shall be
allocated as follows:
(i) the applicable PO Percentage of any Realized Loss,
including any Excess Loss, shall be allocated to the Class PO
Certificates until their Class Certificate Balance is reduced to zero;
and
(ii) (A) the applicable Non-PO Percentage of any Realized Loss
(other than any Excess Loss) shall be allocated first to the
Subordinated Certificates in reverse order of their respective
numerical Class designations (beginning with the Class of Subordinated
Certificates then outstanding with the highest numerical Class
designation) until the respective Class Certificate Balance of each
such Class is reduced to zero, and second to the Classes of Senior
Certificates (other than any Notional Amount Certificates, if
applicable, and the Class PO Certificates), pro rata on the basis of
their respective Class Certificate Balances, in each case immediately
prior to the related Distribution Date, until the respective Class
Certificate Balance of each such Class is reduced to zero; except that
(i) up to the first $5,218,794 of Realized Losses (other than Excess
Losses) otherwise allocable to the Class A-1 Certificates will be
allocated to the Class A-2 Certificates and (ii) up to the first
$8,943,927 of Realized Losses (other than Excess Losses) otherwise
allocable to the Class A-3 Certificates will be allocated to the Class
A-2 Certificates, in each case, until the Class Certificate Balance of
the Class A-2 Certificates is reduced to zero; and
(B) the applicable Non-PO Percentage of any Excess Losses on
the Mortgage Loans shall be allocated to the Classes of Senior
Certificates (other than the Class PO Certificates and Notional Amount
Certificates) and the Classes of Subordinated Certificates then
outstanding, pro rata, on the basis of their respective Class
Certificate Balances, in each case immediately prior to such
Distribution Date and until the respective Class Certificate Balances
thereof have been reduced to zero.
(b) The Class Certificate Balance of the Class of
Subordinated Certificates then outstanding with the highest
numerical Class designation shall be reduced on each Distribution
Date by the sum of (i) the amount of any payments on the Class PO
Certificates in respect of Class PO Deferred Amounts and (ii) the
amount, if any, by which the aggregate Class Certificate Balance
of all outstanding Classes of Certificates (after giving effect to
the distribution of principal and the allocation of Realized
Losses and Class PO Deferred Amounts on such
66
Distribution Date) exceeds the aggregate Stated Principal Balance
of the Mortgage Loans for the following Distribution Date.
(c) Any Realized Loss allocated to a Class of Certificates
or any reduction in the Class Certificate Balance of a Class of
Certificates pursuant to Section 4.05(b) shall be allocated among
the Certificates of such Class in proportion to their respective
Certificate Balances.
(d) Any allocation of Realized Losses to a Certificate or
any reduction in the Certificate Balance of a Certificate pursuant
to Section 4.05(b) shall be accomplished by reducing the
Certificate Balance thereof immediately following the
distributions made on the related Distribution Date in accordance
with the definition of Certificate Balance.
Section 4.06 Monthly Statements to Certificateholders.
(a) Not later than each Distribution Date, the Trustee shall
prepare and make available on its website at
▇▇▇▇▇://▇▇▇.▇▇▇.▇▇.▇▇▇/▇▇▇▇ to each Certificateholder, the
Servicer and the Depositor a statement for the related
distribution of:
(i) the applicable Record Dates, Interest Accrual Periods and
Determination Dates for calculating distributions for the Distribution Date;
(ii) the amount of funds received from the Servicer for the
Distribution Date separately identifying amounts received in respect of the
Mortgage Loans and the amount of Advances included in the distribution on the
Distribution Date;
(iii) the Servicing Fee and the amounts of any additional servicing
compensation received by the Servicer attributable to penalties, fees, Excess
Proceeds or other similar charges or fees and items with respect to the
Distribution Date, and, with respect to Lender PMI Loans, the interest premium
charged the related borrower for primary mortgage guaranty insurance;
(iv) the Trustee Fee for the Distribution Date;
(v) the aggregate amount of expenses paid from amounts on deposit in
the Distribution Account;
(vi) the aggregate amount on deposit in the Distribution Account and
Supplemental Interest Reserve Fund, as of the beginning and end of the related
Due Period;
(vii) the amount of the distribution allocable to principal,
separately identifying the aggregate amount of any Principal Prepayments and
Liquidation Proceeds included therein;
(viii) the amount of the distribution allocable to interest, any
Class Unpaid Interest Amounts included in the distribution and any remaining
Class Unpaid Interest Amounts after giving effect to the distribution;
(ix) if the distribution to the Holders of any Class of Certificates
is less than the full amount that would be distributable to them if sufficient
funds were available, the amount of the shortfall and the allocation of the
shortfall between principal and interest;
67
(x) the aggregate amount of Realized Losses incurred and Subsequent
Recoveries, if any, received during the preceding calendar month and aggregate
Realized Losses through the Distribution Date;
(xi) the Class Certificate Balance or Notional Amount of each Class
of Certificates before and after giving effect to the distribution of
principal on the Distribution Date;
(xii) the Pass-Through Rate for each Class of Certificates with
respect to the Distribution Date;
(xiii) the LIBOR rate applicable for that Distribution Date;
(xiv) the number of Mortgage Loans and the aggregate Stated Principal
Balance of the Mortgage Loans as the first day of the related Due Period and
the last day of the related Due Period;
(xv) as of the last day of the related Due Period:
(A) the weighted average Mortgage Rate of the Mortgage Loans,
and
(B) the weighted average remaining term to maturity of the
Mortgage Loans;
(xvi) the number and aggregate outstanding Stated Principal Balance
of the Mortgage Loans as of the end of the preceding calendar month:
(A) delinquent (exclusive of Mortgage Loans in foreclosure) (1)
30 to 59 days, (2) 60 to 89 days and (3) 90 or more days and
(B) in foreclosure and delinquent (1) 30 to 59 days, (2) 60 to
89 days and (3) 90 or more days,
in each case as of the close of business on the last day of the
calendar month preceding the Distribution Date;
(xvii) for each of the preceding 12 calendar months, or all calendar
months since the Cut-off Date, whichever is less, the aggregate dollar amount
of the Scheduled Payments (A) due on all Outstanding Mortgage Loans on the Due
Date in each such month and (B) delinquent sixty (60) days or more on the Due
Date in each such month;
(xviii) 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;
(xix) 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;
(xx) the aggregate amount of Principal Prepayments received during
the related Prepayment Period and the number of Mortgage Loans subject to such
Principal Prepayments;
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(xxi) 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;
(xxii) the aggregate amount of Advances reimbursed during the related
Due Period, the general source of funds for such reimbursements and the
aggregate amount of Advances outstanding as of the close of business on the
Distribution Date;
(xxiii) the aggregate amount of Servicing Advances reimbursed during
the related Due Period, the general source of funds for such reimbursements
and the aggregate amount of Servicing Advances outstanding as of the close of
business on the Distribution Date;
(xxiv) the aggregate number and outstanding Stated Principal Balance
of Mortgage Loans repurchased during the related Due Period due to material
breaches of representations and warranties regarding such Mortgage Loans;
(xxv) the Senior Prepayment Percentage and Subordinated Prepayment
Percentage for the Distribution Date;
(xxvi) the Senior Percentage and Subordinated Percentage for the
Distribution Date;
(xxvii) the Special Hazard Loss Coverage Amount, the Fraud Loss
Coverage Amount and the Bankruptcy Loss Coverage Amount, in each case as of
the related Determination Date;
(xxviii) with respect to the second Distribution Date, the number and
aggregate balance of any Delayed Delivery Mortgage Loans not delivered within
the time periods specified in the definition of Delayed Delivery Mortgage
Loans;
(xxix) Prepayment Charges collected, waived, and paid by the
Servicer;
(xxx) the aggregate Stated Principal Balance of the Mortgage Loans
that became Liquidated Mortgage Loans in the prior month and since the Cut-off
Date (in each case immediately prior to the Stated Principal Balance being
reduced to zero);
(xxxi) the amount of any payments made by the Cap Counterparty to the
Trust Fund under the Corridor Contract;
(xxxii) the Stated Principal Balance of any Mortgage Loan that has
been repurchased by the Servicer in accordance with Section 2.02, 2.03 or
3.12; and
(xxxiii) the Stated Principal Balance of any Substitute Mortgage Loan
provided by the Seller and the Stated Principal Balance of any Mortgage Loan
that has been replaced by a Substitute Mortgage Loan in accordance with
Section ▇.▇▇.▇▇ each Determination Date the Servicer shall provide to the
Trustee in electronic form the information needed to determine the
distributions to be made pursuant to Section 4.02 and any other information on
which the Servicer and the Trustee mutually agree.
The Trustee's responsibility for disbursing the above
information to the Certificateholders is limited to the availability, timeliness
and accuracy of the information derived from the Servicer.
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(b) On or before the fifth Business Day following the end of
each Prepayment Period (but in no event later than the third
Business Day prior to the related Distribution Date), the Servicer
shall deliver to the Trustee (which delivery may be by electronic
data transmission) a report in substantially the form set forth as
Schedule V.
(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)(v) and (a)(vi) of this Section 4.06
aggregated for such calendar year or applicable portion thereof
during which such Person was a Certificateholder. Such obligation
of the Trustee shall be deemed to have been satisfied to the
extent that substantially comparable information shall be provided
by the Trustee pursuant to any requirements of the Code as from
time to time in effect.
Section 4.07 [Reserved].
Section 4.08 Distributions from the Supplemental Interest Reserve
Fund.
(a) On each Distribution Date on or prior to the earlier of
(i) the Termination Date and (ii) the date on which the Class
Certificate Balance of the Class A-3 Certificates is reduced to
zero, amounts on deposit in the Supplemental Interest Reserve Fund
from the Corridor Contract will be withdrawn therefrom and
distributed to the Class A-3 Certificates to the extent needed to
pay the related Yield Supplement Amount for such Distribution Date
and any Yield Supplement Amount remaining unpaid from prior
Distribution Dates. Any remaining amounts related to the Class A-3
Corridor Contract will remain in the Supplemental Interest Reserve
Fund for future distributions to the Class A-3 Certificates.
(b) On the Distribution Date immediately following the
earlier of (i) the Termination Date and (ii) the date on which the
Class Certificate Balance of the Class A-3 Certificates has been
reduced to zero, all amounts remaining in the Supplemental
Interest Reserve Fund will be distributed to HSBC Securities (USA)
Inc.
Section 4.09 Determination of Pass-Through Rates for LIBOR
Certificates.
On each LIBOR Determination Date so long as the LIBOR Certificates are
outstanding, the Trustee will determine LIBOR on the basis of the British
Bankers' Association ("BBA") "Interest Settlement Rate" for one-month deposits
in U.S. dollars as found on Moneyline Telerate Page 3750 as of 11:00 a.m. London
time on each LIBOR Determination Date.
(a) If LIBOR cannot be determined as provided in the first
paragraph of this Section 4.09, 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.
(b) LIBOR for the next Interest Accrual Period for a Class
of LIBOR Certificates will be established by the Trustee on each
LIBOR Determination Date as follows:
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(i) If on any LIBOR Determination Date two or more Reference Banks
provide such offered quotations, LIBOR for the next Interest Accrual Period
for a Class of LIBOR Certificates 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 Interest
Accrual Period for a Class of LIBOR Certificates 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 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 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 related Interest Accrual Period shall be determined by the Trustee on
each LIBOR Determination Date so long as the LIBOR Certificates are
outstanding on the basis of LIBOR and the respective formulae appearing in
footnotes corresponding to the LIBOR Certificates in the table relating to the
Certificates in the Preliminary Statement.
(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 of determining any Reserve Interest Rate or
(ii) its inability, following a good-faith reasonable effort, to obtain such
71
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 4.09.
(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.
(g) The Pass-Through Rate for the Interest Accrual Period for the
first Distribution Date for each Class of LIBOR Certificates is set forth in
the applicable footnote under the heading "Master REMIC" in the Preliminary
Statement.
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ARTICLE FIVE
THE CERTIFICATES
Section 5.01 The Certificates.
The Certificates shall be substantially in the forms attached hereto as
exhibits. The Certificates shall be issuable in registered form, in the minimum
denominations, integral multiples of $1,000 in excess thereof (except that one
Certificate in each Class may be issued in a different amount which must exceed
the applicable minimum denomination) and aggregate denominations per Class set
forth in the Preliminary Statement.
Subject to Section 9.02 respecting the final distribution on the
Certificates, on each Distribution Date the Trustee shall make distributions to
each Certificateholder of record on the preceding Record Date either (x) by wire
transfer in immediately available funds to the account of such holder at a bank
or other entity having appropriate facilities therefor, if such Holder has so
notified the Trustee at least five Business Days before the related Record Date
or (y) by check mailed by first class mail to such Certificateholder at the
address of such holder appearing in the Certificate Register.
The Trustee shall execute the Certificates by the manual or facsimile
signature of an authorized officer. Certificates bearing the manual or facsimile
signatures of individuals who were, at the time such signatures were affixed,
authorized to sign on behalf of the Trustee shall bind the Trustee,
notwithstanding that such individuals or any of them have ceased to be so
authorized before the countersignature and delivery of any such Certificates or
did not hold such offices at the date of such Certificate. No Certificate shall
be entitled to any benefit under this Agreement, or be valid for any purpose,
unless countersigned by the Trustee by manual signature, and such
countersignature upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly executed and delivered hereunder.
All Certificates shall be dated the date of their countersignature. On the
Closing Date, the Trustee shall countersign the Certificates to be issued at the
direction of the Depositor, or any affiliate thereof.
The Depositor shall provide the Trustee, on a continuous basis with an
adequate inventory of Certificates to facilitate transfers.
Section 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates.
(a) The Trustee shall maintain, in accordance with Section
5.06, a Certificate Register for the Trust Fund in which, subject
to subsections (b) and (c) below and to such reasonable
regulations as it may prescribe, the Trustee shall provide for the
registration of Certificates and of transfers and exchanges of
Certificates as herein provided. Upon surrender for registration
of transfer of any Certificate, the Trustee shall execute and
deliver, in the name of the designated transferee or transferees,
one or more new Certificates of the same Class and aggregate
Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged for
other Certificates of the same Class in authorized denominations and evidencing
the same aggregate Percentage Interest upon surrender of the Certificates to be
exchanged at the office or agency of the Trustee. Whenever any Certificates are
so surrendered for exchange, the Trustee shall execute, authenticate, and
deliver the Certificates that the Certificateholder making the exchange is
entitled to receive. A written instrument of transfer in form satisfactory to
the Trustee duly
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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 Servicer shall cooperate with the Depositor in providing the
Rule 144A information referenced in the preceding sentence,
including providing to the Depositor such information regarding
the Certificates, the Mortgage Loans, and other matters regarding
the Trust Fund as the Depositor reasonably requests to meet its
obligation under the preceding sentence. Each Holder of a Private
Certificate desiring to effect a transfer shall, and does hereby
agree to, indemnify the Trustee, the Depositor, the Seller, and
the Servicer against any liability that may result if the transfer
is not so exempt or is not made in accordance with such federal
and state laws.
No transfer of an ERISA-Restricted Certificate shall be made unless the
Trustee shall have received either (i) a representation from the transferee of
such Certificate acceptable to and in form and substance satisfactory to the
Trustee (if the Certificate is a Private Certificate, the requirement is
satisfied only by the Trustee's receipt of a representation letter from the
transferee substantially in the form of Exhibit K or Exhibit L, and if the
Certificate is a Residual Certificate, the requirement is satisfied only by the
Trustee's receipt of a representation letter from the transferee substantially
in the form of Exhibit I), to the effect that (x) the transferee is not an
employee benefit plan or arrangement subject to section 406 of ERISA or a plan
subject to section 4975 of the Code, or a person acting on behalf of any such
plan or arrangement or using the assets of any such plan or arrangement to
effect the transfer (the "Plan"), or (y) if the ERISA-Restricted Certificate has
been the subject of an ERISA-Qualifying Underwriting, a representation that the
transferee is an insurance company that is purchasing such Certificate with
funds contained in an "insurance company general account" (as such term is
defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE
95-60") and that the purchase and holding of such Certificate satisfy the
requirements for exemptive relief under Sections I and III of PTCE 95-60, or
(ii) in the case of any ERISA-Restricted Certificate presented for registration
in the name of an employee benefit plan subject to ERISA, or a plan or
arrangement subject to section 4975 of the Code (or comparable provisions of any
subsequent enactments), or a trustee of any such plan or any other person
74
acting on behalf of any such plan or arrangement or using such plan's or
arrangement's assets, an Opinion of Counsel satisfactory to the Trustee, which
Opinion of Counsel shall not be an expense of the Trustee, the Servicer or the
Trust Fund, addressed to the Trustee and the Servicer, to the effect that the
purchase and holding of such ERISA-Restricted Certificate will not result in a
non-exempt prohibited transaction under ERISA or section 4975 of the Code and
will not subject the Trustee or the Servicer to any obligation in addition to
those expressly undertaken in this Agreement or to any liability. For purposes
of the preceding sentence, with respect to an ERISA-Restricted Certificate
that is not a Residual Certificate, if the appropriate representation letter
or Opinion of Counsel referred to in the preceding sentence is not furnished,
the representation in clause (i) above shall be deemed to have been made to
the Trustee by the transferee's (including an initial acquirer's) acceptance
of the ERISA-Restricted Certificates. If the representation is violated, or
any attempt is made to transfer to a plan or arrangement subject to section
406 of ERISA or a plan subject to section 4975 of the Code, or a person acting
on behalf of any such plan or arrangement or using the assets of any such plan
or arrangement, without the Opinion of Counsel described above, the attempted
transfer or acquisition shall be void.
So long as the Corridor Contract is in effect, no transfer of a Class
A-3 Certificate (other than a transfer to an affiliate of the Depositor (either
directly or through a nominee) in connection with the initial issuance of the
Certificates) shall be made unless the Trustee shall have received a
representation letter from the transferee of the Class A-3 Certificate to the
effect that (i) such transferee is not a Plan, (ii) the purchase and holding of
the Class A-3 Certificate satisfies the requirements for exemptive relief under
▇▇▇▇ ▇▇-▇▇, ▇▇▇▇ ▇▇-▇, ▇▇▇▇ ▇▇-▇▇, ▇▇▇▇ ▇▇-▇▇, ▇▇▇▇ 96-23 or a similar
exemption, or (iii) the service provider exemption provided under Section
408(b)(17) of ERISA and Section 4975(d)(20) of the Code. In the event that such
representation letter is not delivered, one of the foregoing representations, as
appropriate, shall be deemed to have been made by the transferee's (including an
initial acquiror's) acceptance of the Class A-3 Certificate. In the event that
such representation is violated, such transfer or acquisition shall be void and
of no effect.
No transfer of an Offered Certificate shall be made unless the
transferee of such Certificate has provided to the Trustee a correct, complete
and duly executed tax certification form (i.e., U.S. Internal Revenue Service
Form ▇-▇, ▇-▇▇▇▇, ▇-▇▇▇▇, ▇-▇▇▇▇ or W-8ECI, as applicable (or any successor
form thereto), together with appropriate attachments) as a condition to such
transfer and agrees to update such tax certification form (i) upon expiration
of any such tax certification form, (ii) as required under then applicable
U.S. Treasury regulations and (iii) promptly upon learning that any tax
certification form previously provided has become obsolete or incorrect. Upon
receipt of any such tax certification form from a transferee of any Offered
Certificate, the Trustee shall provide such tax certification form to the
Supplemental Interest Trustee. The Supplemental Interest Trustee shall provide
such tax certification form to the Cap Counterparty, as applicable. Each
Holder of an Offered Certificate and each transferee thereof shall be deemed
to have consented to the Trustee and the Supplemental Interest Trustee
forwarding to the Cap Counterparty any such tax certification form it has
provided and updated in accordance with these transfer restrictions. Any
purported sales or transfers of any Offered Certificate to a transferee which
does not comply with these requirements shall be deemed null and void under
this Agreement.
The Supplemental Interest Trustee and the Trustee shall not be liable
for the content or truthfulness of any such tax certification provided to it.
The Supplemental Interest Trustee and the Trustee shall only be required to
forward any tax certification received by it to the Cap Counterparty at the
last known address provided to it, and shall not be liable for the receipt of
such tax certification by the Cap Counterparty, nor any failure of the Cap
Counterparty to process such certification or to take any action as required
under the respective Cap Contract or under applicable law. The Supplemental
Interest Trustee and the Trustee shall have no duty to take action to correct
any misstatement or omission in any tax certification provided to it and
forwarded to the Cap Counterparty.
To the extent permitted under applicable law (including ERISA), the
Trustee shall be under no liability to any Person for any registration of
transfer of any ERISA-Restricted Certificate that is in fact not permitted by
this Section 5.02(b) or for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such Holder under this
Agreement so long as the transfer was registered by the Trustee in accordance
with the foregoing requirements.
(c) Each Person who has or who acquires any Ownership
Interest in a Residual Certificate shall be deemed by the
acceptance or acquisition of such Ownership Interest to have
agreed to be bound by the following provisions, and the rights of
each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest
in a Residual Certificate shall be a Permitted Transferee and
shall promptly notify the Trustee of any change or impending
change in its status as a Permitted Transferee.
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the
Trustee shall not register the Transfer of any Residual
Certificate unless, in addition to the certificates required to be
delivered to the Trustee under subparagraph (b) above, the Trustee
shall have been furnished with an affidavit (a "Transfer
Affidavit") of the initial owner or the proposed transferee in the
form of Exhibit I.
(iii) Each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall agree (A) to obtain a
Transfer Affidavit from any other Person to whom such Person
attempts to Transfer its Ownership Interest in a Residual
Certificate, (B) to obtain a
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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 Servicer, to the effect that the elimination of such restrictions will not
cause any REMIC created under this Agreement to fail to qualify as a REMIC at
any time that the Certificates are outstanding or result in the imposition of
any tax on the Trust Fund, a Certificateholder or another Person. Each Person
holding or acquiring any Ownership Interest in a Residual Certificate hereby
consents to any amendment of this Agreement which, based on an Opinion of
Counsel furnished to the Trustee, is reasonably necessary (a) to ensure that the
record ownership of, or any beneficial interest in, a Residual Certificate is
not transferred, directly or indirectly, to a Person that is not a Permitted
Transferee and (b) to provide for a means to compel the Transfer of a Residual
Certificate which is held by a Person that is not a Permitted Transferee to a
Holder that is a Permitted Transferee.
(d) The preparation and delivery of all certificates and
opinions referred to above in this Section 5.02 in connection with
transfer shall be at the expense of the parties to such transfers.
(e) Except as provided below, the Book-Entry Certificates
shall at all times remain registered in the name of the Depository
or its nominee and at all times: (i) registration of the
Certificates may not be transferred by the Trustee except to
another Depository; (ii) the Depository shall maintain book-entry
records with respect to the Certificate Owners and with respect to
ownership and transfers of such Book-Entry Certificates; (iii)
ownership and transfers of registration of the Book-Entry
Certificates on the books of the Depository shall be governed
76
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 or (y) after the occurrence of an Event
of Default, Certificate Owners representing at least 51% of the Certificate
Balance of the Book-Entry Certificates together advise the Trustee and the
Depository through the Depository Participants in writing that the continuation
of a book-entry system through the Depository is no longer in the best interests
of the Certificate Owners, the Trustee shall notify all Certificate Owners,
through the Depository, of the occurrence of any such event and of the
availability of definitive, fully-registered Certificates (the "Definitive
Certificates") to Certificate Owners requesting the same. Upon surrender to the
Trustee of the related Class of Certificates by the Depository, accompanied by
the instructions from the Depository for registration, the Trustee shall issue
the Definitive Certificates. Neither the Servicer, the Depositor nor the Trustee
shall be liable for any delay in delivery of such instruction and each may
conclusively rely on, and shall be protected in relying on, such instructions.
The Servicer shall provide the Trustee with an adequate inventory of
certificates to facilitate the issuance and transfer of Definitive Certificates.
Upon the issuance of Definitive Certificates all references herein to
obligations imposed upon or to be performed by the Depository shall be deemed to
be imposed upon and performed by the Trustee, to the extent applicable with
respect to such Definitive Certificates and the Trustee shall recognize the
Holders of the Definitive Certificates as Certificateholders hereunder; provided
that the Trustee shall not by virtue of its assumption of such obligations
become liable to any party for any act or failure to act of the Depository.
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Trustee, or (b)
the Trustee receives evidence to its satisfaction of the destruction, loss, or
theft of any Certificate and the Servicer and the Trustee receive the security
or indemnity required by them to hold each of them harmless, then, in the
absence of notice to the Trustee that the Certificate has been acquired by a
Protected Purchaser, and if the requirements of Section 8-406 of the UCC are met
and subject to Section 8-405 of the UCC, the Trustee shall execute, countersign,
and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost,
or stolen Certificate, a new Certificate of like Class, tenor, and Percentage
Interest. In connection with the issuance of any new Certificate under this
Section 5.03, the Trustee may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Trustee) connected
therewith. Any replacement Certificate issued pursuant to this Section 5.03
shall constitute complete and indefeasible evidence of
77
ownership, as if originally issued, whether or not the lost, stolen, or
destroyed Certificate is found at any time.
Section 5.04 Persons Deemed Owners.
The Servicer, the Trustee, and any agent of the Servicer or the Trustee
may treat the Person in whose name any Certificate is registered as the owner of
such Certificate for the purpose of receiving distributions as provided in this
Agreement and for all other purposes whatsoever, and neither the Servicer, the
Trustee nor any agent of the Servicer or the Trustee shall be affected by any
notice to the contrary.
Section 5.05 Access to List of Certificateholders' Names and
Addresses.
If three or more Certificateholders and/or Certificate Owners (a)
request such information in writing from the Trustee, (b) state that such
Certificateholders and/or Certificate Owners desire to communicate with other
Certificateholders and/or Certificate Owners with respect to their rights under
this Agreement or under the Certificates, and (c) provide a copy of the
communication which such Certificateholders and/or Certificate Owners propose to
transmit, or if the Depositor or Servicer shall request such information in
writing from the Trustee, then the Trustee shall, within ten Business Days after
the receipt of such request, provide the Depositor, the Servicer or such
Certificateholders and/or Certificate Owners at such recipients' expense the
most recent list of the Certificateholders of such Trust Fund held by the
Trustee. The Depositor and every Certificateholder and/or Certificate Owner, by
receiving and holding a Certificate, agree that the Trustee shall not be held
accountable because of the disclosure of any such information as to the list of
the Certificateholders hereunder, regardless of the source from which such
information was derived.
Section 5.06 Maintenance of Office or Agency.
The Trustee will maintain at its expense an office or offices or agency
or agencies in the United States located at DB Services Tennessee, ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Attention: Transfer Unit., where Certificates
may be surrendered for registration of transfer or exchange. The Trustee will
give prompt written notice to the Certificateholders of any change in such
location of any such office or agency.
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ARTICLE SIX
THE DEPOSITOR AND THE SERVICER
Section 6.01 Respective Liabilities of the Depositor and the
Servicer.
The Depositor and the Servicer shall each be liable in accordance with
this Agreement only to the extent of the obligations specifically and
respectively imposed upon and undertaken by them in this Agreement.
Section 6.02 Merger or Consolidation of the Depositor or the
Servicer.
The Depositor and the Servicer will each keep in full effect their
existence and their rights and franchises as a corporation and a federal savings
bank, respectively, under the laws of the United States or under the laws of one
of the states thereof and will each obtain and preserve its qualification to do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its respective duties under this Agreement.
Any Person into which the Depositor or the Servicer may be merged or
consolidated, or any Person resulting from any merger or consolidation to which
the Depositor or the Servicer shall be a party, or any person succeeding to the
business of the Depositor or the Servicer, shall be the successor of the
Depositor or the Servicer, as the case may be, hereunder, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding; provided, however, that
the successor or surviving Person to the Servicer shall be qualified to sell
mortgage loans to, and to service mortgage loans on behalf of, FNMA or FHLMC.
As a condition to the effectiveness of any merger or consolidation, at
least 15 calendar days prior to the effective date of any merger or
consolidation of the Servicer, the Servicer shall provide (x) written notice to
the Depositor of any successor pursuant to this Section and (y) in writing and
in form and substance reasonably satisfactory to the Depositor, all information
reasonably requested by the Depositor in order to comply with its reporting
obligation under Item 6.02 of Form 8-K with respect to a replacement Servicer.
Section 6.03 Limitation on Liability of the Depositor, the Seller,
the Servicer, and Others.
None of the Depositor, the Seller, the Servicer or any of the
directors, officers, employees or agents of the Depositor, the Seller or the
Servicer shall be under any liability to the Certificateholders for any action
taken or for refraining from the taking of any action in good faith pursuant to
this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Depositor, the Seller, the Servicer or any such
Person against any breach of representations or warranties made by it herein or
protect the Depositor, the Seller, the Servicer or any such Person from any
liability which would otherwise be imposed by reasons of willful misfeasance,
bad faith or gross negligence in the performance of duties or because of
reckless disregard of obligations and duties hereunder. The Depositor, the
Seller, the Servicer, and any director, officer, employee or agent of the
Depositor, the Seller or the Servicer may rely in good faith on any document of
any kind prima facie properly executed and submitted by any Person respecting
any matters arising hereunder. The Depositor, the Seller, the Servicer, and any
director, officer, employee or agent of the Depositor, the Seller or the
Servicer shall be indemnified by the Trust Fund and held harmless against any
loss, liability or expense incurred in connection with any audit, controversy or
judicial proceeding relating to a governmental taxing authority or any legal
action relating to this Agreement or the Certificates, other than any loss,
liability or expense related to any specific
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Mortgage Loan or Mortgage Loans (except as any such loss, liability or expense
shall be otherwise reimbursable pursuant to this Agreement) and any loss,
liability or expense incurred because of willful misfeasance, bad faith or
gross negligence in the performance of duties hereunder or because of reckless
disregard of obligations and duties hereunder. None of the Depositor, the
Seller or the Servicer shall be under any obligation to appear in, prosecute
or defend any legal action that is not incidental to its respective duties
hereunder and which in its opinion may involve it in any expense or liability;
provided, however, that any of the Depositor, the Seller or the Servicer may
in its discretion undertake any such action that it may deem appropriate in
respect of this Agreement and the rights and duties of the parties hereto and
interests of the Trustee and the Certificateholders hereunder. In such event,
the legal expenses and costs of such action and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust Fund, and the
Depositor, the Seller, and the Servicer shall be entitled to be reimbursed
therefor out of the Certificate Account.
Section 6.04 Limitation on Resignation of the Servicer.
The Servicer shall not resign from the obligations and duties hereby
imposed on it except (a) upon appointment of a successor servicer and receipt by
the Trustee of a letter from each Rating Agency that such a resignation and
appointment will not result in a downgrading, qualification or withdrawal of the
rating of any of the Certificates or (b) upon determination that its duties
under this Agreement are no longer permissible under applicable law. Any such
determination under clause (b) permitting the resignation of the Servicer shall
be evidenced by an Opinion of Counsel to such effect delivered to the Trustee.
No such resignation shall become effective until the Trustee or a successor
servicer shall have assumed the Servicer's responsibilities, duties, liabilities
and obligations under this Agreement and the Depositor shall have received the
information described in the following sentence. As a condition to the
effectiveness of any such resignation, at least 15 calendar days prior to the
effective date of such resignation, the Servicer shall provide (x) written
notice to the Depositor of any successor pursuant to this Section and (y) in
writing and in form and substance reasonably satisfactory to the Depositor, all
information reasonably requested by the Depositor in order to comply with its
reporting obligation under Item 6.02 of Form 8-K with respect to the resignation
of the Servicer.
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ARTICLE SEVEN
DEFAULT
Section 7.01 Events of Default.
"Event of Default," wherever used in this Agreement, means any one of
the following events:
(a) any failure by the Servicer to deposit in the
Certificate Account or remit to the Trustee any payment required
to be made by it under this Agreement, which failure continues
unremedied for five days after the date on which written notice of
the failure has been given to the Servicer by the Trustee or the
Depositor or to the Servicer and the Trustee by the Holders of
Certificates of any Class evidencing not less than 25% of the
aggregate Percentage Interests of the Class; or
(b) any failure by the Servicer to observe or perform in any
material respect any other of the covenants or agreements on the
part of the Servicer contained in this Agreement (except with
respect to a failure related to a Limited Exchange Act Reporting
Obligation), which failure materially affects the rights of
Certificateholders and continues unremedied for a period of 60
days after the date on which written notice of such failure shall
have been given to the Servicer by the Trustee or the Depositor,
or to the Servicer and the Trustee by the Holders of Certificates
of any Class evidencing not less than 25% of the Percentage
Interests of the Class; provided that the sixty-day cure period
shall not apply to the initial delivery of the Mortgage File for
Delay Delivery Mortgage Loans nor the failure to repurchase or
substitute in lieu thereof; or
(c) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises for the appointment
of a receiver, conservator or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Servicer and such
decree or order shall have remained in force undischarged or
unstayed for a period of 60 consecutive days; or
(d) the Servicer shall consent to the appointment of a
receiver, conservator or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or
similar proceedings of or relating to the Servicer or all or
substantially all of the property of the Servicer; or
(e) the Servicer shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take
advantage of, or commence a voluntary case under, any applicable
insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its
obligations; or
(f) the Servicer shall fail (i) to make an Advance on the
Servicer Advance Date or (ii) to reimburse in full the Trustee
within two days of the Servicer Advance Date for any Advance made
by the Trustee pursuant to Section 4.01(b).
If an Event of Default described in clauses (a) through (f) of this
Section 7.01 occurs, then, and in each and every such case, so long as such
Event of Default shall not have been remedied, the Trustee may, or at the
direction of the Holders of Certificates of any Class evidencing not less than
66 2/3% of the Percentage Interests of the Class, the Trustee shall by notice in
writing to the Servicer (with a copy to each Rating Agency), terminate all of
the rights and obligations of the Servicer under this Agreement and
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in the Mortgage Loans and the proceeds thereof, other than its rights as a
Certificateholder hereunder. In addition, if during the period that the
Depositor is required to file Exchange Act Reports with respect to the Trust
Fund, the Servicer shall fail to observe or perform any of the obligations
that constitute a Limited Exchange Act Reporting Obligation or the obligations
set forth in Section 3.17(a) or Section 11.07(a)(i) and (ii), and such failure
continues for the lesser of 10 calendar days or such period in which the
applicable Exchange Act Report can be filed timely (without taking into
account any extensions), so long as such failure shall not have been remedied,
the Trustee shall, but only at the direction of the Depositor, terminate all
of the rights and obligations of the Servicer under this Agreement and in and
to the Mortgage Loans and the proceeds thereof, other than its rights as a
Certificateholder hereunder. The Depositor shall not be entitled to terminate
the rights and obligations of the Servicer if a failure of the Servicer to
identify a Subcontractor "participating in the servicing function" within the
meaning of Item 1122 of Regulation AB was attributable solely to the role or
functions of such Subcontractor with respect to mortgage loans other than the
Mortgage Loans.
On and after the receipt by the Servicer of such written notice, all
authority and power of the Servicer hereunder, whether with respect to the
Mortgage Loans or otherwise, shall pass to and be vested in the Trustee. The
Trustee shall make any Advance that the Servicer failed to make subject to
Section 3.05, whether or not the obligations of the Servicer have been
terminated pursuant to this Section. The Trustee is hereby authorized and
empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact
or otherwise, any documents and other instruments, and to do or accomplish all
other acts or things necessary or appropriate to effect the purposes of such
notice of termination, whether to complete the transfer and endorsement or
assignment of the Mortgage Loans and related documents, or otherwise. Unless
expressly provided in such written notice, no such termination shall affect any
obligation of the Servicer to pay amounts owed pursuant to Article VIII. The
Servicer agrees to cooperate with the Trustee in effecting the termination of
the Servicer's responsibilities and rights hereunder, including the transfer to
the Trustee of all cash amounts which shall at the time be credited to the
Certificate Account, or thereafter be received with respect to the Mortgage
Loans. If the Servicer fails to make any Advance required under Section 4.01 of
this Agreement, thereby triggering an Event of Default described in clause (f)
of this Section 7.01, the Trustee shall make such Advance on that Distribution
Date.
Notwithstanding any termination of the activities of the Servicer under
this Agreement, the Servicer shall be entitled to receive, out of any late
collection of a Scheduled Payment on a Mortgage Loan which was due before the
notice terminating such Servicer's rights and obligations as Servicer hereunder
and received after such notice, that portion thereof to which such Servicer
would have been entitled pursuant to Sections 3.09(a)(i) through (viii), and any
other amounts payable to such Servicer hereunder the entitlement to which arose
before the termination of its activities hereunder.
If the Servicer is terminated, the Trustee shall provide the Depositor
in writing and in form and substance reasonably satisfactory to the Depositor,
all information reasonably requested by the Depositor in order to comply with
its reporting obligation under Item 6.02 of Form 8-K with respect to a successor
servicer in the event the Trustee should succeed to the duties of the Servicer
as set forth herein.
Section 7.02 Trustee to Act; Appointment of Successor.
On and after the time the Servicer receives a notice of termination
pursuant to Section 7.01, the Trustee shall, subject to and to the extent
provided in Section 3.05, be the successor to the Servicer in its capacity as
Servicer under this Agreement and the transactions set forth or provided for
herein and shall be subject to all the responsibilities, duties and liabilities
relating thereto placed on the Servicer by the terms hereof and applicable law
including the obligation to make Advances pursuant to Section 4.01. As
compensation therefor, the Trustee shall be entitled to all funds relating to
the Mortgage Loans that the
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Servicer would have been entitled to charge to the Certificate Account or
Distribution Account if the Servicer had continued to act hereunder,
including, if the Servicer was receiving the Servicing Fee, the Servicing Fee.
Notwithstanding the foregoing, if the Trustee has become the successor to the
Servicer in accordance with Section 7.01, the Trustee may, if it shall be
unwilling to so act, or shall, if it is prohibited by applicable law from
making Advances pursuant to Section 4.01 or if it is otherwise unable to so
act, appoint, or petition a court of competent jurisdiction to appoint, any
established mortgage loan servicing institution the appointment of which does
not adversely affect the then current rating of the Certificates by each
Rating Agency, as the successor to the Servicer hereunder in the assumption of
all or any part of the responsibilities, duties or liabilities of the Servicer
hereunder. Any successor to the Servicer shall be an institution which is a
FNMA and FHLMC approved seller/servicer in good standing, which has a net
worth of at least $15,000,000, which is willing to service the Mortgage Loans
and which executes and delivers to the Depositor and the Trustee an agreement
accepting such delegation and assignment, containing an assumption by such
Person of the rights, powers, duties, responsibilities, obligations and
liabilities of the Servicer (other than liabilities of the Servicer under
Section 6.03 incurred before termination of the Servicer under Section 7.01),
with like effect as if originally named as a party to this Agreement; provided
that each Rating Agency acknowledges that its rating of the Certificates in
effect immediately before such assignment and delegation will not be qualified
or reduced as a result of such assignment and delegation. Pending appointment
of a successor to the Servicer hereunder, the Trustee shall act in such
capacity as provided above, subject to section 3.03 and unless prohibited by
law. In connection with such appointment and assumption, the Trustee may make
such arrangements for the compensation of such successor out of payments on
Mortgage Loans as it and such successor shall agree; provided, however, that
in no case shall the rate of such compensation exceed the Servicing Fee Rate.
The Trustee and such successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession. Neither
the Trustee nor any other successor servicer shall be deemed to be in default
hereunder because of any failure to make, or any delay in making, any
distribution hereunder or any portion thereof or any failure to perform, or
any delay in performing, any duties or responsibilities hereunder, in either
case caused by the failure of the Servicer to deliver or provide, or any delay
in delivering or providing, any cash, information, documents or records to it.
In connection with the termination or resignation of the Servicer
hereunder, either (i) the successor Servicer, including the Trustee if the
Trustee is acting as successor Servicer, shall represent and warrant that it is
a member of MERS in good standing and shall agree to comply in all material
respects with the rules and procedures of MERS in connection with the servicing
of the Mortgage Loans that are registered with MERS, or (ii) the predecessor
Servicer shall cooperate with the successor Servicer either (x) in causing MERS
to execute and deliver an assignment of Mortgage in recordable form to transfer
the Mortgage from MERS to the Trustee and to execute and deliver such other
notices, documents and other instruments as may be necessary or desirable to
effect a transfer of such Mortgage Loan or servicing of such Mortgage Loan on
the MERS(R) System to the successor Servicer or (y) in causing MERS to designate
on the MERS(R) System the successor Servicer as the servicer of such Mortgage
Loan. The predecessor Servicer shall file or cause to be filed any such
assignment in the appropriate recording office. The successor Servicer shall
cause such assignment to be delivered to the Trustee promptly upon receipt of
the original with evidence of recording thereon or a copy certified by the
public recording office in which such assignment was recorded.
Any successor to the Servicer as servicer shall give notice to the
Mortgagors of such change of servicer and shall, during the term of its service
as servicer, maintain in force the policy or policies that the Servicer is
required to maintain pursuant to this Agreement.
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Section 7.03 Notification to Certificateholders.
(a) Upon any termination of or appointment of a successor to
the Servicer, the Trustee shall give prompt written notice thereof
to Certificateholders and to each Rating Agency.
(b) Within 60 days after the occurrence of any Event of
Default, the Trustee shall transmit by mail to all
Certificateholders and each Rating Agency notice of each such
Event of Default hereunder known to the Trustee, unless such Event
of Default shall have been cured or waived.
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ARTICLE EIGHT
CONCERNING THE TRUSTEE
Section 8.01 Duties of the Trustee.
The Trustee, before the occurrence of an Event of Default and after the
curing of all Events of Default that may have occurred, shall undertake to
perform such duties and only such duties as are specifically set forth in this
Agreement. In case an Event of Default has occurred and remains uncured, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee that are specifically required to be furnished pursuant to any provision
of this Agreement shall examine them to determine whether they are in the form
required by this Agreement. The Trustee shall not be responsible for the
accuracy or content of any such resolution, certificate, statement, opinion,
report, document, order, or other instrument.
No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that, unless an Event
of Default known to the Trustee has occurred and is continuing,
(a) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Agreement, the
Trustee shall not be liable except for the performance of the
duties and obligations specifically set forth in this Agreement,
no implied covenants or obligations shall be read into this
Agreement against the Trustee, and the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the requirements of
this Agreement which it believed in good faith to be genuine and
to have been duly executed by the proper authorities respecting
any matters arising hereunder;
(b) the Trustee shall not be liable for an error of judgment
made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it is finally proven that the
Trustee was negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any
action taken, suffered, or omitted to be taken by it in good faith
in accordance with the direction of Holders of Certificates
evidencing not less than 25% of the Voting Rights of Certificates
relating to the time, method, and place of conducting any
proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee under this
Agreement. As long as any Voting Rights are held by parties other
than the Seller, its Affiliates, or its agents, as the Seller
shall certify to the Trustee upon any such entity obtaining such
ownership, Voting Rights of Certificates held by the Seller, its
Affiliates or its agents will be excluded from participating in
such voting arrangements, and excluded from determining the 25%
threshold.
Section 8.02 Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
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(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 (provided, however, that no Certificates held by the
Seller, the Depositor or any Affiliate thereof shall be given
effect for the purpose of calculating any such aggregation of
Voting Rights);
(e) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents, accountants or attorneys and the Trustee shall not
be responsible for any misconduct or negligence on the part of any
agents, accountants or attorneys appointed with due care by it
hereunder;
(f) the Trustee shall not be required to risk or expend its
own funds or otherwise incur any financial liability in the
performance of any of its duties or in the exercise of any of its
rights or powers hereunder if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity
against such risk or liability is not assured to it;
(g) the Trustee shall not be liable for any loss on any
investment of funds pursuant to this Agreement (other than as
issuer of the investment security);
(h) the Trustee shall not be deemed to have knowledge of an
Event of Default until a Responsible Officer of the Trustee shall
have received written notice thereof;
(i) the Trustee shall be under no obligation to exercise any
of the trusts, rights or powers vested in it by this Agreement or
to institute, conduct or defend any litigation hereunder or in
relation hereto at the request, order or direction of any of the
Certificateholders, pursuant to this Agreement, unless such
Certificateholders shall have offered to the Trustee reasonable
security or indemnity satisfactory to the Trustee against the
costs, expenses and liabilities which may be incurred therein or
thereby;
(j) the Trustee or its Affiliates are permitted to receive
additional compensation that could be deemed to be in the
Trustee's economic self-interest for (i) serving as investment
adviser, administrator, shareholder servicing agent, custodian or
sub-custodian with respect to certain of the Permitted
Investments, (ii) using Affiliates to effect transactions in
certain
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Permitted Investments and (iii) effecting transactions in certain
Permitted Investments. The Trustee does not guarantee the
performance of any Permitted Investment; and
(k) the Trustee shall not knowingly take any action that
would cause the Trust Fund to fail to qualify as a qualifying
special purpose entity.
In order to comply with laws, rules, regulations and executive orders
in effect from time to time applicable to banking institutions, including those
relating to the funding of terrorist activities and money laundering
("Applicable Law"), the Trustee is required to obtain, verify and record certain
information relating to individuals and entities which maintain a business
relationship with the Trustee. Accordingly, each of the parties agrees to
provide to the Trustee upon its request from time to time such identifying
information and documentation as may be available for such party in order to
enable the Trustee to comply with Applicable Law.
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates shall be taken as
the statements of the Depositor or the Seller, as the case may be, and the
Trustee assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Agreement or of the
Certificates or of any Mortgage Loan or related document other than with respect
to the Trustee's execution and countersignature of the Certificates. The Trustee
shall not be accountable for the use or application by the Depositor or the
Servicer of any funds paid to the Depositor or the Servicer in respect of the
Mortgage Loans or deposited in or withdrawn from the Certificate Account by the
Depositor or the Servicer.
Except as provided in Section 2.01(c), the Trustee shall have no
responsibility for filing or recording any financing or continuation statement
in any public office at any time or to otherwise perfect or maintain the
perfection of any security interest or lien granted to it hereunder (unless the
Trustee shall have become the successor Servicer). The Trustee makes no
representations as to the validity or sufficiency of this Agreement or of the
Certificates or of any Mortgage Loan or related document or of MERS or the
MERS(R) System other than with respect to the Trustee's execution and
counter-signature of the Certificates.
The Trustee executes the Certificates not in its individual capacity
but solely as Trustee of the Trust Fund created by this Agreement, in the
exercise of the powers and authority conferred and vested in it by this
Agreement. Each of the undertakings and agreements made on the part of the
Trustee on behalf of the Trust Fund in the Certificates is made and intended not
as a personal undertaking or agreement by the Trustee but is made and intended
for the purpose of binding only the Trust Fund.
Section 8.04 Trustee May Own Certificates.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Certificates with the same rights as it would have if it
were not the Trustee.
Section 8.05 Trustee's Fees and Expenses.
As compensation for its activities under this Agreement, on each
Distribution Date the Trustee may withdraw from the Distribution Account the
Trustee Fee for that Distribution Date. The Trustee and any director, officer,
employee, or agent of the Trustee shall be indemnified by the Servicer against
any loss, liability, or expense (including reasonable attorney's fees) resulting
from any error in any tax
87
or information return prepared by the Servicer or incurred in connection with
any claim or legal action relating to
(a) this Agreement, (b) the Certificates, or (c) the
performance of any of the Trustee's duties under this Agreement,
other than any loss, liability or expense incurred because of
willful misfeasance, bad faith or negligence in the performance of
any of the Trustee's duties hereunder or incurred by reason of any
action of the Trustee taken at the direction of the
Certificateholders under this Agreement. This indemnity shall
survive the termination of this Agreement or the resignation or
removal of the Trustee under this Agreement. Without limiting the
foregoing, except as otherwise agreed upon in writing by the
Depositor and the Trustee, and except for any expense,
disbursement, or advance arising from the Trustee's negligence,
bad faith, or willful misconduct, the Servicer shall pay or
reimburse the Trustee, for all reasonable expenses, disbursements,
and advances incurred or made by the Trustee in accordance with
this Agreement with respect to
(A) the reasonable compensation, expenses, and disbursements of its
counsel not associated with the closing of the issuance of the Certificates
and
(B) the reasonable compensation, expenses, and disbursements of any
accountant, engineer, or appraiser that is not regularly employed by the
Trustee, to the extent that the Trustee must engage them to perform services
under this Agreement.
Except as otherwise provided in this Agreement, the Trustee shall not be
entitled to payment or reimbursement for any routine ongoing expenses incurred
by the Trustee in the ordinary course of its duties as Trustee, Registrar, or
Paying Agent under this Agreement or for any other expenses.
Section 8.06 Eligibility Requirements for the Trustee.
The Trustee hereunder shall at all times be a corporation or
association organized and doing business under the laws of a state or the United
States of America, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000, subject
to supervision or examination by federal or state authority and with a credit
rating which would not cause either of the Rating Agencies to reduce their
respective then current ratings of the Certificates (or having provided such
security from time to time as is sufficient to avoid such reduction) as
evidenced in writing by each Rating Agency. If such corporation or association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 8.06 the combined capital and surplus of such
corporation or association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with this
Section 8.06, the Trustee shall resign immediately in the manner and with the
effect specified in Section 8.07. The entity serving as Trustee may have normal
banking and trust relationships with the Depositor and its affiliates or the
Servicer and its affiliates; provided, however, that such entity cannot be an
affiliate of the Seller, the Depositor or the Servicer other than the Trustee in
its role as successor to the Servicer.
Section 8.07 Resignation and Removal of the Trustee.
The Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice of resignation to the Depositor, the
Servicer, and each Rating Agency not less than 60 days before the date specified
in such notice, when, subject to Section 8.08, such resignation is to take
effect, and acceptance by a successor trustee in accordance with Section 8.08
meeting the qualifications set forth in Section 8.06. If no successor trustee
meeting such qualifications shall have been so appointed and have
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accepted appointment within 30 days after the giving of such notice or
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
As a condition to the effectiveness of any such resignation, at least
15 calendar days prior to the effective date of such resignation, the Trustee
shall provide (x) written notice to the Depositor of any successor pursuant to
this Section and (y) in writing and in form and substance reasonably
satisfactory to the Depositor, all information reasonably requested by the
Depositor in order to comply with its reporting obligation under Item 6.02 of
Form 8-K with respect to the resignation of the Trustee.
If at any time (i) the Trustee shall cease to be eligible in accordance
with Section 8.06 and shall fail to resign after written request thereto by the
Depositor, (ii) the Trustee shall become incapable of acting, or shall be
adjudged as bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed, or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, (iii)(A) a tax is imposed with respect to the Trust
Fund by any state in which the Trustee or the Trust Fund is located and (B) the
imposition of such tax would be avoided by the appointment of a different
trustee, or (iv) during the period which the Depositor is required to file
Exchange Act Reports with respect to the Trust Fund, the Trustee fails to comply
with its obligations under the last sentence of Section 7.01, the preceding
paragraph, Section 8.09 or Article 11 and such failure is not remedied within
the lesser of 10 calendar days or such period in which the applicable Exchange
Act Report can be filed timely (without taking into account any extensions),
then, in the case of clauses (i) through (iii), then the Depositor or the
Servicer, or in the case of clause (iv), the Depositor, may remove the Trustee
and appoint a successor trustee by written instrument, in triplicate, one copy
of which shall be delivered to the Trustee, one copy to the Servicer and one
copy to the successor trustee.
The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which shall be
delivered by the successor Trustee to the Servicer, one complete set to the
Trustee so removed, one complete set to the successor so appointed and one
complete set to the Depositor, together with a written description of the basis
for such removal. As long as any Voting Rights are held by parties other than
the Seller, its Affiliates, or its agents, as the Seller shall certify to the
Trustee upon any such entity obtaining such ownership, Voting Rights of
Certificates held by the Seller, its Affiliates or its agents will be excluded
from participating in such voting arrangements, and excluded from determining
the 51% threshold. The successor trustee shall notify each Rating Agency of any
removal of the Trustee.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to this Section 8.07 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section 8.08.
Section 8.08 Successor Trustee.
Any successor trustee appointed as provided in Section 8.07 shall
execute, acknowledge and deliver to the Depositor and to its predecessor trustee
and the Servicer an instrument accepting such appointment hereunder and
thereupon the resignation or removal of the predecessor trustee shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if originally
named as trustee herein. The Depositor, the Servicer and the predecessor trustee
shall execute and deliver such instruments and do such other things as may
reasonably be required for more fully and certainly vesting and confirming in
the successor trustee all such rights, powers, duties, and obligations.
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No successor trustee shall accept appointment as provided in this
Section 8.08 unless, at the time of its acceptance, the successor trustee is
eligible under Section 8.06 and its appointment does not adversely affect the
then current rating of the Certificates and has provided to the Depositor in
writing and in form and substance reasonably satisfactory to the Depositor, all
information reasonably requested by the Depositor in order to comply with its
reporting obligation under Item 6.02 of Form 8-K with respect to a replacement
Trustee.
Upon acceptance of appointment by a successor trustee as provided in
this Section 8.08, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates. If the Depositor fails to mail
such notice within 10 days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be mailed at the
expense of the Depositor.
Section 8.09 Merger or Consolidation of the Trustee.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to the business of the Trustee, shall be the successor of
the Trustee hereunder, provided that such corporation shall be eligible under
Section 8.06 without the execution or filing of any paper or further act on the
part of any of the parties hereto, anything herein to the contrary
notwithstanding.
As a condition to the effectiveness of any merger or consolidation, at
least 15 calendar days prior to the effective date of any merger or
consolidation of the Trustee, the Trustee shall provide (x) written notice to
the Depositor of any successor pursuant to this Section and (y) in writing and
in form and substance reasonably satisfactory to the Depositor, all information
reasonably requested by the Depositor in order to comply with its reporting
obligation under Item 6.02 of Form 8-K with respect to a replacement Trustee.
Section 8.10 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust Fund or property securing any Mortgage Note may at the
time be located, the Servicer and the Trustee acting jointly shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Trustee to act as co-trustee or co-trustees jointly with
the Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity and for the
benefit of the Certificateholders, such title to the Trust Fund or any part
thereof, whichever is applicable, and, subject to the other provisions of this
Section 8.10, such powers, duties, obligations, rights and trusts as the
Servicer and the Trustee may consider appropriate. If the Servicer shall not
have joined in such appointment within 15 days after the receipt by it of a
request to do so, or in the case an Event of Default shall have occurred and be
continuing, the Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 8.06 and no notice to
Certificateholders of the appointment of any co-trustee or separate trustee
shall be required under Section 8.08.
Every separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(a) To the extent necessary to effectuate the purposes of
this Section 8.10, all rights, powers, duties and obligations
conferred or imposed upon the Trustee, except for the obligation
of the Trustee under this Agreement to advance funds on behalf of
the Servicer, shall be
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conferred or imposed upon and exercised or performed by the
Trustee and such separate trustee or co-trustee jointly (it being
understood that such separate trustee or co-trustee is not
authorized to act separately without the Trustee joining in such
act), except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether
as Trustee hereunder or as successor to the Servicer hereunder),
the Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the applicable
Trust Fund or any portion thereof in any such jurisdiction) shall
be exercised and performed singly by such separate trustee or
co-trustee, but solely at the direction of the Trustee;
(b) No trustee hereunder shall be held personally liable
because of any act or omission of any other trustee hereunder and
such appointment shall not, and shall not be deemed to, constitute
any such separate trustee or co-trustee as agent of the Trustee;
(c) The Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee; and
(d) The Servicer, and not the Trustee, shall be liable for
the payment of reasonable compensation, reimbursement and
indemnification to any such separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the separate trustees and co-trustees, when
and as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to the
Servicer and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 8.11 Tax Matters.
It is intended that the assets with respect to which one or more REMIC
elections pertaining to the Trust Fund is to be made, as set forth in the
Preliminary Statement, shall constitute, and that the conduct of matters
relating to such assets shall be such as to qualify such assets as, a "real
estate mortgage investment conduit" as defined in and in accordance with the
REMIC Provisions. In furtherance of such intention, the Trustee covenants and
agrees that it shall act as agent (and the Trustee is hereby appointed to act as
agent) on behalf of each REMIC created under this Agreement and that in such
capacity it shall:
(a) prepare and file in a timely manner, a U.S. Real Estate
Mortgage Investment Conduit Income Tax Return (Form 1066 or any
successor form adopted by the Internal Revenue Service) with
respect to each REMIC created hereunder and prepare and file with
the Internal Revenue Service and applicable state or local tax
authorities income tax or information returns for each taxable
year with respect to each REMIC described in the Preliminary
Statement,
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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 under this
Agreement be treated as a REMIC on the federal tax return for its
first taxable year (and, if necessary, under applicable state
law);
(d) prepare and forward to the Certificateholders and to the
Internal Revenue Service and, if necessary, state tax authorities,
all information returns and reports as and when required to be
provided to them in accordance with the REMIC Provisions,
including the calculation of any original issue discount using the
Prepayment Assumption;
(e) provide information necessary for the computation of tax
imposed on the transfer of a Residual Certificate to a Person that
is not a Permitted Transferee, or an agent (including a broker,
nominee or other middleman) of a Person that is not a Permitted
Transferee, or a pass-through entity in which a Person that is not
a Permitted Transferee is the record holder of an interest (the
reasonable cost of computing and furnishing such information may
be charged to the Person liable for such tax);
(f) to the extent that they are under its control, conduct
matters relating to such assets at all times that any Certificates
are outstanding so as to maintain the status as any REMIC created
under this Agreement under the REMIC Provisions;
(g) not knowingly or intentionally take any action or omit
to take any action that would cause the termination of the REMIC
status of any REMIC created under this Agreement;
(h) pay, from the sources specified in the third paragraph
of this Section 8.11, the amount of any federal or state tax,
including prohibited transaction taxes as described below, imposed
on any REMIC before its termination when and as the same shall be
due and payable (but such obligation shall not prevent the Trustee
or any other appropriate Person from contesting any such tax in
appropriate proceedings and shall not prevent the Trustee from
withholding payment of such tax, if permitted by law, pending the
outcome of such proceedings);
(i) ensure that federal, state or local income tax or
information returns shall be signed by the Trustee or such other
person as may be required to sign such returns by the Code or
state or local laws, regulations or rules;
(j) maintain records relating to each REMIC created under
this Agreement, including the income, expenses, assets, and
liabilities thereof and the fair market value and adjusted basis
of the assets determined at such intervals as may be required by
the Code, as may be necessary to prepare the foregoing returns,
schedules, statements or information; and
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(k) as and when necessary and appropriate, represent each
REMIC created under this Agreement in any administrative or
judicial proceedings relating to an examination or audit by any
governmental taxing authority, request an administrative
adjustment as to any taxable year of such REMIC, enter into
settlement agreements with any governmental taxing agency, extend
any statute of limitations relating to any tax item of such REMIC,
and otherwise act on behalf of such REMIC in relation to any tax
matter or controversy involving it.
To enable the Trustee to perform its duties under this Agreement, the
Depositor shall provide to the Trustee within ten days after the Closing Date
all information or data that the Trustee requests in writing and determines to
be relevant for tax purposes to the valuations and offering prices of the
Certificates, including the price, yield, prepayment assumption, and projected
cash flows of the Certificates and the Mortgage Loans. Thereafter, the Depositor
shall provide to the Trustee promptly upon written request therefor any
additional information or data that the Trustee may, from time to time,
reasonably request to enable the Trustee to perform its duties under this
Agreement. The Depositor hereby indemnifies the Trustee for any losses,
liabilities, damages, claims, or expenses of the Trustee arising from any errors
or miscalculations of the Trustee that result from any failure of the Depositor
to provide, or to cause to be provided, accurate information or data to the
Trustee on a timely basis.
If any tax is imposed on "prohibited transactions" (as defined in
section 860F(a)(2) of the Code) of any REMIC created under this Agreement, on
the "net income from foreclosure property" of any REMIC created under this
Agreement as defined in section 860G(c) of the Code, on any contribution to any
REMIC created under this Agreement after the Startup Day pursuant to section
860G(d) of the Code, or any other tax is imposed, including any minimum tax
imposed on any REMIC created hereunder pursuant to sections 23153 and 24874 of
the California Revenue and Taxation Code, if not paid as otherwise provided for
herein, the tax shall be paid by (i) the Trustee, if any such other tax arises
out of or results from negligence of the Trustee in the performance of any of
its obligations under this Agreement, (ii) the Servicer or the Seller, in the
case of any such minimum tax, if such tax arises out of or results from a breach
by the Servicer or Seller of any of their obligations under this Agreement,
(iii) the Seller, if any such tax arises out of or results from the Seller's
obligation to repurchase a Mortgage Loan pursuant to Section 2.02 or 2.03, or
(iv) in all other cases, or if the Trustee, the Servicer, or the Seller fails to
honor its obligations under the preceding clauses (i), (ii), or (iii), any such
tax will be paid with amounts otherwise to be distributed to the
Certificateholders, as provided in Section 3.09(b).
The Trustee shall treat the Supplemental Interest Reserve Fund as an
outside reserve fund within the meaning of Treasury Regulation 1.860G-2(h) that
is owned by HSBC Securities (USA) Inc., and that is not an asset of any REMIC
created under this Agreement. The Trustee shall treat the rights of the holders
of the Class A-3 Certificates to receive payments from the Supplemental Interest
Reserve Fund and the Supplemental Interest Trust as rights in an interest rate
corridor contract written by the Cap Counterparty in respect of any Yield
Supplement Amounts distributed in favor of the Holders of the Class A-3
Certificates. Thus, the Class A-3 Certificates shall be treated as representing
ownership of not only a Master REMIC regular interest, but also ownership of an
interest in an interest rate corridor contract. For purposes of determining the
issue price of the Master REMIC regular interests, the Trustee shall assume that
the corridor contract entered into by the Class A-3 Certificates has a value of
$490,000.
The Trustee shall account for the Supplemental Interest Trust as a
grantor trust that is owned by HSBC Securities (USA) Inc. under subpart E, Part
I of subchapter J of the Code and not as an asset of any REMIC created
hereunder. The Trustee shall file or cause to be filed with the Internal Revenue
Service Form 1041 or such other form as may be applicable and shall furnish or
cause to be furnished, to the Cap Counterparty and the Class A-3
Certificateholders, the respective amounts described above that are received, in
the time or times and in the manner required by the Code.
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ARTICLE NINE
TERMINATION
Section 9.01 Termination upon Liquidation or Purchase of the Mortgage
Loans.
Subject to Section 9.03, the obligations and responsibilities of the
Depositor, the Servicer, and the Trustee created hereby shall terminate upon the
earlier of
(a) the purchase by the Servicer of all Mortgage Loans (and
REO Properties) at the price equal to the sum of
(i) 100% of the Stated Principal Balance of each Mortgage
Loan (other than in respect of a Delinquent Mortgage Loan or REO
Property) plus one month's accrued interest thereon at the
applicable Adjusted Mortgage Rate less any amounts collected by
the Servicer representing principal and interest due after the
related Due Date,
(ii) the lesser of (x) the appraised value of any Delinquent
Mortgage Loan or REO Property as determined by the higher of two
appraisals completed by two independent appraisers selected by the
Servicer at the expense of the Servicer and (y) the Stated
Principal Balance of each such Delinquent Mortgage Loan or
Mortgage Loan related to such REO Property, in each case plus
accrued and unpaid interest thereon at the applicable Adjusted Net
Mortgage Rate and
(iii) any costs and damages incurred by the Trust Fund in
connection with any violation by each Mortgage Loan of any
predatory or abusive lending law and
(b) the later of
(i) the maturity or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan and the disposition of
all REO Property and
(ii) the distribution to Certificateholders of all amounts
required to be distributed to them pursuant to this Agreement. In
no event shall the trusts created hereby continue beyond the
expiration of 21 years from the death of the survivor of the
descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the
United States to the Court of St. James's, living on the date of
this Agreement.
The right to purchase all Mortgage Loans and REO Properties pursuant to
clause (a) above shall be conditioned upon the aggregate Stated Principal
Balance of those Mortgage Loans, at the time of any such repurchase, aggregating
less than ten percent (10%) of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date. The Servicer shall effect any such
repurchase by depositing the purchase price, as calculated above, as of the
month preceding the date on which such purchase price shall be distributed to
Certificateholders into the Certificate Account.
Section 9.02 Final Distribution on the Certificates.
If on any Determination Date the Servicer determines that there are no
Outstanding Mortgage Loans and no other funds or assets in the Trust Fund other
than the funds in the Certificate Account, the Servicer shall direct the Trustee
promptly to send a final distribution notice to each Certificateholder. If the
Servicer elects to terminate the Trust Fund pursuant to clause (a) of Section
9.01, no later than the 15th day of the month preceding the month of the final
Distribution Date the Servicer shall notify the
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Depositor and the Trustee of the date the Servicer intends to terminate the
Trust Fund and of the applicable repurchase price of the Mortgage Loans and
REO Properties.
Notice of any termination of the Trust Fund specifying the Distribution
Date on which Certificateholders may surrender their Certificates for payment of
the final distribution and cancellation shall be given promptly by the Trustee
by letter to Certificateholders mailed not earlier than the 15th day and not
later than the last day of the month next preceding the month of such final
distribution. Any such notice shall specify (a) the Distribution Date upon which
final distribution on the Certificates will be made upon presentation and
surrender of Certificates at the office therein designated, (b) the amount of
such final distribution, (c) the location of the office or agency at which such
presentation and surrender must be made, and (d) that the Record Date otherwise
applicable to the Distribution Date is not applicable, distributions being made
only upon presentation and surrender of the Certificates at the office therein
specified. The Servicer will give such notice to each Rating Agency at the time
such notice is given to Certificateholders.
If this notice is given, the Servicer shall cause all funds in the
Certificate Account to be remitted to the Trustee for deposit in the
Distribution Account on the Business Day before the applicable Distribution Date
in an amount equal to the final distribution in respect of the Certificates.
Upon such final deposit with respect to the Trust Fund and the receipt by the
Trustee of a Request for Release therefor, the Trustee shall promptly release to
the Servicer the Mortgage Files for the Mortgage Loans.
Upon presentation and surrender of the Certificates, the Trustee shall
cause to be distributed to the Certificateholders of each Class, in each case on
the final Distribution Date and in the order set forth in Section 4.02, in
proportion to their respective Percentage Interests, with respect to
Certificateholders of the same Class, an amount equal to (i) as to each Class of
Regular Certificates, its Certificate Balance plus for each such Class accrued
interest thereon (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.
Notwithstanding the reduction of the Certificate Balance of any Class of
Certificates to zero, such Class will be outstanding hereunder solely for the
purpose of receiving distributions and for no other purpose until the
termination of the respective obligations and responsibilities of the Depositor,
the Servicer and the Trustee hereunder in accordance with Article Nine. The
foregoing provisions are intended to distribute to each Class of Regular
Certificates any accrued and unpaid interest and principal to which they are
entitled based on the Pass-Through Rates and actual Class Certificate Balances
or Notional Amounts set forth in the Preliminary Statement upon liquidation of
the Trust Fund.
If any affected Certificateholder does not surrender its Certificates
for cancellation within six months after the date specified in the above
mentioned written notice, the Trustee shall give a second written notice to the
remaining Certificateholders to surrender their Certificates for cancellation
and receive the final distribution with respect thereto. If within six months
after the second notice all the applicable Certificates shall not have been
surrendered for cancellation, the Trustee may take appropriate steps, or may
appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds and other assets which remain a part of
the Trust Fund. If within one year after the second notice all Certificates
shall not have been surrendered for cancellation, then the Class A-R
Certificateholders shall be entitled to all unclaimed funds and other assets of
the Trust Fund which remain subject hereto.
The Supplemental Interest Trust shall terminate on the earlier of (i)
the Termination Date and (ii) the date on which the Class Certificate Balances
of the Class A-3 Certificates are reduced to zero.
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Section 9.03 Additional Termination Requirements.
(a) If the Servicer exercises its purchase option with
respect to the Mortgage Loans as provided in Section 9.01, the
Trust Fund shall be terminated in accordance with the following
additional requirements, unless the Trustee has been supplied with
an Opinion of Counsel, at the expense of the Servicer, to the
effect that the failure to comply with the requirements of this
Section 9.03 will not (i) result in the imposition of taxes on
"prohibited transactions" on any REMIC created hereunder as
defined in section 860F of the Code, or (ii) cause any REMIC
created under this Agreement to fail to qualify as a REMIC at any
time that any Certificates are outstanding:
(b) The Trustee shall sell all of the assets of the Trust
Fund to the Servicer, and, within 90 days of such sale, shall
distribute to the Certificateholders the proceeds of such sale in
complete liquidation of each REMIC created under this Agreement.
(c) The Trustee shall attach a statement to the final
federal income tax return for each REMIC created under this
Agreement stating that pursuant to Treasury Regulation ss.
1.860F-1, the first day of the 90-day liquidation period for such
REMIC was the date on which the Trustee sold the assets of the
Trust Fund to the Servicer.
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ARTICLE TEN
MISCELLANEOUS PROVISIONS
Section 10.01 Amendment.
This Agreement may be amended from time to time by the Depositor, the
Servicer and the Trustee without the consent of any of the Certificateholders
(i) to cure any ambiguity or mistake, (ii) to correct any defective provision in
this Agreement or to supplement any provision in this Agreement which may be
inconsistent with any other provision in this Agreement, (iii) to conform this
Agreement to the Prospectus Supplement, (iv) to add to the duties of the
Depositor, the Seller or the Servicer, (v) to modify, alter, amend, add to or
rescind any of the terms or provisions contained in this Agreement to comply
with any rules or regulations promulgated by the Securities and Exchange
Commission from time to time, (vi) to add any other provisions with respect to
matters or questions arising under this Agreement, or (vii) to modify, alter,
amend, add to, or rescind any of the terms or provisions contained in this
Agreement.
No action pursuant to clauses (v), (vi) or (vii) above may, as
evidenced by an Opinion of Counsel (which Opinion of Counsel shall not be an
expense of the Trustee or the Trust Fund), adversely affect in any material
respect the interests of any Certificateholder. The amendment shall not be
deemed to adversely affect in any material respect the interests of the
Certificateholders if the Person requesting the amendment obtains a letter from
each Rating Agency stating that the amendment would not result in the
downgrading, qualification or withdrawal of the respective ratings then assigned
to the Certificates. Any such letter in and of itself will not represent a
determination as to the materiality of any amendment and will represent a
determination only as to the credit issues affecting any rating. Each party to
this Agreement agrees that it will cooperate with each other party in amending
this Agreement pursuant to clause (v) above.
The Trustee, the Depositor, and the Servicer also may at any time and
from time to time amend this Agreement without the consent of the
Certificateholders to modify, eliminate or add to any of its provisions to the
extent necessary or helpful to (i) maintain the qualification of any REMIC
created under this Agreement as a REMIC under the Code, (ii) avoid or minimize
the risk of the imposition of any tax on any REMIC created under this Agreement
pursuant to the Code that would be a claim at any time before the final
redemption of the Certificates, or (iii) comply with any other requirements of
the Code, if the Trustee has been provided an Opinion of Counsel, which opinion
shall be an expense of the party requesting such opinion but in any case shall
not be an expense of the Trustee or the Trust Fund, to the effect that the
action is necessary or helpful for one of the foregoing purposes.
This Agreement may also be amended from time to time by the Depositor,
the Servicer, and the Trustee with the consent of the Holders of Certificates
evidencing Percentage Interests aggregating not less than 51% of each Class of
Certificates adversely affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Agreement or of modifying in any manner the rights of the Holders of
Certificates. As long as any Voting Rights are held by parties other than the
Seller, its Affiliates, or its agents as the Seller shall certify to the Trustee
upon any such entity obtaining such ownership, Voting Rights of Certificates
held by the Seller, its Affiliates or its agents will be excluded from
participating in such voting arrangements, and excluded from determining the 51%
threshold. No amendment shall
(i) reduce in any manner the amount of, or delay the timing of,
payments required to be distributed on any Certificate without the consent of
the Holder of such Certificate,
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(ii) amend, modify, add to, rescind, or alter in any respect Section
10.13, notwithstanding any contrary provision of this Agreement, without the
consent of the Holders of Certificates evidencing Percentage Interests
aggregating not less than 66 2/3% (provided, however, that no Certificates held
by the Seller, the Depositor or any Affiliate thereby shall be given effect for
the purpose of calculating any such aggregation of Percentage Interests), or
(iii) reduce the aforesaid percentages of Certificates the Holders of
which are required to consent to any such amendment, without the consent of the
Holders of all such Certificates then outstanding.
Notwithstanding any contrary provision of this Agreement, the Trustee
shall not consent to any amendment to this Agreement unless (i) it shall have
first received an Opinion of Counsel, which opinion shall not be an expense of
the Trustee or the Trust Fund, to the effect that such amendment will not cause
the imposition of any tax on any REMIC created under this Agreement or the
Certificateholders or cause any REMIC created hereunder to fail to qualify as a
REMIC at any time that any Certificates are outstanding and (ii) because the
Trust Fund is required to be a Qualifying Special Purpose Entity (as that term
is defined in Statement of Financial Accounting Standards No. 140 ("SFAS 140"),
in order for the Seller to continue to account for the transfer of the Mortgage
Loans under this Agreement as a sale under SFAS 140, prior to the parties hereto
entering into such an amendment, the Trustee shall receive an Officer's
Certificate, which shall not be an expense of the Trustee or the Trust Fund, to
the effect that such amendment would not "significantly change" (within the
meaning of SFAS 140) the permitted activities of the Trust Fund so as to cause
the Trust Fund to fail to qualify as a Qualifying Special Purpose Entity.
Promptly after the execution of any amendment to this Agreement
requiring the consent of Certificateholders, the Trustee shall furnish written
notification of the substance or a copy of such amendment to each
Certificateholder and each Rating Agency.
It shall not be necessary for the consent of Certificateholders under
this Section 10.01 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee to enter into an
amendment without receiving an Opinion of Counsel (which Opinion shall not be an
expense of the Trustee or the Trust Fund), satisfactory to the Trustee that (i)
such amendment is permitted and is not prohibited by this Agreement and that all
requirements for amending this Agreement have been complied with; and (ii)
either (A) the amendment does not adversely affect in any material respect the
interests of any Certificateholder or (B) the conclusion set forth in the
preceding clause (A) is not required to be reached pursuant to this Section
10.01.
Section 10.02 Recordation of Agreement; Counterparts.
This Agreement is subject to recordation in all appropriate public
offices for real property records in all the counties or other comparable
jurisdictions in which any or all of the properties subject to the Mortgages are
situated, and in any other appropriate public recording office or elsewhere,
such recordation to be effected by the Servicer at its expense, but only upon
receipt of an Opinion of Counsel to the effect that such recordation materially
and beneficially affects the interests of the Certificateholders.
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For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 10.03 Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND
TO BE PERFORMED IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
Section 10.04 Intention of Parties.
It is the express intent of the parties hereto that the conveyance (i)
of the Mortgage Loans by the Seller to the Depositor and (ii) of the Trust Fund
by the Depositor to the Trustee each be, and be construed as, an absolute sale
thereof. It is, further, not the intention of the parties that such conveyances
be deemed a pledge thereof. However, if, notwithstanding the intent of the
parties, the assets are held to be the property of the Seller or Depositor, as
the case may be, or if for any other reason this Agreement is held or deemed to
create a security interest in either such assets, then (i) this Agreement shall
be deemed to be a security agreement within the meaning of the UCC and (ii) the
conveyances provided for in this Agreement shall be deemed to be an assignment
and a grant (i) by the Seller to the Depositor or (ii) by the Depositor to the
Trustee, for the benefit of the Certificateholders, of a security interest in
all of the assets transferred, whether now owned or hereafter acquired.
The Seller and the Depositor for the benefit of the Certificateholders
shall, to the extent consistent with this Agreement, take such actions as may be
necessary to ensure that, if this Agreement were deemed to create a security
interest in the Trust Fund, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and will be
maintained as such throughout the term of the Agreement. The Depositor shall
arrange for filing any Uniform Commercial Code continuation statements in
connection with any security interest granted or assigned to the Trustee for the
benefit of the Certificateholders.
Section 10.05 Notices.
(a) The Trustee shall use its best efforts to promptly
provide notice to each Rating Agency with respect to each of the
following of which it has actual knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Event of Default that has not been cured;
3. The resignation or termination of the Servicer or the Trustee and
the appointment of any successor;
4. The repurchase or substitution of Mortgage Loans pursuant to Section
2.03; and
5. The final distribution to Certificateholders.
In addition, the Trustee shall promptly furnish to each Rating Agency
copies of the following:
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1. Each report to Certificateholders described in Section 4.06;
2. Each annual statement as to compliance described in Section 3.17;
3. Each annual independent public accountants' servicing report
described in Section 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:
Secondary Marketing, Transaction Management; (b) in the case of
the Servicer, IndyMac Bank, F.S.B., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Secondary Marketing,
Transaction Management or such other address as may be hereafter
furnished to the Depositor and the Trustee by the Servicer in
writing; (c) in the case of the Trustee to the Corporate Trust
Office, Deutsche Bank National Trust Company, ▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Trust
Administration IN0701, Series 2007-A, or such other address as the
Trustee may hereafter furnish to the Depositor or Servicer and (d)
in the case of each of the Rating Agencies, the address specified
therefor in the definition corresponding to the name of such
Rating Agency. Notices to Certificateholders shall be deemed given
when mailed, first class postage prepaid, to their respective
addresses appearing in the Certificate Register.
Section 10.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
Section 10.07 Assignment.
Notwithstanding anything to the contrary contained in this Agreement,
except as provided in Section 6.02, this Agreement may not be assigned by the
Servicer without the prior written consent of the Trustee and Depositor.
Section 10.08 Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the trust created by this Agreement, nor entitle
such Certificateholder's legal representative or heirs to claim an accounting or
to take any action or commence any proceeding in any court for a petition or
winding up of the trust created hereby, or otherwise affect the rights,
obligations and liabilities of the parties to this Agreement or any of them.
No Certificateholder shall have any right to vote (except as provided
in this Agreement) or in any manner otherwise control the operation and
management of the Trust Fund, or the obligations of the parties to this
Agreement, nor shall anything herein set forth or contained in the terms of the
Certificates be construed so as to constitute the Certificateholders from time
to time as partners or members of an association; nor shall any
Certificateholder be under any liability to any third party because of any
action taken by the parties to this Agreement pursuant to any provision of this
Agreement.
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No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Agreement,
unless such Holder previously shall have given to the Trustee a written notice
of an Event of Default and of the continuance thereof, as provided in this
Agreement, and unless the Holders of Certificates evidencing not less than 25%
of the Voting Rights evidenced by the Certificates shall also have made written
request to the Trustee to institute such action, suit or proceeding in its own
name as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses, and liabilities to be
incurred therein or thereby, and the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity shall have neglected or refused to
institute any such action, suit or proceeding; it being understood and intended,
and being expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain or seek
to obtain priority over or preference to any other such Holder or to enforce any
right under this Agreement, except in the manner herein provided and for the
common benefit of all Certificateholders. For the protection and enforcement of
this Section 10.08, each Certificateholder and the Trustee shall be entitled to
any relief that can be given either at law or in equity. As long as any Voting
Rights are held by parties other than the Seller, its Affiliates, or its agents,
as the Seller shall certify to the Trustee upon any such entity obtaining such
ownership, Voting Rights of Certificates held by the Seller, its Affiliates or
its agents will be excluded from participating in such voting arrangements, and
excluded from determining the 25% threshold.
Section 10.09 Inspection and Audit Rights.
The Servicer agrees that, on reasonable prior notice, it will permit
any representative of the Depositor or the Trustee during the Servicer's normal
business hours, to examine all the books of account, records, reports and other
papers of the Servicer relating to the Mortgage Loans, to make copies and
extracts therefrom, to cause such books to be audited by independent certified
public accountants selected by the Depositor or the Trustee and to discuss its
affairs, finances and accounts relating to the Mortgage Loans with its officers,
employees and independent public accountants (and by this provision the Servicer
hereby authorizes said accountants to discuss with such representative such
affairs, finances and accounts), all at such reasonable times and as often as
may be reasonably requested. Any out-of-pocket expense incident to the exercise
by the Depositor or the Trustee of any right under this Section 10.09 shall be
borne by the party requesting such inspection; all other such expenses shall be
borne by the Servicer.
Section 10.10 Certificates Nonassessable and Fully Paid.
It is the intention of the Depositor that Certificateholders shall not
be personally liable for obligations of the Trust Fund, that the interests in
the Trust Fund represented by the Certificates shall be nonassessable for any
reason whatsoever, and that the Certificates, upon due authentication thereof by
the Trustee pursuant to this Agreement, are and shall be deemed fully paid.
Section 10.11 Official Record.
The Seller agrees that this Agreement is and shall remain at all times
before the time at which this Agreement terminates an official record of the
Seller as referred to in Section 13(e) of the Federal Deposit Insurance Act.
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Section 10.12 Protection of Assets.
(a) Except for transactions and activities entered into in
connection with the securitization that is the subject of this
Agreement, the trust created by this Agreement is not authorized
and has no power to:
(1) borrow money or issue debt;
(2) merge with another entity, reorganize, liquidate or sell assets;
(3) engage in any business or activities.
(b) Each party to this Agreement agrees that it will not
file an involuntary bankruptcy petition against the Trustee or the
Trust Fund or initiate any other form of insolvency proceeding
until after the Certificates have been paid in full.
Section 10.13 Qualifying Special Purpose Entity.
Notwithstanding any contrary provision of this Agreement, the Trust
Fund shall not hold any property or engage in any activity that would disqualify
the Trust Fund from being a qualifying special purpose entity under generally
accepted accounting principles.
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ARTICLE ELEVEN
EXCHANGE ACT REPORTING
Section 11.01 Filing Obligations.
The Servicer, the Trustee and the Seller shall reasonably cooperate
with the Depositor in connection with the satisfaction of the Depositor's
reporting requirements under the Exchange Act with respect to the Trust Fund. In
addition to the information specified below, if so requested by the Depositor
for the purpose of satisfying its reporting obligation under the Exchange Act,
the Servicer, the Trustee and the Seller shall provide the Depositor with (a)
such information which is available to such Person without unreasonable effort
or expense and within such timeframe as may be reasonably requested by the
Depositor to comply with the Depositor's reporting obligations under the
Exchange Act and (b) to the extent such Person is a party (and the Depositor is
not a party) to any agreement or amendment required to be filed, copies of such
agreement or amendment in ▇▇▇▇▇-compatible form.
Section 11.02 Form 10-D Filings.
(a) In accordance with the Exchange Act, unless no reporting
obligation under the Exchange Act exists at such time with respect
to the Trust Fund, the Trustee shall prepare for filing and file
within 15 days after each Distribution Date (subject to permitted
extensions under the Exchange Act) with the Commission with
respect to the Trust Fund, a Form 10-D with copies of the Monthly
Report and, to the extent delivered to the Trustee, no later than
five calendar days following the Distribution Date, such other
information identified by the Depositor or the Servicer, in
writing, to be filed with the Commission (such other information,
the "Additional Designated Information"). If the Depositor or
Servicer directs that any Additional Designated Information is to
be filed with any Form 10-D, the Depositor or Servicer, as the
case may be, shall specify the Item on Form 10-D to which such
information is responsive and, with respect to any Exhibit to be
filed on Form 10-D, the Exhibit number. Any information to be
filed on Form 10-D shall be delivered to the Trustee in
▇▇▇▇▇-compatible form or as otherwise agreed upon by the Trustee
and the Depositor or the Servicer, as the case may be, at the
Depositor's expense, and any necessary conversion to
▇▇▇▇▇-compatible format will be at the Depositor's expense. At the
reasonable request of, and in accordance with the reasonable
directions of, the Depositor or the Servicer, subject to the two
preceding sentences, the Trustee shall prepare for filing and file
an amendment to any Form 10-D previously filed with the Commission
with respect to the Trust Fund. The Depositor shall sign the Form
10-D filed on behalf of the Trust Fund.
The Trustee shall prepare each Form 10-D and, no later than five
Business Days prior to the date on which such Form 10-D is required to be filed,
deliver a copy of such Form 10-D to the Depositor for review. No later than the
Business Day following the receipt thereof, the Depositor shall notify the
Trustee of any changes to be made to the Form 10-D. The Trustee shall make any
changes thereto requested by the Depositor and deliver the final Form 10-D to
the Depositor for signature no later than three Business Days prior to the date
on which such Form 10-D must be filed by the Trustee in accordance with this
Section 11.02. The Depositor shall execute the final Form 10-D and deliver the
same to the Trustee via electronic mail (▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇.▇▇▇) or
facsimile no later than the Business Day following receipt of the same (which,
unless not received within such time frame from the Trustee, shall be no later
than two Business Days prior to the date on which the Form 10-D is required to
be filed), with an original executed hard copy to follow by overnight courier.
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(b) No later than each Distribution Date, any party
responsible for providing Additional Designated Information shall
notify the Depositor and the Trustee of any Form 10-D Disclosure
Item, together with a description of any such Form 10-D Disclosure
Item in form and substance reasonably acceptable to the Depositor.
In addition to such information as the Servicer and the Trustee
are obligated to provide pursuant to other provisions of this
Agreement, if so requested by the Depositor, each of the Servicer
and the Trustee shall provide such information which is available
to the Servicer and the Trustee, as applicable, without
unreasonable effort or expense regarding the performance or
servicing of the Mortgage Loans (in the case of the Trustee, based
on the information provided by the Servicer) as is reasonably
required to facilitate preparation of distribution reports in
accordance with Item 1121 of Regulation AB. Such information shall
be provided concurrently with the Remittance Reports in the case
of the Servicer and the Monthly Statement in the case of the
Trustee, commencing with the first such report due not less than
five Business Days following such request.
(c) The Trustee shall not have any responsibility to file
any items (other than those generated by it) that have not been
received in a format suitable (or readily convertible into a
format suitable) for electronic filing via the ▇▇▇▇▇ system and
shall not have any responsibility to convert any such items to
such format (other than those items generated by it or that are
readily convertible to such format). The Trustee shall have no
liability to the Certificateholders, the Trust Fund, the Servicer
or the Depositor with respect to any failure to properly prepare
or file any of Form 10-D to the extent that such failure is not
the result of any negligence, bad faith or willful misconduct on
its part. The Trustee will not have any duty to verify the
accuracy or sufficiency of any information to be included in any
Form 10-D not provided by it.
(d) The Trustee shall have no liability with respect to any
failure to properly prepare and file such periodic reports
resulting or relating to the Trustee's inability or failure to
obtain any information not resulting from its own negligence or
willful misconduct.
Section 11.03 Form 8-K Filings.
The Servicer shall prepare and file on behalf of the Trust Fund any
Form 8-K required by the Exchange Act. Each Form 8-K must be signed by the
Servicer. Any reporting party identified on Exhibit T shall promptly notify the
Depositor and the Servicer (if the notifying party is not the Servicer), but in
no event later than one (1) Business Day after its occurrence, of any Reportable
Event of which it has actual knowledge. Each Person shall be deemed to have
actual knowledge of any such event to the extent that it relates to such Person
or any action or failure to act by such Person.
Section 11.04 Form 10-K Filings.
Prior to (x) March 31, 2008 and (y) unless and until a Form 15
Suspension Notice shall have been filed, March 31st of each year thereafter (or,
in either case, such earlier date as may be required by the Exchange Act), the
Trustee shall, subject to the provisions of this Section 11.04, file a Form
10-K, with respect to the Trust Fund. The Trustee shall prepare and file on
behalf of the Trust Fund a Form 10-K, in form and substance as required by the
Exchange Act. The Trustee shall prepare each Form 10-K and, no later than 5
Business Days prior to the date on which such Form 10-K is required to be filed,
deliver a copy of such Form 10-K to the Depositor for review. No later than the
Business Day following the receipt thereof, the Depositor shall notify the
Trustee of any changes to be made to the Form 10-K. The Trustee shall make any
changes thereto requested by the Depositor and deliver the final Form 10-K to
the Depositor for signature no later than three Business Days prior to the date
on which such Form 10-K must be filed by the Trustee in accordance with this
Section 11.04. The Depositor shall execute the final Form
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10-K and deliver the same to the Trustee via electronic mail
(▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇.▇▇▇) or facsimile no later than Business Day following
receipt of the same (which, unless not received within such time frame from
the Trustee, shall be no later than two Business Days prior to the date on
which the From 10-K is required to be filed), with an original executed hard
copy to follow by overnight mail. Such Form 10-K shall include the Assessment
of Compliance, Attestation Report, Annual Compliance Statements and other
documentation provided by the Servicer pursuant to Sections 3.17 and 11.07, a
certification in the form attached hereto as Exhibit O-1 (the "Depositor
Certification"), which shall be signed by the senior officer of the Depositor
in charge of securitization, and an accountant's report described under
Section 11.07. Each Form 10-K shall also include any ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Certification required to be included therewith, as described in Section
11.05.
If the Item 1119 Parties listed on Exhibit T have changed since the
Closing Date, no later than March 1 of each year, the Depositor shall provide
each of the Servicer and the Trustee via electronic mail
(▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇.▇▇▇) with an updated Exhibit T setting forth the Item
1119 Parties.
As to each item of information required to be included in any Form
10-D, Form 8-K or Form 10-K, the Trustee's or Depositor's obligation to
include the information in the applicable report is subject to receipt from
the entity that is indicated in Exhibit Q as the responsible party for
providing that information, if other than the Trustee or the Depositor, as
applicable, as and when required as described above. Each of the Trustee, the
Servicer and the Depositor, as applicable, hereby agree to notify and provide
to the Trustee and the Depositor all information that is required to be
included in any Form 10-D, Form 8-K or Form 10-K, with respect to which that
entity is indicated in Exhibit Q as the responsible party for providing that
information. In the case of information to be included in the From 10-D, such
information shall be delivered to the Trustee (with a copy to the Depositor)
no later than no later than 5 calendar days following each Distribution Date.
In the case of information to be included in the Form 8-K, such information
shall be delivered to the Depositor no later than no later 2 Business Days
following the occurrence of a reportable event. In the case of information to
be included in the From 10-K, such information, other than the documentation
provided pursuant to Sections 3.17 and 11.07, shall be delivered to the
Trustee no later than (x) March 1, 2008 (with a 15 day cure period) and (y)
unless and until a Form 15 Suspension Notice shall have been filed, March 1st
of each year thereafter. The Servicer shall be responsible for determining the
pool concentration applicable to any subservicer or originator at any time,
for purposes of disclosure as required by Items 1117 and 1119 of Regulation
AB. The Trustee shall provide electronic or paper copies of all Form 10-D, 8-K
and 10-K filings free of charge to any Certificateholder upon request.
The Trustee shall sign a certification (in the form attached hereto as
Exhibit O-2) for the benefit of the Depositor and its officers, directors and
Affiliates. The Trustee's certification shall be delivered to the Depositor by
no later than March 18th of each year (or if such day is not a Business Day, the
immediately preceding Business Day) and the Depositor shall deliver the
Depositor Certification to the Trustee for filing no later than March 20th of
each year (or if such day is not a Business Day, the immediately preceding
Business Day).
The Trustee shall indemnify and hold harmless the Depositor and its
officers, directors and Affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments and other costs and expenses arising out of or based upon (i)
a breach of the Trustee's obligations under this Section 11.04 and Section
11.07 or (ii) any material misstatement or omission contained in any
information provided by the Trustee including, without limitation, in the
certification provided by the Trustee in the form of Exhibit O-2 or the
assessment of compliance provided pursuant to Section 11.07. If the
indemnification provided for herein is unavailable or insufficient to hold
harmless the Depositor, then the Trustee, in connection with (i) a breach of
the Trustee's obligations under this Section 11.04 or Section 11.07 or (ii)
any material misstatement or omission contained in any information provided by
the Trustee including, without limitation, in the
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certification provided by the Trustee in the form of Exhibit O-2, or in the
assessment of compliance or attestation report provided pursuant to Section
11.07, agrees that it shall contribute to the amount paid or payable by the
Depositor as a result of the losses, claims, damages or liabilities of the
Depositor in such proportion as is appropriate to reflect the relative fault of
the Depositor on the one hand and the Trustee on the other. This indemnification
shall survive the termination of this Agreement or the termination of any party
to this Agreement.
The Servicer shall indemnify and hold harmless the Depositor, the
Trustee and their respective officers, directors and Affiliates from and
against any actual losses, damages, penalties, fines, forfeitures, reasonable
and necessary legal fees and related costs, judgments and other costs and
expenses that such Person may sustain based upon (i) a breach of the
Servicer's obligations under Sections 3.17, 11.07 or 11.04 or (ii) any
material misstatement or omission contained in any information provided by the
Servicer including, without limitation, in the information provided pursuant
to Sections 3.17 and 11.07. This indemnification shall survive the termination
of this Agreement or the termination of any party to this Agreement.
The Depositor shall indemnify and hold harmless the Servicer, the
Trustee and their respective officers, directors and Affiliates from and against
any actual losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments and other costs and expenses
that such Person may sustain based upon (i) a breach of the Depositor's
obligations under this Section 11.04 or (ii) any material misstatement or
omission contained in any information provided by the Depositor.
The Trustee will have no duty or liability to verify the accuracy or
sufficiency of any information not prepared by it included in any Form 10-D,
Form 10-K or Form 8-K. The Trustee shall have no liability with respect to any
failure to properly prepare or file any Form 10-D or Form 10-K resulting from
or relating to the Trustee's inability or failure to receive any information
in a timely manner from the party responsible for delivery of such
information. The Trustee shall have no liability with respect to any failure
to properly file any Form 10-D or 10-K resulting from or relating to the
Depositor's failure to timely comply with the provisions of this section.
Nothing herein shall be construed to require the Trustee or any officer,
director or Affiliate thereof to sign any Form 10-D, Form 10-K or Form 8-K.
Copies of all reports filed by the Trustee under the Exchange Act shall be
sent to the Depositor electronically or at the address set forth in Section
10.05. Fees and expenses incurred by the Trustee in connection with this
Section 11.04 shall not be reimbursable from the Trust Fund.
Upon any filing with the Commission, the Trustee shall promptly deliver
to the Depositor a copy of any executed report, statement or information.
To the extent that, following the Closing Date, the Depositor certifies
that reports and certifications differing from those required under this Section
11.04 are necessary to comply with the reporting requirements under the Exchange
Act, the parties hereto hereby agree that each will reasonably cooperate to
amend the provisions of this Section 11.04 in order to comply with such amended
reporting requirements and such amendment of this Section 11.04. Any such
amendment may result in the reduction of the reports executed by and filed on
behalf of the Depositor under the Exchange Act. Notwithstanding the foregoing,
the Trustee shall not be obligated to enter into any amendment pursuant to this
Section that adversely affects its obligations and immunities under this
Agreement.
Each of the parties acknowledges and agrees that the purpose of
Sections 3.17, 11.07 and this Section 11.04 of this Agreement is to facilitate
compliance by the Depositor with the provisions of Regulation AB. Therefore,
each of the parties agree that (a) the obligations of the parties hereunder
shall be interpreted in such a manner as to accomplish that purpose, (b) the
parties' obligations hereunder will be supplemented and modified as necessary to
be consistent with any such amendments, interpretive
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advice or guidance in respect of the requirements of Regulation AB, (c) the
parties shall comply with reasonable requests made by the Depositor for
delivery of additional or different information as the Depositor may determine
in good faith is necessary to comply with the provisions of Regulation AB, and
(d) no amendment of this Agreement shall be required to effect any such
changes in the parties' obligations as are necessary to accommodate evolving
interpretations of the provisions of Regulation AB.
Section 11.05 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification.
Each Form 10-K shall include a certification (the "▇▇▇▇▇▇▇▇-▇▇▇▇▇
Certification") required by Rules 13a-14(d) and 15d-14(d) under the Exchange Act
(pursuant to Section 302 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and
regulations of the Commission promulgated thereunder (including any
interpretations thereof by the Commission's staff)). No later than March 15 of
each year, beginning in 2008, the Servicer and the Trustee shall (unless such
person is the Certifying Person), and the Servicer shall cause each Reporting
Subcontractor and the Trustee shall cause each Reporting Subcontractor to,
provide to the Person who signs the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification (the
"Certifying Person") a certification (each, a "Performance Certification"), in
the form attached hereto as Exhibit R on which the Certifying Person, the entity
for which the Certifying Person acts as an officer, and such entity's officers,
directors and Affiliates (collectively with the Certifying Person,
"Certification Parties") can reasonably rely. The senior officer in charge of
the servicing function of the Servicer shall serve as the Certifying Person on
behalf of the Trust Fund. Neither the Servicer nor the Depositor will request
delivery of a certification under this clause unless the Trustee is required
under the Exchange Act to file an annual report on Form 10-K with respect to the
Trust Fund. In the event that prior to the filing date of the Form 10-K in March
of each year, the Servicer or the Depositor has actual knowledge of information
material to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification, the Servicer or the Depositor, as
the case may be, shall promptly notify the Servicer and the Trustee. The
respective parties hereto agree to cooperate with all reasonable requests made
by any Certifying Person or Certification Party in connection with such Person's
attempt to conduct any due diligence that such Person reasonably believes to be
appropriate in order to allow it to deliver any ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification or
portion thereof with respect to the Trust Fund.
Section 11.06 Form 15 Filing.
Prior to January 30 of the first year in which the Depositor is able to
do so under applicable law, the Trustee on behalf of the Depositor shall file a
Form 15 relating to the automatic suspension of reporting in respect of the
Trust Fund under the Exchange Act.
Section 11.07 Report on Assessment of Compliance and Attestation.
(a) On or before March 15 of each calendar year, commencing
in 2008, unless no reporting obligation under the Exchange Act
exists at such time with respect to the Trust Fund:
(i) The Servicer shall deliver to the Trustee (with a copy to
the Depositor) and the Servicer a report (in form and substance
reasonably satisfactory to the Trustee) regarding the Servicer's or
the Trustee's, as applicable, assessment of compliance with the
Servicing Criteria during the immediately preceding calendar year, as
required under Rules 13a-18 and 15d-18 of the Exchange Act and Item
1122 of Regulation AB. Such report shall be signed by an authorized
officer of such Person and shall address each of the Servicing
Criteria applicable to each party specified on a certification
delivered to the Trustee substantially in the form of Exhibit S. To
the extent any of the Servicing Criteria are not applicable to such
Person, with respect to asset-backed securities transactions taken as
a whole involving such Person and that are backed by the same asset
type backing the Certificates, such report shall include such a
107
statement to that effect. The Trustee and the Servicer, and each
of their respective officers and directors shall be entitled to
rely upon each such servicing criteria assessment.
(ii) The Servicer shall deliver to the Trustee, and the
Trustee shall provide on its own behalf, a report of a registered
public accounting firm reasonably acceptable to the Trustee that
attests to, and reports on, the assessment of compliance made by
Servicer or the Trustee, as applicable, and delivered pursuant to
the preceding paragraphs. Such attestation shall be in accordance
with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the
Securities Act and the Exchange Act, including, without limitation
that in the event that an overall opinion cannot be expressed,
such registered public accounting firm shall state in such report
why it was unable to express such an opinion. Such report must be
available for general use and not contain restricted use language.
To the extent any of the Servicing Criteria are not applicable to
such Person, with respect to asset-backed securities transactions
taken as a whole involving such Person and that are backed by the
same asset type backing the Certificates, such report shall
include such a statement to that effect.
(iii) The Servicer shall cause each Reporting Subcontractor to
deliver to the Trustee (with a copy to the Depositor) an assessment
of compliance and accountant's attestation as and when provided in
paragraphs (a) and (b) of this Section 11.07.
(iv) The Trustee shall cause each Reporting Subcontractor to
deliver to the Trustee (with a copy to the Depositor) and the
Servicer an assessment of compliance and accountant's attestation as
and when provided in paragraphs (a) and (b) of this Section.
(v) The Servicer shall execute (and the Servicer shall cause
each Reporting Subcontractor to execute) a reliance certificate to
enable the Certification Parties to rely upon each (A) annual
compliance statement provided pursuant to Section 3.17, (B) annual
report on assessments of compliance with servicing criteria
provided pursuant to this Section 11.07 and (C) accountant's
report provided pursuant to this Section 11.07 and shall include a
certification that each such annual compliance statement or report
discloses any deficiencies or defaults described to the registered
public accountants of such Person to enable such accountants to
render the certificates provided for in this Section 11.07.
(vi) The Trustee shall execute (and the Trustee shall cause
each Reporting Subcontractor to execute) a reliance certificate to
enable the Certification Parties to rely upon each (A) annual
report on assessments of compliance with servicing criteria
provided pursuant to this Section 11.07 and (C) accountant's
report provided pursuant to this Section 11.07 and shall include a
certification that each such report discloses any deficiencies or
defaults described to the registered public accountants of such
Person to enable such accountants to render the certificates
provided for in this Section 11.07.
(b) In the event the Servicer, the Trustee or Reporting Subcontractor
is terminated or resigns during the term of this Agreement, such Person shall
provide documents and information required by this Section 11.07 with respect
to the period of time it was subject to this Agreement or provided services
with respect to the Trust Fund, the Certificates or the Mortgage Loans.
(c) An assessment of compliance provided by a Subcontractor pursuant
to Section 11.07(a)(iii) or (iv) need not address any elements of the
Servicing Criteria other than those specified by the Servicer or the Trustee,
as applicable, pursuant to Section 11.07(a)(i).
108
Section 11.08 Use of Subcontractors.
(a) [Reserved].
(b) It shall not be necessary for the Servicer or the
Trustee to seek the consent of the Depositor or any other party
hereto to the utilization of any Subcontractor. The Servicer or
the Trustee, as applicable, shall promptly upon request provide to
the Trustee and the Depositor (or any designee of the Depositor,
such as the Servicer or administrator) a written description (in
form and substance satisfactory to the Depositor) of the role and
function of each Subcontractor utilized by such Person, specifying
(i) the identity of each such Subcontractor, (ii) which (if any)
of such Subcontractors are "participating in the servicing
function" within the meaning of Item 1122 of Regulation AB, and
(iii) which elements of the Servicing Criteria will be addressed
in assessments of compliance provided by each Subcontractor
identified pursuant to clause (ii) of this paragraph.
As a condition to the utilization of any Subcontractor determined to be
a Reporting Subcontractor, the Servicer or the Trustee, as applicable, shall
cause any such Subcontractor used by such Person for the benefit of the
Depositor to comply with the provisions of Sections 11.07 and 11.09 of this
Agreement to the same extent as if such Subcontractor were the Servicer (except
with respect to the Servicer's duties with respect to preparing and filing any
Exchange Act Reports or as the Certifying Person) or the Trustee, as applicable.
The Servicer or the Trustee, as applicable, shall be responsible for obtaining
from each Subcontractor and delivering to the Trustee and the Servicer, any
assessment of compliance and attestation required to be delivered by such
Subcontractor under Section 11.05 and Section 11.07, in each case as and when
required to be delivered.
Section 11.09 Amendments.
In the event the parties to this Agreement desire to further clarify or
amend any provision of this Article 11, this Agreement shall be amended to
reflect the new agreement between the parties covering matters in this Article
11 pursuant to Section 10.01, which amendment shall not require any Opinion of
Counsel or Rating Agency confirmations or the consent of any Certificateholder.
If, during the period that the Depositor is required to file Exchange
Act Reports with respect to the Trust Fund, the Servicer is no longer an
Affiliate of the Depositor, the Depositor shall assume the obligations and
responsibilities of the Servicer in this Article 11 with respect to the
preparation and filing of the Exchange Act Reports and/or acting as the
Certifying Person, if the Depositor has received indemnity from such successor
Servicer satisfactory to the Depositor, and such Servicer has agreed to provide
a ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification to the Depositor substantially in the form of
Exhibit U.
* * * * * *
109
IN WITNESS WHEREOF, the Depositor, the Trustee, and the Seller and
Servicer have caused their names to be signed hereto by their respective
officers thereunto duly authorized as of the day and year first above written.
INDYMAC MBS, INC.
as Depositor
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Associate
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Associate
INDYMAC BANK, F.S.B.
as Seller and Servicer
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ )
: ss.:
COUNTY OF Los Angeles )
On this 30th day of January, 2007, before me, personally appeared ▇▇▇▇
▇▇▇▇▇▇▇▇, known to me to be a Vice President of IndyMac MBS, Inc., one of the
entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of said entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Notary Public
[NOTARIAL SEAL]
1
STATE OF CALIFORNIA )
: ss.:
COUNTY OF Orange )
On this 26th day of January, 2007, before me, personally appeared
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇, known to me to be an Associate and an
Associate, respectively, of Deutsche Bank National Trust Company, one of the
entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of said entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇
Notary Public
[NOTARIAL SEAL]
2
STATE OF CALIFORNIA )
: ss.:
COUNTY OF Los Angeles )
On this 30th day of January, 2007, before me, personally appeared ▇▇▇▇
▇▇▇▇▇▇▇▇, known to me to be a Vice President of IndyMac Bank, F.S.B., one of the
entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of said entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Notary Public
[NOTARIAL SEAL]
3
Schedule I
MORTGAGE LOAN SCHEDULE [DELIVERED AT CLOSING TO TRUSTEE]
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Schedule II
INDYMAC MBS, INC. MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-A
Representations and Warranties of the Seller/Servicer
Indy Mac Bank, F.S.B. ("IndyMac") hereby makes the representations and
warranties set forth in this Schedule II to the Depositor and the Trustee, as of
the Closing Date. Capitalized terms used but not otherwise defined in this
Schedule II shall have the meanings assigned thereto in the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement") relating to the
above-referenced Series, among IndyMac, as seller and Servicer, IndyMac MBS,
Inc., as depositor, and Deutsche Bank National Trust Company, as trustee.
(1) IndyMac is duly organized as a federally insured savings
bank and is validly existing and in good standing under the laws of the
United States of America and is duly authorized and qualified to
transact any business contemplated by the Pooling and Servicing
Agreement to be conducted by IndyMac in any state in which a Mortgaged
Property is located or is otherwise not required under applicable law
to effect such qualification and, in any event, is in compliance with
the doing business laws of any such state, to the extent necessary to
ensure its ability to enforce each Mortgage Loan, to service the
Mortgage Loans in accordance with the Pooling and Servicing Agreement
and to perform any of its other obligations under the Pooling and
Servicing Agreement in accordance with the terms thereof.
(2) IndyMac has the full corporate power and authority to sell
and service each Mortgage Loan, and to execute, deliver and perform,
and to enter into and consummate the transactions contemplated by the
Pooling and Servicing Agreement and has duly authorized by all
necessary corporate action on the part of IndyMac the execution,
delivery and performance of the Pooling and Servicing Agreement; and
the Pooling and Servicing Agreement, assuming the due authorization,
execution and delivery thereof by the other parties thereto,
constitutes a legal, valid and binding obligation of IndyMac,
enforceable against IndyMac in accordance with its terms, except that
(a) the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, receivership and other similar laws relating to
creditors' rights generally and (b) the remedy of specific performance
and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(3) The execution and delivery of the Pooling and Servicing
Agreement by IndyMac, the sale and servicing of the Mortgage Loans by
IndyMac under the Pooling and Servicing Agreement, the consummation of
any other of the transactions contemplated by the Pooling and Servicing
Agreement, and the fulfillment of or compliance with the terms thereof
are in the ordinary course of business of IndyMac and will not (A)
result in a material breach of any term or provision of the charter or
by-laws of IndyMac or (B) materially conflict with, result in a
material breach, violation or acceleration of, or result in a material
default under, any other material agreement or instrument to which
IndyMac is a party or by which it may be bound, or (C) constitute a
material violation of any statute, order or regulation applicable to
IndyMac of any court, regulatory body, administrative agency or
governmental body having jurisdiction over IndyMac (including the OTS,
the Federal Deposit Insurance Corporation or any other governmental
entity having regulatory authority over IndyMac); and IndyMac is not in
breach or violation of any material indenture or other material
agreement or instrument, or in violation of any statute, order or
regulation of any court, regulatory body, administrative agency or
S-II-1
governmental body having jurisdiction over it (including the OTS, the
Federal Deposit Insurance Corporation or any other governmental entity
having regulatory authority over IndyMac) which breach or violation may
materially impair IndyMac's ability to perform or meet any of its
obligations under the Pooling and Servicing Agreement.
(4) IndyMac is an approved servicer of conventional mortgage
loans for FNMA or FHLMC or is a mortgagee approved by the Secretary of
Housing and Urban Development pursuant to Sections 203 and 211 of the
National Housing Act.
(5) No litigation is pending or, to the best of IndyMac's
knowledge, threatened against IndyMac that would prohibit the execution
or delivery of, or performance under, the Pooling and Servicing
Agreement by IndyMac.
(6) IndyMac is a member of MERS in good standing, and will
comply in all material respects with the rules and procedures of MERS
in connection with the servicing of the MERS Mortgage Loans for as long
as such Mortgage Loans are registered with MERS.
S-II-2
Schedule III
INDYMAC MBS, INC.
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-A
Representations and Warranties as to the Mortgage Loans
IndyMac Bank, F.S.B. ("IndyMac") hereby makes the representations and
warranties set forth in this Schedule III to the Depositor and the Trustee, as
of the Closing Date or if so specified in this Schedule III, as of the Cut-off
Date with respect to each Mortgage Loan. Capitalized terms used but not
otherwise defined in this Schedule III shall have the meanings assigned to them
in the Pooling and Servicing Agreement (the "Pooling and Servicing Agreement")
relating to the above-referenced Series, among IndyMac, as seller and Servicer,
IndyMac MBS, Inc., as depositor, and Deutsche Bank National Trust Company, as
trustee.
(1) The information set forth on Schedule I to the Pooling and
Servicing Agreement with respect to each Mortgage Loan is true and
correct in all material respects as of the Closing Date.
(2) All regularly scheduled monthly payments due with respect
to each Mortgage Loan up to and including the Due Date before the
Cut-off Date have been made; and as of the Cut-off Date, no Mortgage
Loan had a regularly scheduled monthly payment that was 60 or more days
Delinquent during the twelve months before the Cut-off Date.
(3) With respect to any Mortgage Loan that is not a
Cooperative Loan, each Mortgage is a valid and enforceable first lien
on the Mortgaged Property subject only to (a) the lien of nondelinquent
current real property taxes and assessments and liens or interests
arising under or as a result of any federal, state or local law,
regulation or ordinance relating to hazardous wastes or hazardous
substances and, if the related Mortgaged Property is a unit in a
condominium project or planned unit development, any lien for common
charges permitted by statute or homeowner association fees, (b)
covenants, conditions and restrictions, rights of way, easements and
other matters of public record as of the date of recording of such
Mortgage, such exceptions appearing of record being generally
acceptable to mortgage lending institutions in the area wherein the
related Mortgaged Property is located or specifically reflected in the
appraisal made in connection with the origination of the related
Mortgage Loan, and (c) other matters to which like properties are
commonly subject which do not materially interfere with the benefits of
the security intended to be provided by such Mortgage.
(4) Immediately before the assignment of the Mortgage Loans to
the Depositor, the Seller had good title to, and was the sole owner of,
each Mortgage Loan free and clear of any pledge, lien, encumbrance or
security interest and had full right and authority, subject to no
interest or participation of, or agreement with, any other party, to
sell and assign the same pursuant to the Pooling and Servicing
Agreement.
(5) As of the 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.
S-III-1
(7) There are no mechanics' liens or claims for work, labor or
material affecting any Mortgaged Property which are or may be a lien
prior to or equal with, the lien of such Mortgage, except those which
are insured against by the title insurance policy referred to in item
(11) below.
(8) No Mortgaged Property has been materially damaged by
water, fire, earthquake, windstorm, flood, tornado or similar casualty
(excluding casualty from the presence of hazardous wastes or hazardous
substances, as to which the Seller makes no representation) so as to
affect adversely the value of the related Mortgaged Property as
security for the Mortgage Loan.
(9) Each Mortgage Loan at origination complied in all material
respects with applicable local, state and federal laws and regulations,
including usury, equal credit opportunity, real estate settlement
procedures, truth-in-lending, and disclosure laws, or any noncompliance
does not have a material adverse effect on the value of the related
Mortgage Loan.
(10) The Seller has not modified the Mortgage in any material
respect (except that a Mortgage Loan may have been modified by a
written instrument which has been recorded or submitted for
recordation, if necessary, to protect the interests of the
Certificateholders and which has been delivered to the Trustee);
satisfied, cancelled or subordinated such Mortgage in whole or in part;
released the related Mortgaged Property in whole or in part from the
lien of such Mortgage; or executed any instrument of release,
cancellation, modification or satisfaction with respect thereto.
(11) A lender's policy of title insurance together with a
condominium endorsement and extended coverage endorsement, if
applicable, in an amount at least equal to the Cut-off Date Principal
Balance of each such Mortgage Loan or a commitment (binder) to issue
the same was effective on the date of the origination of each Mortgage
Loan and each such policy is valid and remains in full force and
effect.
(12) Each Mortgage Loan was originated (within the meaning of
Section 3(a)(41) of the Exchange Act) by an entity that satisfied at
the time of origination the requirements of Section 3(a)(41) of the
Exchange Act.
(13) All of the improvements which were included for the
purpose of determining the Appraised Value of the Mortgaged Property
lie wholly within the boundaries and building restriction lines of such
property, and no improvements on adjoining properties encroach upon the
Mortgaged Property, unless such failure to be wholly within such
boundaries and restriction lines or such encroachment, as the case may
be, does not have a material effect on the value of the Mortgaged
Property.
(14) As of the date of origination of each Mortgage Loan, no
improvement located on or being part of the Mortgaged Property is in
violation of any applicable zoning law or regulation unless such
violation would not have a material adverse effect on the value of the
related Mortgaged Property. All inspections, licenses and certificates
required to be made or issued with respect to all occupied portions of
the Mortgaged Property and, with respect to the use and occupancy of
the same, including certificates of occupancy and fire underwriting
certificates, have been made or obtained from the appropriate
authorities, unless the lack thereof would not have a material adverse
effect on the value of the Mortgaged Property.
(15) The Mortgage Note and the related Mortgage are genuine,
and each is the legal, valid and binding obligation of the maker
thereof, enforceable in accordance with its terms and under applicable
law.
S-III-2
(16) The proceeds of the Mortgage Loan have been fully
disbursed and there is no requirement for future advances thereunder.
(17) The related Mortgage contains customary and enforceable
provisions which render the rights and remedies of the holder thereof
adequate for the realization against the Mortgaged Property of the
benefits of the security, including, (i) in the case of a Mortgage
designated as a deed of trust, by trustee's sale, and (ii) otherwise by
judicial foreclosure.
(18) With respect to each Mortgage constituting a deed of
trust, a trustee, duly qualified under applicable law to serve as such,
has been properly designated and currently so serves and is named in
such Mortgage, and no fees or expenses are or will become payable by
the Certificateholders to the trustee under the deed of trust, except
in connection with a trustee's sale after default by the Mortgagor.
(19) At the Closing Date, the improvements upon each Mortgaged
Property are covered by a valid and existing hazard insurance policy
with a generally acceptable carrier that provides for fire and extended
coverage and coverage for such other hazards as are customarily
required by institutional single family mortgage lenders in the area
where the Mortgaged Property is located, and the Seller has received no
notice that any premiums due and payable thereon have not been paid;
the Mortgage obligates the Mortgagor thereunder to maintain all such
insurance including flood insurance at the Mortgagor's cost and
expense. Anything to the contrary in this item (19) notwithstanding, no
breach of this item (19) shall be deemed to give rise to any obligation
of the Seller to repurchase or substitute for such affected Mortgage
Loan or Loans so long as the Servicer maintains a blanket policy
pursuant to the second paragraph of Section 3.10(a) of the Pooling and
Servicing Agreement.
(20) If at the time of origination of each Mortgage Loan, the
related Mortgaged Property was in an area then identified in the
Federal Register by the Federal Emergency Management Agency as having
special flood hazards, a flood insurance policy in a form meeting the
then-current requirements of the Flood Insurance Administration is in
effect with respect to the Mortgaged Property with a generally
acceptable carrier.
(21) There is no proceeding pending or threatened for the
total or partial condemnation of any Mortgaged Property, nor is such a
proceeding currently occurring.
(22) There is no material event which, with the passage of
time or with notice and the expiration of any grace or cure period,
would constitute a material non-monetary default, breach, violation or
event of acceleration under the Mortgage or the related Mortgage Note;
and the Seller has not waived any material non-monetary default,
breach, violation or event of acceleration.
(23) Each Mortgage File contains an appraisal of the related
Mortgaged Property in a form acceptable to FNMA or FHLMC.
(24) Any leasehold estate securing a Mortgage Loan has a
stated term 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.
S-III-3
(26) None of the Mortgage Loans are Cooperative Loans.
(27) The PO Percentage of the Stated Principal Balances of the
Discount Mortgage Loans does not exceed $1,265,942.
(28) None of the Mortgage Loans is a "high cost" loan,
"covered" loan or any other similarly designated loan as defined under
any state, local or federal law, as defined by applicable predatory and
abusive lending laws.
(29) No Mortgage Loan is a "High-Cost Home Loan" as defined in
the New Jersey Home Ownership Act effective November 27, 2003 (N.J.S.A.
46:10B-22 et seq.).
(30) No Mortgage Loan is a "High-Cost Home Loan" as defined in
the New Mexico Home Loan Protection Act effective January 1, 2004 (N.M.
Stat. ▇▇▇. ▇▇.▇▇. 58-21A-1 et seq.).
(31) Each Mortgage Loan has been underwritten and serviced
substantially in accordance with the Seller's guidelines, subject to
such variances as are reflected on the Mortgage Loan Schedule or that
the Seller has approved.
(32) No Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable (as such terms are defined in the then-current version of
Standard & Poor's LEVELS(R) Glossary, which is now Version 5.7 Revised,
Appendix E) and no Mortgage Loan originated on or after October 1, 2002
through March 6, 2003 is governed by the Georgia Fair Lending Act
(Exclusion Representation).
(33) The Pooling and Servicing Agreement creates a valid and
continuing "security interest" (as defined in Section 1-201(37) of the
UCC) in each Mortgage Note in favor of the Trustee, which security
interest is prior to all other liens and is enforceable as such against
creditors of and purchasers from the Depositor. Each Mortgage Note
constitutes "promissory notes" (as defined in Section 9-102(a)(65) of
the UCC). Immediately before the assignment of each Mortgage Note to
the Trustee, the Depositor had good and marketable title to such
Mortgage Note free and clear of any lien, claim, encumbrance of any
Person. All original executed copies of each Mortgage Note have been or
shall be delivered to the Trustee within five Business Days following
the Closing Date. Other than the security interest granted to the
Trustee, the Depositor has not pledged, assigned, sold, granted a
security interest in, or otherwise conveyed any Mortgage Note. The
Depositor has not authorized the filing of and is not aware of any
financing statements against the Depositor that include a description
of any of the Mortgage Notes. The Depositor is not aware of any
judgment or tax liens filed against the Depositor. None of the Mortgage
Notes has any marks or notations indicating that they have been
pledged, assigned or otherwise conveyed to any Person other than the
Trustee.
(34) To the best of seller's knowledge, there was no fraud
involved in the origination of any Mortgage Loan by the mortgagee or by
the Mortgagor, any appraiser or any other party involved in the
origination of the Mortgage Loan
(35) No Mortgage Loan is a "High-Cost Home Mortgage Loan" as
defined in the Massachusetts Predatory Home Loan Practices Act
effective November 7, 2004 (Mass. Gen. Laws ch. 183C).
S-III-4
(36) Each Mortgage Loan at the time it was made complied in
all material respects with applicable local, state, and federal laws,
including, but not limited to, all applicable predatory and abusive
lending laws.
S-III-5
Schedule IV
[Reserved]
S-IV-1
Schedule V
Form of Monthly Report
[On File With Trustee]
S-V-1
EXHIBIT A
[FORM OF SENIOR CERTIFICATE (OTHER THAN NOTIONAL AMOUNT CERTIFICATES)]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[UNTIL THIS CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING
UNDERWRITING, NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE
TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A
REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AND IS NOT
INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF AN EMPLOYEE BENEFIT PLAN SUBJECT
TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR AN OPINION OF COUNSEL IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, UNTIL THIS CERTIFICATE HAS
BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING, 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.]
SO LONG AS THE CORRIDOR CONTRACT IS IN EFFECT, NO TRANSFER OF THIS
CERTIFICATE SHALL BE MADE UNLESS THE TRUSTEE SHALL HAVE RECEIVED A
REPRESENTATION LETTER FROM THE TRANSFEREE OF THIS CERTIFICATE TO THE EFFECT
THAT EITHER (I) SUCH TRANSFEREE IS NEITHER AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT WHICH IS SUBJECT TO SECTION 406 OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, AND/OR SECTION 4975 OF THE
CODE OR ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE SUCH PLAN'S OR
ARRANGEMENT'S ASSETS BY REASON OF THEIR INVESTMENT IN THE ENTITY (A "PLAN")
NOR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH
PLAN TO EFFECT SUCH TRANSFER OR (II) THE ACQUISITION AND HOLDING OF THIS
CERTIFICATE ARE ELIGIBLE FOR EXEMPTIVE RELIEF UNDER PROHIBITED TRANSACTION
CLASS EXEMPTION ("PTCE") ▇▇-▇▇, ▇▇▇▇ ▇▇-▇, ▇▇▇▇ ▇▇-▇▇, ▇▇▇▇ ▇▇-▇▇, ▇▇▇▇ 96-23
OR THE SERVICE PROVIDER EXEMPTION PROVIDED UNDER SECTION 408(B)(17) OF ERISA
AND SECTION 4975(D)(20) OF THE CODE. ANY PURPORTED TRANSFER OF THIS
CERTIFICATE PRIOR TO THE TERMINATION OF THE SUPPLEMENTAL
A-1
INTEREST TRUST TO OR ON BEHALF OF A PLAN WITHOUT THE DELIVERY TO THE TRUSTEE
OF A REPRESENTATION LETTER AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
IF THIS CERTIFICATE IS A BOOK-ENTRY CERTIFICATE, THE TRANSFEREE WILL BE DEEMED
TO HAVE MADE A REPRESENTATION AS PROVIDED IN CLAUSE (I) OR (II) OF THIS
PARAGRAPH, AS APPLICABLE.]
[SO LONG AS THE CORRIDOR CONTRACT IS IN EFFECT, NO TRANSFER OF AN
LIBOR CERTIFICATE (OTHER THAN A TRANSFER OF A LIBOR CERTIFICATE TO AN
AFFILIATE OF THE DEPOSITOR (EITHER DIRECTLY OR THROUGH A NOMINEE) IN
CONNECTION WITH THE INITIAL ISSUANCE OF THE CERTIFICATES) SHALL BE MADE UNLESS
THE TRUSTEE SHALL HAVE RECEIVED EITHER (I) A REPRESENTATION FROM THE
TRANSFEREE OF SUCH LIBOR CERTIFICATE ACCEPTABLE TO AND IN FORM AND SUBSTANCE
SATISFACTORY TO THE TRUSTEE TO THE EFFECT THAT SUCH TRANSFEREE IS NOT A PLAN,
OR (II) A REPRESENTATION THAT THE PURCHASE AND HOLDING OF THE LIBOR
CERTIFICATE SATISFY THE REQUIREMENTS FOR EXEMPTIVE RELIEF UNDER ▇▇▇▇ ▇▇-▇▇,
▇▇▇▇ ▇▇-▇, ▇▇▇▇ ▇▇-▇▇, ▇▇▇▇ ▇▇-▇▇, ▇▇▇▇ 96-23 OR THE SERVICE PROVIDER
EXEMPTION PROVIDED BY SECTION 408 (B)(17) OF ERISA AND SECTION 4975 (D)(20) OF
THE CODE OR A SIMILAR EXEMPTION. IN THE EVENT THAT SUCH A REPRESENTATION
LETTER IS NOT DELIVERED, ONE OF THE FOREGOING REPRESENTATIONS, AS APPROPRIATE,
SHALL BE DEEMED TO HAVE BEEN MADE BY THE TRANSFEREE'S (INCLUDING AN INITIAL
ACQUIROR'S) ACCEPTANCE OF THE LIBOR CERTIFICATE. IN THE EVENT THAT SUCH
REPRESENTATION IS VIOLATED, SUCH TRANSFER OR ACQUISITION SHALL BE VOID AND OF
NO EFFECT.]
A-2
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Certificate Balance of this
Certificate ("Denomination") : $
Initial Certificate Balances of all
Certificates of this Class : $
CUSIP :
Interest Rate : %
Maturity Date :
INDYMAC MBS, INC.
Residential Asset Securitization Trust 2007-A1
Mortgage Pass-Through Certificates, Series 2007-A
Class [__]
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced Class
with respect to a Trust Fund consisting primarily of a pool of
conventional mortgage loans (the "Mortgage Loans") secured by
first liens on one- to four-family residential properties.
IndyMac MBS, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as
set forth herein or in the Agreement (defined below). Accordingly, the
Certificate Balance at any time may be less than the Certificate Balance as set
forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Seller, the Servicer or
the Trustee referred to below or any of their respective affiliates. Neither
this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that is the registered owner of the Percentage Interest
evidenced by this Certificate (obtained by dividing the denomination of this
Certificate by the aggregate Initial Certificate Balances of all Certificates of
the Class to which this Certificate belongs) in certain monthly distributions
with respect to a Trust Fund consisting primarily of the Mortgage Loans
deposited by IndyMac MBS, Inc. (the "Depositor"). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date
specified above (the "Agreement") among the Depositor, IndyMac Bank, F.S.B., as
seller (in such capacity, the "Seller") and as Servicer (in such capacity, the
"Servicer"), and Deutsche Bank National Trust Company, as trustee and
supplemental interest trustee (the "Trustee"). To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
A-2
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
A-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By ______________________
Countersigned:
By ___________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
A-4
EXHIBIT B
[FORM OF SUBORDINATED CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN
CERTIFICATES AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
[THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.]
[NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED
UNLESS THE TRANSFEREE REPRESENTS TO THE TRUSTEE THAT SUCH TRANSFEREE IS NOT AND
IS NOT INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF AN EMPLOYEE BENEFIT PLAN
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR, DELIVERS A
REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO
HEREIN, OR DELIVERS TO THE TRUSTEE AN OPINION OF COUNSEL IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO
THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF
OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO SECTION 4975 OF THE CODE
WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE
SHALL BE VOID AND OF NO EFFECT.]
B-1
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Certificate Balance of this
Certificate ("Denomination") : $
Initial Certificate Balances of all
Certificates of this Class : $
CUSIP :
INDYMAC MBS, INC.
Residential Asset Securitization Trust 2007-A1
Mortgage Pass-Through Certificates, Series 2007-A
Class [___]
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced Class
with respect to a Trust Fund consisting primarily of a pool of
conventional mortgage loans (the "Mortgage Loans") secured by
first liens on one- to four-family residential properties.
IndyMac MBS, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as set forth
herein or in the Agreement (defined below). Accordingly, the Certificate Balance
at any time may be less than the Certificate Balance as set forth herein. This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Seller, the Servicer or the Trustee referred to
below or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
This certifies that is the registered owner of the Percentage Interest evidenced
by this Certificate (obtained by dividing the denomination of this Certificate
by the aggregate Initial Certificate Balances of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions with respect to a Trust Fund consisting primarily of the Mortgage
Loans deposited by IndyMac MBS, Inc. (the "Depositor"). The Trust Fund was
created pursuant to a Pooling and Servicing Agreement dated as of the Cut-off
Date specified above (the "Agreement") among the Depositor, IndyMac Bank,
F.S.B., as seller (in such capacity, the "Seller"), and as Servicer (in such
capacity, the "Servicer"), and Deutsche Bank National Trust Company, as trustee
and supplemental interest trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
[No transfer of a Certificate of this Class shall be made unless such transfer
is made pursuant to an effective registration statement under the Securities Act
and any applicable state securities laws or is
B-2
exempt from the registration requirements under said Act and such laws. In the
event that a transfer is to be made in reliance upon an exemption from the
Securities Act and such laws, in order to assure compliance with the
Securities Act and such laws, the Certificateholder desiring to effect such
transfer and such Certificateholder's prospective transferee shall each
certify to the Trustee in writing the facts surrounding the transfer. In the
event that such a transfer is to be made within three years from the date of
the initial issuance of Certificates pursuant hereto, there shall also be
delivered (except in the case of a transfer pursuant to Rule 144A of the
Securities Act) to the Trustee an Opinion of Counsel that such transfer may be
made pursuant to an exemption from the Securities Act and such state
securities laws, which Opinion of Counsel shall not be obtained at the expense
of the Trustee, the Seller, the Servicer or the Depositor. The Holder hereof
desiring to effect such transfer shall, and does hereby agree to, indemnify
the Trustee and the Depositor against any liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and
state laws.]
[No transfer of a Certificate of this Class shall be made unless the Trustee
shall have received either (i) a representation [letter] from the transferee of
such Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan or
other benefit plan subject to Section 406 of ERISA or Section 4975 of the Code,
nor a person acting on behalf of or investing plan assets of any such plan,
which representation letter shall not be an expense of the Trustee or the
Servicer, (ii) if the purchaser is an insurance company, a representation that
the purchaser is an insurance company which is purchasing such Certificates with
funds contained in an "insurance company general account" (as such term is
defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE
95-60")) and that the purchase and holding of such Certificates are covered
under Sections I and III of PTCE 95-60 or (iii) in the case of any such
Certificate presented for registration in the name of an employee benefit plan
subject to ERISA or Section 4975 of the Code (or comparable provisions of any
subsequent enactments), or a trustee of any such plan or any other person acting
on behalf of any such plan, an Opinion of Counsel satisfactory to the Trustee to
the effect that the purchase or holding of such Certificate will not result in a
nonexempt prohibited transaction under ERISA or Section 4975 of the Code and
will not subject the Trustee or the Servicer to any obligation in addition to
those undertaken in the Agreement, which Opinion of Counsel shall not be an
expense of the Trustee, the Servicer or the Trust Fund. Notwithstanding anything
else to the contrary herein, any purported transfer of a Certificate of this
Class to or on behalf of an employee benefit plan subject to ERISA or to Section
4975 of the Code without the opinion of counsel satisfactory to the Trustee as
described above shall be void and of no effect.]
Reference is hereby made to the further provisions of this Certificate set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement or be
valid for any purpose unless manually countersigned by an authorized signatory
of the Trustee.
B-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By ______________________
Countersigned:
By ___________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
B-3
EXHIBIT C
[FORM OF CLASS A-R CERTIFICATE]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED
UNLESS THE PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED
UNLESS THE TRANSFEREE REPRESENTS TO THE TRUSTEE THAT SUCH TRANSFEREE IS NOT AND
IS NOT INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF AN EMPLOYEE BENEFIT PLAN
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR, IF SUCH PURCHASER
IS AN INSURANCE COMPANY, DELIVERS A REPRESENTATION IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN, OR DELIVERS TO THE TRUSTEE AN
OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED
TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED
TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT
TO ERISA OR TO SECTION 4975 OF THE CODE WITHOUT THE OPINION OF COUNSEL
SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
C-1
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Certificate Balance of this
Certificate ("Denomination") : $
Initial Certificate Balances of all
Certificates of this Class : $
CUSIP :
INDYMAC MBS, INC.
Residential Asset Securitization Trust 2007-A1
Mortgage Pass-Through Certificates, Series 2007-A
evidencing the distributions allocable to the Class
A-R Certificates with respect to a Trust Fund consisting
primarily of a pool of conventional mortgage loans (the
"Mortgage Loans") secured by first liens on one- to
four-family residential properties.
IndyMac MBS, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as set forth
herein or in the Agreement (defined below). Accordingly, the Certificate Balance
at any time may be less than the Certificate Balance as set forth herein. This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Seller, the Servicer or the Trustee referred to
below or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
This certifies that is the registered owner of the Percentage Interest (obtained
by dividing the denomination of this Certificate by the aggregate Initial
Certificate Balances of the denominations of all Certificates of the Class to
which this Certificate belongs) in certain monthly distributions with respect to
a Trust Fund consisting of the Mortgage Loans deposited by IndyMac MBS, Inc.
(the "Depositor"). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement") among the Depositor, IndyMac Bank, F.S.B., as seller (in such
capacity, the "Seller") and as Servicer (in such capacity, the "Servicer"), and
Deutsche Bank National Trust Company, as trustee and supplemental interest
trustee (the "Trustee"). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the Trust Fund will
be made only upon presentment and surrender of this Class A-R Certificate at the
Corporate Trust Office.
C-2
No transfer of a Class A-R Certificate shall be made unless the Trustee shall
have received either (i) a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or Section 4975 of the Code, nor a person
investing on behalf of or with plan assets of any such plan, which
representation letter shall not be an expense of the Trustee or the Servicer,
(ii) if the purchaser is an insurance company, a representation that the
purchaser is an insurance company which is purchasing such Certificate with
funds contained in an "insurance company general account" (as such term is
defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE
95-60")) and that the purchase and holding of such Certificate are covered under
Sections I and III of PTCE 95-60 or (iii) in the case of any such Certificate
presented for registration in the name of an employee benefit plan subject to
ERISA or Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee of any such plan or any other person acting on behalf
of any such plan, an Opinion of Counsel satisfactory to the Trustee and the
Servicer to the effect that the purchase or holding of such Class A-R
Certificate will not result in a nonexempt prohibited transaction under Section
406 of ERISA or Section 4975 of the Code and will not subject the Trustee or the
Servicer to any obligation in addition to those undertaken in the Agreement,
which Opinion of Counsel shall not be an expense of the Trustee, the Servicer or
the Trust Fund. 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 Section 4975 of the Code without the opinion of counsel satisfactory
to the Trustee as described above shall be void and of no effect.
Each Holder of this Class A-R Certificate will be deemed to have agreed to be
bound by the restrictions of the Agreement, including but not limited to the
restrictions that (i) each person holding or acquiring any Ownership Interest in
this Class A-R Certificate must be a Permitted Transferee, (ii) no Ownership
Interest in this Class A-R Certificate may be transferred without delivery to
the Trustee of (a) a transfer affidavit of the proposed transferee and (b) a
transfer certificate of the transferor, each of such documents to be in the form
described in the Agreement, (iii) each person holding or acquiring any Ownership
Interest in this Class A-R Certificate must agree to require a transfer
affidavit and to deliver a transfer certificate to the Trustee as required
pursuant to the Agreement, (iv) each person holding or acquiring an Ownership
Interest in this Class A-R Certificate must agree not to transfer an Ownership
Interest in this Class A-R Certificate if it has actual knowledge that the
proposed transferee is not a Permitted Transferee and (v) any attempted or
purported transfer of any Ownership Interest in this Class A-R Certificate in
violation of such restrictions will be absolutely null and void and will vest no
rights in the purported transferee.
Reference is hereby made to the further provisions of this Certificate set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement or be
valid for any purpose unless manually countersigned by an authorized signatory
of the Trustee.
C-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By ______________________
Countersigned:
By ___________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
C-4
EXHIBIT D
[FORM OF NOTIONAL AMOUNT CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[UNTIL THIS CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING
UNDERWRITING, NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE
TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A
REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AND IS NOT
INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF AN EMPLOYEE BENEFIT PLAN SUBJECT
TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR A PLAN
SUBJECT TO SECTION 4975 OF THE CODE, OR AN OPINION OF COUNSEL IN ACCORDANCE WITH
THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING
ELSE TO THE CONTRARY HEREIN, UNTIL THIS CERTIFICATE HAS BEEN THE SUBJECT OF AN
ERISA-QUALIFYING UNDERWRITING, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR
ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO SECTION 4975 OF THE
CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED
ABOVE SHALL BE VOID AND OF NO EFFECT.]
THIS CERTIFICATE HAS NO PRINCIPAL BALANCE AND IS NOT ENTITLED TO ANY
DISTRIBUTIONS IN RESPECT OF PRINCIPAL.
D-1
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Notional Amount of this
Certificate ("Denomination") : $
Initial Notional Amount of all
Certificates of this Class : $
CUSIP :
Interest Rate : %
Maturity Date :
INDYMAC MBS, INC.
Residential Asset Securitization Trust 2007-A1
Mortgage Pass-Through Certificates, Series 2007-A
Class [__]
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced Class
with respect to a Trust Fund consisting primarily of a pool of
conventional mortgage loans (the "Mortgage Loans") secured by
first liens on one- to four-family residential properties.
IndyMac MBS, Inc., as Depositor
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Seller, the Servicer or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
D-2
This certifies that __________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate Initial Notional Amounts of
all Certificates of the Class to which this Certificate belongs) in certain
monthly distributions with respect to a Trust Fund consisting primarily of the
Mortgage Loans deposited by IndyMac MBS, Inc. (the "Depositor"). The Trust Fund
was created pursuant to a Pooling and Servicing Agreement dated as of the
Cut-off Date specified above (the "Agreement") among the Depositor, IndyMac
Bank, F.S.B., as seller (in such capacity, the "Seller") and as Servicer (in
such capacity, the "Servicer"), and Deutsche Bank National Trust Company, as
trustee and supplemental interest trustee (the "Trustee"). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
[Until this certificate has been the subject of an ERISA-Qualifying
Underwriting, no transfer of a Certificate of this Class shall be made unless
the Trustee shall have received either (i) a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan subject to Section 406 of ERISA or Section 4975 of the
Code, nor a person investing on behalf of or with plan assets of any such plan,
which representation letter shall not be an expense of the Trustee or the
Servicer, or (ii) in the case of any such Certificate presented for registration
in the name of an employee benefit plan subject to ERISA or Section 4975 of the
Code (or comparable provisions of any subsequent enactments), or a trustee of
any such plan or any other person acting on behalf of any such plan, an Opinion
of Counsel satisfactory to the Trustee and the Servicer to the effect that the
purchase or holding of such Certificate will not result in a nonexempt
prohibited transaction under Section 406 of ERISA or Section 4975 of the Code
and will not subject the Trustee or the Servicer to any obligation in addition
to those undertaken in the Agreement, which Opinion of Counsel shall not be an
expense of the Trustee, the Servicer, or the Trust Fund. Notwithstanding
anything else to the contrary herein, until this certificate has been the
subject of an ERISA-Qualifying Underwriting, any purported transfer of a
Certificate of this Class to or on behalf of an employee benefit plan subject to
ERISA or to the Code without the opinion of counsel satisfactory to the Trustee
as described above shall be void and of no effect.]
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
D-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By ______________________
Countersigned:
By ___________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
D-4
EXHIBIT E
[Form of Reverse of Certificates]
INDYMAC MBS, INC.
Residential Asset Securitization Trust 2007-A1
Mortgage Pass-Through Certificates, Series 2007-A
This Certificate is one of a duly authorized issue of Certificates
designated as IndyMac MBS, Inc. Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date applicable to each
Distribution Date is the last Business Day of the month next preceding the month
of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the Record Date and such Certificateholder shall satisfy the conditions to
receive such form of payment set forth in the Agreement, or, if not, by check
mailed by first class mail to the address of such Certificateholder appearing in
the Certificate Register. The final distribution on each Certificate will be
made in like manner, but only upon presentment and surrender of such Certificate
at the Corporate Trust Office or such other location specified in the notice to
Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Servicer and the Trustee with the consent of the Holders
of Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
E-1
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar duly
executed by the holder hereof or such holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Servicer, the Seller and the Trustee and any agent
of the Depositor or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and neither the
Depositor, the Trustee, nor any such agent shall be affected by any notice to
the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans in the mortgage pool is less than 10% of the
Cut-off Date Pool Principal Balance, the Servicer will have the option to
repurchase, in whole, from the Trust Fund all remaining Mortgage Loans in the
mortgage pool and all property acquired in respect of the Mortgage Loans in the
mortgage pool at a purchase price determined as provided in the Agreement. In
the event that no such optional termination occurs, the obligations and
responsibilities created by the Agreement will terminate upon the later of the
maturity or other liquidation (or any advance with respect thereto) of the last
Mortgage Loan remaining in the Trust Fund or the disposition of all property in
respect thereof and the distribution to Certificateholders of all amounts
required to be distributed pursuant to the Agreement. In no event, however, will
the trust created by the Agreement continue beyond the expiration of 21 years
from the death of the last survivor of the descendants living at the date of the
Agreement of a certain person named in the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
E-2
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_________________________________________________
______________________________________________________________________________,
for the account of ___________________________________________________________,
account number , or, if mailed by check, to___________________________
_______________________________________________________________________________
_______________________________________________________________________________
Applicable statements should be mailed to _____________________________________
_______________________________________________________________________________
_______________________________________________________________________________
This information is provided by _________________________________________,
the assignee named above, or __________________________________________________,
as its agent.
E-3
STATE OF CALIFORNIA )
: ss.:
COUNTY OF _____________ )
On the th day of , 20 before me, a notary public in and for said State,
personally appeared , known to me who, being by me duly sworn, did depose and
say that he executed the foregoing instrument.
-----------------------------------
Notary Public
[Notarial Seal]
E-4
EXHIBIT F
[RESERVED]
F-1
EXHIBIT G-1
FORM OF INITIAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Servicer]
[Seller]
---------------------
---------------------
Re: Pooling and Servicing Agreement among IndyMac MBS,
Inc., as Depositor, IndyMac Bank, F.S.B., as Seller
and Servicer, and Deutsche Bank National Trust
Company, as Trustee, Mortgage Pass-Through
Certificates, Series 2007-A1
---------------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned, as
Trustee, hereby certifies that, as to each Mortgage Loan listed in the Mortgage
Loan Schedule (other than any Mortgage Loan listed in the attached schedule), it
has received:
(i) the original Mortgage Note, endorsed as provided in the following
form: "Pay to the order of ________, without recourse"; and
(ii) a duly executed assignment of the Mortgage (which may be included
in a blanket assignment or assignments); provided, however, that it has received
no assignment with respect to any Mortgage for which the Mortgaged Property is
located in the Commonwealth of Puerto Rico.
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and to such Mortgage
Loan.
The Trustee has made no independent examination of any
documents contained in each Mortgage File beyond the review specifically
required in the Pooling and Servicing Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any of
the Mortgage Loans identified on the Mortgage Loan Schedule, or (ii) the
collectability, insurability, effectiveness or suitability of any such Mortgage
Loan.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the Pooling and Servicing Agreement.
G-1-1
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By:
-----------------------------------
Name:
Title:
G-1-2
EXHIBIT G-2
FORM OF DELAY DELIVERY CERTIFICATION (MORTGAGE LOANS)
[date]
[Depositor]
[Servicer]
[Seller]
---------------------
---------------------
Re: Pooling and Servicing Agreement among IndyMac MBS,
Inc., as Depositor, IndyMac Bank, F.S.B., as Seller
and Servicer, and Deutsche Bank National Trust
Company, as Trustee, Mortgage Pass-Through
Certificates, Series 2007-A1
---------------------------------------------------
Gentlemen:
Reference is made to the Initial Certification of Trustee relating to
the above-referenced series, with the schedule of exceptions attached thereto
(the "Schedule A"), delivered by the undersigned, as Trustee, on the Closing
Date in accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"). The undersigned
hereby certifies that, as to each Delay Delivery Mortgage Loan listed on
Schedule A attached hereto (other than any Mortgage Loan paid in full or listed
on Schedule B attached hereto) it has received:
(i) the original Mortgage Note, endorsed by the Seller or the
originator of such Mortgage Loan, without recourse in the
following form: "Pay to the order of _______________ without
recourse", with all intervening endorsements that show a
complete chain of endorsement from the originator to the
Seller, or, if the original Mortgage Note has been lost or
destroyed and not replaced, an original lost note affidavit
from the Seller, stating that the original Mortgage Note was
lost or destroyed, together with a copy of the Mortgage Note;
(ii) the original recorded Mortgage;
(iii) a duly executed assignment of the Mortgage to "Deutsche Bank
National Trust Company, as trustee under the Pooling and
Servicing Agreement dated as of January 1, 2007, without
recourse" (each such assignment, when duly and validly
completed, to be in recordable form and sufficient to effect
the assignment of and transfer to the assignee thereof, under
the Mortgage to which such assignment relates);
(iv) the original recorded assignment or assignments of the
Mortgage together with all interim recorded assignments of
such Mortgage;
(v) the original or copies of each assumption, modification,
written assurance or substitution agreement, if any, with
evidence of recording thereon if recordation thereof is
permissible under applicable law; and
G-2-1
(vi) the original or duplicate original lender's title policy and
all riders, if any, thereto or, in the event such original
title policy has not been received from the insurer, any one
of an original title binder, an original preliminary title
report or an original title commitment, or a copy thereof
certified by the title company, with the original policy of
title insurance to be delivered within one year of the Closing
Date.
In the event that in connection with any Mortgage Loan for which the
Seller cannot deliver the original recorded Mortgage or all interim recorded
assignments of the Mortgage satisfying the requirements of clause (ii), (iii) or
(iv), as applicable, the Trustee has received, in lieu thereof, a true and
complete copy of such Mortgage and/or such assignment or assignments of the
Mortgage, as applicable, each certified by the Seller, the applicable title
company, escrow agent or attorney, or the originator of such Mortgage Loan, as
the case may be, to be a true and complete copy of the original Mortgage or
assignment of Mortgage submitted for recording.
Based on its review and examination and only as to the foregoing
documents, (i) such documents appear regular on their face and related to such
Mortgage Loan, and (ii) the information set forth in items (i), (iv), (vi) and
(xi) of the definition of the "Mortgage Loan Schedule" in Section 1.01 of the
Pooling and Servicing Agreement accurately reflects information set forth in the
Mortgage File.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any of
the Mortgage Loans identified on the [Mortgage Loan Schedule][Loan Number and
Borrower Identification Mortgage Loan Schedule] or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By:
---------------------------------
Name:
Title:
G-2-2
EXHIBIT H
FORM OF FINAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Servicer]
[Seller]
---------------------
---------------------
Re: Pooling and Servicing Agreement among IndyMac MBS,
Inc., as Depositor, IndyMac Bank, F.S.B., as Seller
and Servicer, and Deutsche Bank National Trust
Company, as Trustee, Mortgage Pass-Through
Certificates, Series 2007-A1
----------------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned, as
Trustee, hereby certifies that as to each Mortgage Loan listed in the Mortgage
Loan Schedule (other than any Mortgage Loan paid in full or listed on the
attached Document Exception Report) it has received:
(i) The original Mortgage Note, endorsed in the form provided in
Section 2.01(c) of the Pooling and Servicing Agreement, with all intervening
endorsements showing a complete chain of endorsement from the originator to the
Seller.
(ii) The original recorded Mortgage.
(iii) A duly executed assignment of the Mortgage in the form provided
in Section 2.01(c) of the Pooling and Servicing Agreement; provided, however,
that it has received no assignment with respect to any Mortgage for which the
Mortgaged Property is located in the Commonwealth of Puerto Rico, or, if the
Depositor has certified or the Trustee otherwise knows that the Mortgage has not
been returned from the applicable recording office, a copy of the assignment of
the Mortgage (excluding information to be provided by the recording office).
(iv) The original or duplicate original recorded assignment or
assignments of the Mortgage showing a complete chain of assignment from the
originator to the Seller.
(v) The original or duplicate original lender's title policy and all
riders thereto or, any one of an original title binder, an original preliminary
title report or an original title commitment, or a copy thereof certified by the
title company.
Based on its review and examination and only as to the foregoing
documents, (a) such documents appear regular on their face and related to such
Mortgage Loan, and (b) the information set forth in items (i), (ii), (iii),
(iv), (vi) and (xi) of the definition of the "Mortgage Loan Schedule" in Section
1.01 of the Pooling and Servicing Agreement accurately reflects information set
forth in the Mortgage File.
H-1
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Trustee makes no representations as to: (i)
the validity, legality, sufficiency, enforceability or genuineness of any of the
documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan.
Notwithstanding anything herein to the contrary, the Trustee has made no
determination and makes no representations as to whether (i) any endorsement is
sufficient to transfer all right, title and interest of the party so endorsing,
as noteholder or assignee thereof, in and to that Mortgage Note or (ii) any
assignment is in recordable form or sufficient to effect the assignment of and
transfer to the assignee thereof, under the Mortgage to which the assignment
relates.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By:
-----------------------------------------
Name:
Title:
H-2
EXHIBIT I
TRANSFER AFFIDAVIT
IndyMac MBS, Inc.
Mortgage Pass-Through Certificates
Series 2007-A1
STATE OF CALIFORNIA )
: ss.:
COUNTY OF _____________ )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of , the proposed Transferee of an
Ownership Interest in a Class A-R Certificate (the "Certificate") issued
pursuant to the Pooling and Servicing Agreement, (the "Agreement"), relating to
the above-referenced Series, by and among IndyMac MBS, Inc., as depositor (the
"Depositor"), IndyMac Bank, F.S.B., as seller and Servicer and Deutsche Bank
National Trust Company, as Trustee. Capitalized terms used, but not defined
herein or in Exhibit 1 hereto, shall have the meanings ascribed to such terms in
the Agreement. The Transferee has authorized the undersigned to make this
affidavit on behalf of the Transferee.
2. The Transferee is, as of the date hereof, and will be, as of the
date of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate for its own account.
3. The Transferee has been advised of, and understands that (i) a tax
will be imposed on Transfers of the Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability for
the tax if the subsequent Transferee furnished to such Person an affidavit that
such subsequent Transferee is a Permitted Transferee and, at the time of
Transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax will
be imposed on a "pass-through entity" holding the Certificate if at any time
during the taxable year of the pass-through entity a Person that is not a
Permitted Transferee is the record holder of an interest in such entity. The
Transferee understands that such tax will not be imposed for any period with
respect to which the record holder furnishes to the pass-through entity an
affidavit that such record holder is a Permitted Transferee and the pass-through
entity does not have actual knowledge that such affidavit is false. (For this
purpose, a "pass-through entity" includes a regulated investment company, a real
estate investment trust or common trust fund, a partnership, trust or estate,
and certain cooperatives and, except as may be provided in Treasury Regulations,
persons holding interests in pass-through entities as a nominee for another
Person.)
5. The Transferee has reviewed the provisions of Section 5.02(c) of the
Agreement (attached hereto as Exhibit 2 and incorporated herein by reference)
and understands the legal consequences of the acquisition of an Ownership
Interest in the Certificate including, without limitation, the restrictions on
subsequent Transfers and the provisions regarding voiding the Transfer and
mandatory sales. The Transferee expressly agrees to be bound by and to abide by
the provisions of Section 5.02(c)
I-1
of the Agreement and the restrictions noted on the face of the Certificate.
The Transferee understands and agrees that any breach of any of the
representations included herein shall render the Transfer to the Transferee
contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any
Person to whom the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth as Exhibit J to the Agreement (a "Transferor Certificate") to the
effect that such Transferee has no actual knowledge that the Person to which the
Transfer is to be made is not a Permitted Transferee.
7. The Transferee does not have the intention to impede the assessment
or collection of any tax legally required to be paid with respect to the
Certificate.
8. The Transferee's taxpayer identification number is ________.
9. The Transferee has provided to the Trustee a correct, complete and
duly executed tax certification form (i.e., U.S. Internal Revenue Service Form
▇-▇, ▇-▇▇▇▇, ▇-▇▇▇▇, ▇-▇▇▇▇ or W-8ECI, as applicable (or any successor form
thereto), together with appropriate attachments) as a condition to such
transfer and agrees to update such tax certification form (i) upon expiration
of any such tax certification form, (ii) as required under then applicable
U.S. Treasury regulations and (iii) promptly upon learning that any tax
certification form previously provided has become obsolete or incorrect.
10. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
11. 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.
12. The Transferee is not a foreign permanent establishment or fixed
base (within the meaning of an applicable income tax treaty) of a U.S.
taxpayer.
13. The Transferee will not transfer the Certificates, directly or
indirectly, to a foreign permanent establishment or fixed base (within the
meaning of an applicable income tax treaty) of the Transferee or another U.S.
taxpayer.
14. The Transferee will not cause income from the Certificates to be
attributable to a foreign permanent establishment or fixed base (within the
meaning of an applicable income tax treaty) of the Transferee or another U.S.
taxpayer.
15. Either:
(a) (i) At the time of the transfer, and at the close of
each of the Transferee's two fiscal years preceding the Transferee's
fiscal year of transfer, the Transferee's gross assets for financial
reporting purposes exceed $100 million and its net assets for
financial reporting purposes exceed $10 million. For purposes of the
preceding sentence, the gross assets and net assets of a Transferee
do not include any obligation of any Related Person, as defined
below, or any other
I-2
asset if a principal purpose for holding or acquiring the other asset
is to permit the Transferee to satisfy the conditions of this
paragraph 15(a); (ii) The Transferee is an Eligible Corporation, as
defined below, and hereby agrees that any subsequent transfer of the
interest will be to another Eligible Corporation in a transaction
that satisfies this Transfer Affidavit, including this paragraph
15(a); and (iii) The Transferee has not given the Transferor any
reason to know that the Transferee will not honor the restrictions on
subsequent transfers of the residual interest or that the Transferee
cannot or will not pay any taxes associated with the residual
interest; or
(b)(i) The Transferee is a United States Person; (ii) The
present value of the anticipated tax liabilities associated with
holding the residual interest does not exceed the sum of: (A) The
present value of any consideration given to the Transferee to acquire
the interest; (B) The present value of the expected future
distributions on the interest; and (C) The present value of the
anticipated tax savings associated with holding the interest as any
REMIC generates losses; and (iii) For purposes of calculating the
aforementioned present values: (A) The transferee has assumed that it
pays tax at a rate equal to the highest rate of tax specified in Code
Section 11(b)(1) (unless the Transferee has been subject to the
alternative minimum tax under Code Section 55 in the preceding two
years and will compute its taxable income in the current taxable year
using the alternative minimum tax rate, in which case the Transferee
can assume that it pays tax at the rate specified in Code Section
55(b)(1)(B) provided the Transferee states in this Transfer Affidavit
that it is using such alternate rate and that has been subject to the
alternative minimum tax under Code Section 55 in the preceding two
years and will compute its taxable income in the current taxable year
using the alternative minimum tax rate):and (B) The Transferee uses a
discount rate equal to the Federal short-term rate prescribed by
section 1274(d) for the month of the transfer and the compounding
period used by the Transferee.
The term "Eligible Corporation" means any domestic C corporation (as
defined in section 1361(a)(2) of the Code) other than a corporation which is
exempt from, or is not subject to, tax under section 11 of the Code, an entity
described in section 851(a) or 856(a) of the Code, a REMIC; or an organization
to which part I, subchapter T, chapter 1, subtitle A of the Code applies. The
Term "Related Person" means any person that bears a relationship to the
Transferee enumerated in section 267(b) or 707(b)(1) of the Code, using "20
percent" instead of "50 percent" where it appears under the provisions; or is
under common control (within the meaning of section 52(a) and (b) of the Code)
with the Transferee.
16. Either (i) the Transferee is not an employee benefit plan that is
subject to ERISA or a plan that is subject to Section 4975 of the Code, and
the Transferee is not acting on behalf of or with plan assets of such a plan;
or (ii) the Transferee is an insurance company that is investing funds
contained in an "insurance company general account" (as such term is defined
in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")
and the purchase and holding of the Class A-R Certificate satisfy the
requirements for exemptive relief under Sections I and III of PTCE 95-60.
* * *
I-3
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
duly authorized officer and its corporate seal to be hereunto affixed, duly
attested, this day of , 20 .
-----------------------------------------
Print Name of Transferee
By:
--------------------------------------
Name:
Title:
[Corporate Seal]
ATTEST:
[Assistant] Secretary
Personally appeared before me the above-named , known or proved to me
to be the same person who executed the foregoing instrument and to be the of the
Transferee, and acknowledged that he executed the same as his free act and deed
and the free act and deed of the Transferee.
Subscribed and sworn before me this day of , 20 .
-------------------------------
NOTARY PUBLIC
My Commission
expires the ___ day of_____, 20 __.
I-4
EXHIBIT 1
to EXHIBIT I
Certain Definitions
"Ownership Interest": As to any Certificate, any ownership interest in
such Certificate, including any interest in such Certificate as the Holder
thereof and any other interest therein, whether direct or indirect, legal or
beneficial.
"Permitted Transferee": Any Person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, International Organization or
any agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in Code Section 521) which is
exempt from tax imposed by Chapter 1 of the Code (including the tax imposed by
Code Section 511 on unrelated business taxable income) on any excess inclusions
(as defined in Code Section 860E(c)(1)) with respect to any Class A-R
Certificate, (iv) rural electric and telephone cooperatives described in Code
Section 1381(a)(2)(c), (v) a Person that is not a citizen or resident of the
United States, a corporation, partnership, or other entity created or organized
in or under the laws of the United States or any political subdivision thereof,
or an estate or trust whose income from sources without the United States is
includible in gross income for federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States, and
(vi) any other Person so designated by the Depositor based upon an Opinion of
Counsel that the Transfer of an Ownership Interest in a Class A-R Certificate to
such Person may cause the Trust Fund to fail to qualify as a REMIC at any time
that certain Certificates are Outstanding. The terms "United States," "State"
and "International Organization" shall have the meanings set forth in Code
Section 7701 or successor provisions. A corporation will not be treated as an
instrumentality of the United States or of any State or political subdivision
thereof if all of its activities are subject to tax, and, with the exception of
the FHLMC, a majority of its board of directors is not selected by such
governmental unit.
"Person": Any individual, corporation, partnership, joint venture,
bank, joint stock company, trust (including any beneficiary thereof),
unincorporated organization or government or any agency or political subdivision
thereof.
"Transfer": Any direct or indirect transfer or sale of any Ownership
Interest in a Certificate, including the acquisition of a Certificate by the
Depositor.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
I-5
EXHIBIT 2
to EXHIBIT I
Section 5.02(c) of the Agreement
(c) Each Person who has or who acquires any Ownership Interest
in a Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following provisions,
and the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall be a Permitted
Transferee and shall promptly notify the Trustee of any change
or impending change in its status as a Permitted Transferee.
(ii) No Ownership Interest in a Residual Certificate
may be registered on the Closing Date or thereafter
transferred, and the Trustee shall not register the Transfer
of any Residual Certificate unless, in addition to the
certificates required to be delivered to the Trustee under
subparagraph (b) above, the Trustee shall have been furnished
with an affidavit (a "Transfer Affidavit") of the initial
owner or the proposed transferee in the form attached hereto
as Exhibit I.
(iii) Each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall agree (A) to obtain a
Transfer Affidavit from any other Person to whom such Person
attempts to Transfer its Ownership Interest in a Residual
Certificate, (B) to obtain a Transfer Affidavit from any
Person for whom such Person is acting as nominee, trustee or
agent in connection with any Transfer of a Residual
Certificate and (C) not to Transfer its Ownership Interest in
a Residual Certificate or to cause the Transfer of an
Ownership Interest in a Residual Certificate to any other
Person if it has actual knowledge that such Person is not a
Permitted Transferee.
(iv) Any attempted or purported Transfer of any
Ownership Interest in a Residual Certificate in violation of
the provisions of this Section 5.02(c) shall be absolutely
null and void and shall vest no rights in the purported
Transferee. If any purported transferee shall become a Holder
of a Residual Certificate in violation of the provisions of
this Section 5.02(c), then the last preceding Permitted
Transferee shall be restored to all rights as Holder thereof
retroactive to the date of registration of Transfer of such
Residual Certificate. The Trustee shall be under no liability
to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by Section 5.02(b)
and this Section 5.02(c) or for making any payments due on
such Certificate to the Holder thereof or taking any other
action with respect to such Holder under the provisions of
this Agreement so long as the Transfer was registered after
receipt of the Transfer Affidavit, Transferor Certificate and
either the Rule 144A Letter or the Investment Letter. The
Trustee shall be entitled but not obligated to recover from
any Holder of a Residual Certificate that was in fact not a
Permitted Transferee at the time it became a Holder or, at
such subsequent time as it became other than a Permitted
Transferee, all payments made on such Residual Certificate at
and after either such time. Any such payments so recovered by
the Trustee shall be paid and delivered by the Trustee to the
last preceding Permitted Transferee of such Certificate.
I-6
(v) The Depositor shall use its best efforts to make
available, upon receipt of written request from the Trustee,
all information necessary to compute any tax imposed under
Section 860E(e) of the Code as a result of a Transfer of an
Ownership Interest in a Residual Certificate to any Holder who
is not a Permitted Transferee.
I-7
EXHIBIT J
FORM OF TRANSFEROR CERTIFICATE
__________, 200__
IndyMac MBS, Inc.
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Secondary Marketing, Transaction Management
Deutsche Bank National Trust Company
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Trust Administration, Series 200 -
Re: IndyMac MBS, Inc.
Mortgage Pass-Through Certificates, Series 2007-A1, Class
Ladies and Gentlemen:
In connection with our disposition of the above Certificates
we certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being disposed
by us in a transaction that is exempt from the registration requirements of the
Act, (b) we have not offered or sold any Certificates to, or solicited offers to
buy any Certificates from, any person, or otherwise approached or negotiated
with any person with respect thereto, in a manner that would be deemed, or taken
any other action which would result in, a violation of Section 5 of the Act and
(c) to the extent we are disposing of a Class A-R Certificate, we have no
knowledge the Transferee is not a Permitted Transferee.
Very truly yours,
------------------------------
Print Name of Transferor
By: ___________________________
Authorized Officer
J-1
EXHIBIT K
FORM OF INVESTMENT LETTER (NON-RULE 144A)
__________, 200__
IndyMac MBS, Inc.
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Secondary Marketing, Transaction Management
Deutsche Bank National Trust Company
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Trust Administration, Series 200 -
Re: IndyMac MBS, Inc.
Mortgage Pass-Through Certificates, Series 2007-A1, Class
Ladies and Gentlemen:
In connection with our acquisition of the above-referenced
Certificates we certify that (a) we understand that the Certificates are not
being registered under the Securities Act of 1933, as amended (the "Act"), or
any state securities laws and are being transferred to us in a transaction that
is exempt from the registration requirements of the Act and any such laws, (b)
we are an "accredited investor," as defined in Regulation D under the Act, and
have such knowledge and experience in financial and business matters that we are
capable of evaluating the merits and risks of investments in the Certificates,
(c) we have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) either (i) we are not an employee benefit plan
that is subject to the Employee Retirement Income Security Act of 1974, as
amended, or a plan or arrangement that is subject to Section 4975 of the
Internal Revenue Code of 1986, as amended, nor are we acting on behalf of any
such plan or arrangement or using the assets of any such plan or arrangement to
effect such acquisition or (ii) [if the Certificate has been the subject of an
ERISA-Qualifying Underwriting,] we are an insurance company which is purchasing
such Certificates with funds contained in an "insurance company general account"
(as such term is defined in Section V(e) of Prohibited Transaction Class
Exemption 95-60 ("PTCE 95-60")) and the purchase and holding of such
Certificates are covered under Sections I and III of PTCE 95-60, (e) we are
acquiring the Certificates for investment for our own account and not with a
view to any distribution of such Certificates (but without prejudice to our
right at all times to sell or otherwise dispose of the Certificates in
accordance with clause (g) below), (f) we have not offered or sold any
Certificates to, or solicited offers to buy any Certificates from, any person,
or otherwise approached or negotiated with any person with respect thereto, or
taken any other action which would result in a violation of Section 5 of the
Act, and (g) we will not sell, transfer or otherwise dispose of any Certificates
unless (1) such sale, transfer or other disposition is made pursuant to an
effective registration statement under the Act or is exempt from such
registration requirements, and if requested, we will at our expense provide an
opinion of counsel satisfactory to the addressees of this Certificate that such
sale, transfer or other disposition may be made pursuant to an exemption from
the Act, (2) the purchaser or transferee of such Certificate has executed and
delivered to you a certificate to substantially
K-2
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: Secondary Marketing, Transaction Management
Deutsche Bank National Trust Company
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Trust Administration, Series 200 -
Re: IndyMac MBS, Inc.
Mortgage Pass-Through Certificates, Series 2007-A1, Class
Ladies and Gentlemen:
In connection with our acquisition of the above-referenced
Certificates we certify that (a) we understand that the Certificates are not
being registered under the Securities Act of 1933, as amended (the "Act"), or
any state securities laws and are being transferred to us in a transaction that
is exempt from the registration requirements of the Act and any such laws, (b)
we have such knowledge and experience in financial and business matters that we
are capable of evaluating the merits and risks of investments in the
Certificates, (c) we have had the opportunity to ask questions of and receive
answers from the Depositor concerning the purchase of the Certificates and all
matters relating thereto or any additional information deemed necessary to our
decision to purchase the Certificates, (d) either (i) we are not an employee
benefit plan that is subject to the Employee Retirement Income Security Act of
1974, as amended, or a plan or arrangement that is subject to Section 4975 of
the Internal Revenue Code of 1986, as amended, nor are we acting on behalf of
any such plan or arrangement or using the assets of any such plan or arrangement
to effect such acquisition, or (ii) [if the Certificate has been the subject of
an ERISA-Qualifying Underwriting,] we are purchasing the Certificates with funds
contained in an "insurance company general account" (as defined in Section V(e)
of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and our purchase
and holding of the Certificates satisfy the requirements for exemptive relief
under Sections I and III of PTCE 95-60, (e) we have not, nor has anyone acting
on our behalf offered, transferred, pledged, sold or otherwise disposed of the
Certificates, any interest in the Certificates or any other similar security to,
or solicited any offer to buy or accept a transfer, pledge or other disposition
of the Certificates, any interest in the Certificates or any other similar
security from, or otherwise approached or negotiated with respect to the
Certificates, any interest in the Certificates or any other similar security
with, any person in any manner, or made any general solicitation by means of
general advertising or in any other manner, or taken any other action, that
would constitute a distribution of the Certificates under the Act or that would
render the disposition of the Certificates a violation of Section 5 of the Act
or require registration pursuant thereto, nor will act, nor has authorized or
will authorize any person to act, in such manner with respect to the
Certificates, (f) we are a "qualified institutional buyer" as that term is
defined in Rule 144A under the Act ("Rule 144A") and have completed either of
the forms of certification to that effect attached hereto as Annex 1 or Annex 2,
(g) we are aware that the sale to us is being made in reliance on Rule 144A, and
(h) we are acquiring the
L-1
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.
___ Insurance Company. The Buyer is an insurance
company whose primary and predominant business activity is the
writing of insurance or the reinsuring of risks underwritten
by insurance companies and which is subject to supervision by
the
---------------------------
(1) Buyer must own and/or invest on a discretionary basis at least $100,000,000
in securities unless Buyer is a dealer, and, in that case, Buyer must own
and/or invest on a discretionary basis at least $10,000,000 in securities.
L-3
insurance commissioner or a similar official or agency of a
State, territory or the District of Columbia.
___ State or Local Plan. The Buyer is a plan
established and maintained by a State, its political
subdivisions, or any agency or instrumentality of the State or
its political subdivisions, for the benefit of its employees.
___ ERISA Plan. The Buyer is an employee benefit plan
within the meaning of Title I of the Employee Retirement
Income Security Act of 1974.
___ Investment Advisor. The Buyer is an
investment advisor registered under the Investment Advisors
Act of 1940.
___ Small Business Investment Company. Buyer is
a small business investment company licensed by the U.S.
Small Business Administration under Section 301(c) or (d) of
the Small Business Investment Act of 1958.
___ Business Development Company. Buyer is a
business development company as defined in Section
202(a)(22) of the Investment Advisors Act of 1940.
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer is
a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned but
subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Buyer, the
Buyer used the cost of such securities to the Buyer and did not include any of
the securities referred to in the preceding paragraph, except (i) where the
Buyer reports its securities holdings in its financial statements on the basis
of their market value, and (ii) no current information with respect to the cost
of those securities has been published. If clause (ii) in the preceding sentence
applies, the securities may be valued at market. Further, in determining such
aggregate amount, the Buyer may have included securities owned by subsidiaries
of the Buyer, but only if such subsidiaries are consolidated with the Buyer in
its financial statements prepared in accordance with generally accepted
accounting principles and if the investments of such subsidiaries are managed
under the Buyer's direction. However, such securities were not included if the
Buyer is a majority-owned, consolidated subsidiary of another enterprise and the
Buyer is not itself a reporting company under the Securities Exchange Act of
1934, as amended.
5. The Buyer acknowledges that it is familiar with Rule 144A
and understands that the seller to it and other parties to the Certificates are
relying and will continue to rely on the statements made herein because one or
more sales to the Buyer may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the
Buyer will notify each of the parties to which this certification is made of any
changes in the information and conclusions herein. Until such notice is given,
the Buyer's purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the Buyer is a
bank or savings and loan is provided above, the Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after they
become available.
L-4
---------------------------------------
Print Name of Buyer
By:____________________________________
Name:
Title:
_______________________________________Date:
L-5
ANNEX 2 TO EXHIBIT L
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to
the parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because Buyer is part of a
Family of Investment Companies (as defined below), is such an officer of the
Adviser.
2. In connection with purchases by Buyer, the Buyer is a
"qualified institutional buyer" as defined in SEC Rule 144A because (i) the
Buyer is an investment company registered under the Investment Company Act of
1940, as amended and (ii) as marked below, the Buyer alone, or the Buyer's
Family of Investment Companies, owned at least $100,000,000 in securities (other
than the excluded securities referred to below) as of the end of the Buyer's
most recent fiscal year. For purposes of determining the amount of securities
owned by the Buyer or the Buyer's Family of Investment Companies, the cost of
such securities was used, except (i) where the Buyer or the Buyer's Family of
Investment Companies reports its securities holdings in its financial statements
on the basis of their market value, and (ii) no current information with respect
to the cost of those securities has been published. If clause (ii) in the
preceding sentence applies, the securities may be valued at market.
___ The Buyer owned $ in securities (other than the
excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
___ The Buyer is part of a Family of Investment
Companies which owned in the aggregate $ in securities (other
than the excluded securities referred to below) as of the end
of the Buyer's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein
means two or more registered investment companies (or series thereof) that have
the same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because one
investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) securities issued or guaranteed by
the U.S. or any instrumentality thereof, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase agreements,
(vi) securities owned but subject to a repurchase agreement and (vii) currency,
interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that
the parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, the Buyer will only purchase for the Buyer's own account.
L-6
6. Until the date of purchase of the Certificates, the
undersigned will notify the parties listed in the Rule 144A Transferee
Certificate to which this certification relates of any changes in the
information and conclusions herein. Until such notice is given, the Buyer's
purchase of the Certificates will constitute a reaffirmation of this
certification by the undersigned as of the date of such purchase.
---------------------------------------
Print Name of Buyer
By:____________________________________
Name:
Title:
_______________________________________
Date:
EXHIBIT M
REQUEST FOR RELEASE
(for Trustee)
IndyMac MBS, Inc.
Mortgage Pass-Through Certificates
Series 2007-A
Loan Information
Name of Mortgagor:
Servicer
Loan No.: ________________
Trustee
Name: ________________
Address: ________________
Trustee
Mortgage File No.:
The undersigned Servicer hereby acknowledges that it has received from
Deutsche Bank National Trust Company, as Trustee for the Holders of Mortgage
Pass-Through Certificates, of the above-referenced Series, the documents
referred to below (the "Documents"). All capitalized terms not otherwise defined
in this Request for Release shall have the meanings given them in the Pooling
and Servicing Agreement (the "Pooling and Servicing Agreement") relating to the
above-referenced Series among the Trustee, IndyMac Bank, F.S.B., as Seller and
Servicer and IndyMac MBS, Inc., as Depositor.
--------------------------------------------------------------------------------
( ) Mortgage Note dated ______, 20__, in the original principal sum
of $______, made by ______. payable to, or endorsed to the order
of, the Trustee.
( ) Mortgage recorded on __________ as instrument no. __________ in the
County Recorder's Office of the County of ________, State of
____________ in book/reel/docket of official records at page/image
________.
( ) Deed of Trust recorded on __________ as instrument no. __________ in
the County Recorder's Office of the County of ______, State of
________ in book/reel/docket of official records at page/image
______.
( ) Assignment of Mortgage or Deed of Trust to the Trustee, recorded on
________ as instrument no. ________in the County Recorder's Office of
the County of ______ , State of __________ in book/reel/docket ________
of official records at page/image ________.
M-1
( ) Other documents, including any amendments, assignments or other
assumptions of the Mortgage Note or Mortgage.
The undersigned Servicer hereby acknowledges and agrees as follows:
(1) The Servicer shall hold and retain possession of
the Documents in trust for the benefit of the Trustee, solely
for the purposes provided in the Agreement.
(2) The Servicer shall not cause or knowingly permit
the Documents to become subject to, or encumbered by, any
claim, liens, security interest, charges, writs of attachment
or other impositions nor shall the Servicer assert or seek to
assert any claims or rights of setoff to or against the
Documents or any proceeds thereof.
(3) The Servicer shall return each and every Document
previously requested from the Mortgage File to the Trustee
when the need therefor no longer exists, unless the Mortgage
Loan relating to the Documents has been liquidated and the
proceeds thereof have been remitted to the Certificate Account
and except as expressly provided in the Agreement.
(4) The Documents and any proceeds thereof, including
any proceeds of proceeds, coming into the possession or
control of the Servicer shall at all times be earmarked for
the account of the Trustee, and the Servicer shall keep the
Documents and any proceeds separate and distinct from all
other property in the Servicer's possession, custody or
control.
INDYMAC BANK, F.S.B.
By: _________________
Name:
Title:
Date: , 20
M-2
EXHIBIT N
REQUEST FOR RELEASE OF DOCUMENTS
To: Deutsche Bank National Trust Company
Attn: Mortgage Custody Services
Re: The Pooling and Servicing Agreement dated January 1, 2007 among IndyMac
Bank, F.S.B. as Servicer, Inc, IndyMac MBS, Inc. and Deutsche
Bank National Trust Company, as Trustee
-------------------------------------------------------------------
Ladies and Gentlemen:
In connection with the administration of the Mortgage Loans held by you
as Trustee for IndyMac MBS, Inc., we request the release of the Mortgage Loan
File for the Mortgage Loan(s) described below, for the reason indicated.
FT Account #: Pool #:
Mortgagor's Name, Address and Zip Code:
Mortgage Loan Number:
Reason for Requesting Documents (check one)
_______1. Mortgage Loan paid in full (IndyMac hereby certifies that
all amounts have been received.)
_______2. Mortgage Loan Liquidated (IndyMac hereby certifies that all
proceeds of foreclosure, insurance, or other liquidation
have been finally received.)
_______3. Mortgage Loan in Foreclosure.
_______4. Other (explain): ____________________________________
If item 1 or 2 above is checked, and if all or part of the Mortgage
File was previously released to us, please release to us our previous receipt on
file with you, as well as an additional documents in your possession relating to
the above-specified Mortgage Loan. If item 3 or 4 is checked, upon return of all
of the above documents to you as Trustee, please acknowledge your receipt by
signing in the space indicated below, and returning this form.
N-1
INDYMAC BANK, F.S.B.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
By:_______________________
Name:_____________________
Title:____________________
Date:_____________________
TRUSTEE CONSENT TO RELEASE AND
ACKNOWLEDGEMENT OF RECEIPT
By:_______________________
Name:_____________________
Title:____________________
Date:_____________________
N-2
EXHIBIT O-1
FORM OF CERTIFICATION TO BE PROVIDED BY THE DEPOSITOR WITH FORM 10-K
Re: IndyMac MBS, Inc.
Residential Asset Securitization
Trust 200_- , Series 200_- __
------------------------------
I, [identify the certifying individual], certify that:
1. I have reviewed this report on Form 10-K and all reports on
Form 10-D required to be filed in respect of the period covered by this report
on Form 10-K of Residential Asset Securitization Trust 200 - , Series 200 - (the
"Exchange Act periodic reports");
2. Based on my knowledge, the Exchange Act periodic reports,
taken as a whole, does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made, in light of
the circumstances under which such statements were made, not misleading with
respect to the period covered by this report;
3. Based on my knowledge, the distribution, servicing and
other information required to be provided under Form 10-D for the period covered
by this report is included in the Exchange Act periodic reports;
4. Based on my knowledge and the servicer compliance statement
required in this report under Item 1123 of Regulation AB and except as disclosed
in the Exchange Act periodic reports, the servicer has fulfilled its obligations
under the servicing agreement in all material respects; and
5. All of the reports on assessment of compliance with
servicing criteria for asset-backed securities and their related attestation
reports on assessment of compliance with servicing criteria for asset-backed
securities required to be included in this report in accordance with Item 1122
of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 have been included as
an exhibit to this report, except as otherwise disclosed in this report. Any
material instances of noncompliance described in such reports have been
disclosed in this report on Form 10-K.
In giving the certifications above, I have reasonably relied
on information provided to me by the following unaffiliated parties: Deutsche
Bank National Trust Company.
Date: __________________
--------------------------------------
[Signature]
[Title]
O-1-2
EXHIBIT O-2
FORM OF TRUSTEE'S OFFICER'S CERTIFICATE
I, ____________________, a duly elected and acting officer of
Deutsche Bank National Trust Company (the "Trustee") hereby certify as follows:
Reference is hereby made to the Pooling and Servicing
Agreement dated as of January 1, 2007 (the "Pooling Agreement") by and among
IndyMac Bank, F.S.B., as seller and servicer, IndyMac MBS, Inc., as depositor
and Deutsche Bank National Trust Company, as trustee, pursuant to which was
created the Residential Asset Securitization Trust 200 - , Series 200 - (the
"Trust"). Capitalized terms used herein but not defined shall have the meanings
assigned to them in the Pooling Agreement.
1. I am an authorized officer of the Trustee and I have
reviewed this annual report on Form 10-K and all reports on Form 10-D required
to be filed in respect of the period covered by this report on Form 10-K of
Residential Asset Securitization Trust 200 - , Series 200 - (the "Exchange Act
Periodic Reports");
2. For purposes of this certificate, "Relevant Information"
means the information in the report on assessment of the Trustee's compliance
with the servicing criteria set forth in Item 1122(d) of Reg AB (the "Servicing
Assessment"), the registered public accounting firm's attestation provided in
accordance with Rules 13a-18 and 15d-18 under the Exchange Act and Section
1122(b) of Reg AB ( the "Attestation Report") applicable to the Trustee and the
Monthly Statements (excluding information provided, or based on information
provided, by the Servicer or any servicer) and those items in Exhibit S attached
to the Pooling and Servicing Agreement which indicate the 4.03 statement or the
Trustee as the responsible party during the Relevant Year. Based on my
knowledge, the Relevant Information, taken as a whole, does not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements made, in light of the circumstances under which such
statements were made, not misleading with respect to the period covered by this
annual report; and
3. Based on my knowledge, the distribution information
required to be provided by the Trustee under the Pooling and Servicing Agreement
is included in the Monthly Statements.
4. I am responsible for reviewing the activities performed by
the Trustee, as servicer under the Pooling Agreement during the Relevant Year.
Based upon the review required by the Pooling Agreement and except as disclosed
in the Servicing Assessment or Attestation Report, to the best of my knowledge,
the Trustee has fulfilled its obligations under the Pooling Agreement throughout
the Relevant Year. Relevant Year shall mean 200__.
DATED as of _____________, 200____.
By: ___________________________
Name:
Title:
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
Form of Class ▇-▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇-▇
EXHIBIT Q
FORM 10-D, FORM 8-K AND FORM 10-K
REPORTING RESPONSIBILITY
As to each item described below, the entity indicated as the Responsible Party
shall be primarily responsible for reporting the information to the Trustee
pursuant to Section 3.24(e). If the Trustee is indicated below as to any item,
then the Trustee is primarily responsible for obtaining that information.
Under Item 1 of Form 10-D: a) items marked "4.03 statement" are required to be
included in the periodic Distribution Date statement under Section 4.03,
provided by the Trustee based on information received from the Servicer; and b)
items marked "Form 10-D report" are required to be in the Form 10-D report but
not the 4.03 statement, provided by the party indicated. Information under all
other Items of Form 10-D is to be included in the Form 10-D report.
Form Item Description Responsible Party
-------------------------------------------------------------------------------------------------------------------
10-D Must be filed within 15 days of the distribution date for the mortgage-backed securities.
=========================================================================================
-------------------------------------------------------------------------------------------------------------------
1 Distribution and Pool Performance Information
-------------------------------------------------------------------------------------------------------------------
Item 1121(a) - Distribution and Pool Performance 4.03 Statement
Information
-------------------------------------------------------------------------------------------------------------------
(1) Any applicable record dates, accrual dates, 4.03 Statement
4.03 statement determination dates for
calculating distributions and actual distribution
dates for the distribution period.
-------------------------------------------------------------------------------------------------------------------
(2) Cash flows received and the sources thereof 4.03 Statement
for 4.03 statement distributions, fees and
expenses.
-------------------------------------------------------------------------------------------------------------------
(3) Calculated amounts and distribution of the 4.03 Statement
flow of 4.03 statement funds for the period
itemized by type and priority of payment,
including:
-------------------------------------------------------------------------------------------------------------------
(i) Fees or expenses accrued and paid,
with an 4.03 statement identification of the
general purpose of such fees and the party
receiving such fees or expenses.
-------------------------------------------------------------------------------------------------------------------
(ii) Payments accrued or paid with 4.03 Statement
respect to 4.03 statement enhancement or other
support identified in Item 1114 of Regulation AB
(such as insurance premiums or other enhancement
maintenance fees), with an identification of the
general purpose of such payments and the party
receiving such payments.
-------------------------------------------------------------------------------------------------------------------
(iii) Principal, interest and other 4.03 4.03 Statement
statement distributions accrued and paid on the
mortgage-backed securities by type and by class
or series and any principal or interest
shortfalls or carryovers.
-------------------------------------------------------------------------------------------------------------------
(iv) The amount of excess cash flow or 4.03 Statement
excess 4.03 statement spread and the disposition
of excess cash flow.
-------------------------------------------------------------------------------------------------------------------
(4) Beginning and ending principal balances of 4.03 Statement
the 4.03 statement mortgage-backed securities.
-------------------------------------------------------------------------------------------------------------------
(5) Interest rates applicable to the pool assets 4.03 Statement
and the 4.03 statement mortgage-backed
securities, as applicable.
Q-1
-------------------------------------------------------------------------------------------------------------------
(6) Beginning and ending balances of transaction 4.03 Statement
4.03 statement accounts, such as reserve
accounts, and material account activity during
the period.
-------------------------------------------------------------------------------------------------------------------
(7) Any amounts drawn on any credit enhancement 4.03 Statement
or other 4.03 statement support identified in
Item 1114 of Regulation AB, as applicable, and
the amount of coverage remaining under any such
enhancement, if known and applicable.
-------------------------------------------------------------------------------------------------------------------
(8) Number and amount of pool assets at the 4.03 Statement
beginning 4.03 statement and ending of each
period, and updated pool composition information,
such as weighted average coupon, weighted average
life, weighted average remaining term, pool Updated pool composition
factors and prepayment amounts. fields to be as specified by
Depositor information
from time to time
-------------------------------------------------------------------------------------------------------------------
(9) Delinquency and loss information for the period. 4.03 statement.
In addition, describe any material changes to the
information specified in Item 1100(b)(5) of Regulation Form 10-D report: Servicer
AB regarding the pool assets.
-------------------------------------------------------------------------------------------------------------------
(10) Information on the amount, terms and general
4.03 statement purpose of any advances made or
reimbursed during the period, including the
general use of funds advanced and the general
source of funds for reimbursements.
-------------------------------------------------------------------------------------------------------------------
(11) Any material modifications, extensions or Form 10-D report: Servicer
waivers to pool asset terms, fees, penalties or
payments during the distribution period or that
have cumulatively become material over time.
-------------------------------------------------------------------------------------------------------------------
(12) Material breaches of pool asset
representations or warranties or
transaction covenants. Form 10-D report: Trustee
(based on actual
knowledge to the extent
not notified by the
Servicer or the
Depositor)and Depositor
(to the extent of actual
knowledge)
-------------------------------------------------------------------------------------------------------------------
(13) Information on ratio, coverage or other 4.03 statement
tests used for determining any
early amortization, liquidation or other
performance trigger and whether the trigger was
met.
-------------------------------------------------------------------------------------------------------------------
(14) Information regarding any new issuance of Form 10-D report:
mortgage-backed securities Depositor
backed by the same asset pool,
[information regarding] any pool asset changes (other Form 10-D report: Servicer
than in connection with a pool asset converting into
cash in accordance with its terms),
-------------------------------------------------------------------------------------------------------------------
Q-2
such as additions or removals in connection
with a pre-funding or revolving period and pool
asset substitutions and repurchases (and
purchase rates, if applicable), and cash flows
available for future purchases, such as the
balances of any pre-funding or revolving
accounts, if applicable.
Disclose any material changes in the Form 10-D report: Servicer
solicitation, credit-granting, underwriting,
origination, acquisition or pool selection
criteria or procedures, as applicable, used to
originate, acquire or select the new pool
assets.
-------------------------------------------------------------------------------------------------------------------
Item 1121(b) - Pre-Funding or Revolving Period N/A
Information
Updated pool information as required under Item
1121(b).
-------------------------------------------------------------------------------------------------------------------
2 Legal Proceedings
------------------------------------------------------------------------------------
Item 1117 - Legal proceedings pending against the
following entities, or their respective property,
that is material to Certificateholders, including
proceedings known to be contemplated by
governmental authorities:
Sponsor (Seller)
Seller
Depositor
Depositor
Trustee
Trustee
Issuing entity
Depositor
Servicer, affiliated Servicer, other Servicer
servicing 20% or more of pool assets at time of Servicer
report, other material servicers
Originator of 20% or more of pool assets as of the
Cut-off Date Seller
Custodian
Trustee
-------------------------------------------------------------------------------------------------------------------
3 Sales of Securities and Use of Proceeds
------------------------------------------------------------------------------------
Information from Item 2(a) of Part II of Form 10-Q:
With respect to any sale of securities by the Depositor
sponsor, depositor or issuing entity, that are
backed by the same asset pool or are
otherwise issued by the issuing entity, whether
or not registered, provide the sales and use of
proceeds information in Item 701 of Regulation
S-K. Pricing information can be omitted if
securities were not registered.
Q-3
-------------------------------------------------------------------------------------------------------------------
4 Defaults Upon Senior Securities
------------------------------------------------------------------------------------
Information from Item 3 of Part II of Form 10-Q:
Report the occurrence of any Event of Default (after
expiration of any grace period and provision of any Trustee
required notice)
-------------------------------------------------------------------------------------------------------------------
5 Submission of Matters to a Vote of Security Holders
------------------------------------------------------------------------------------
Information from Item 4 of Part II of Form 10-Q Party submitting the
matter to Holders for
vote
-------------------------------------------------------------------------------------------------------------------
6 Significant Obligors of Pool Assets
------------------------------------------------------------------------------------
Item 1112(b) - Significant Obligor Financial Information* N/A
------------------------------------------------------------------------------------
*This information need only be reported on the
Form 10-D for the distribution period in which
updated information is required pursuant to the
Item.
-------------------------------------------------------------------------------------------------------------------
7 Significant Enhancement Provider Information
------------------------------------------------------------------------------------
Item 1114(b)(2) - Credit Enhancement Provider Financial Depositor
Information*
Determining applicable disclosure threshold
Obtaining required financial information or effecting
incorporation by reference
------------------------------------------------------------------------------------
Item 1115(b) - Derivative Counterparty Financial Depositor
Information*
Determining current maximum probable exposure
Determining current significance percentage
Obtaining required financial information or effecting
incorporation by reference
------------------------------------------------------------------------------------
*This information need only be reported on the
Form 10-D for the distribution period in which
updated information is required pursuant to the
Items.
-------------------------------------------------------------------------------------------------------------------
8 Other Information
------------------------------------------------------------------------------------
Disclose any information required to be reported
on Form The Responsible Party for 8-K during the
period covered by the Form 10-D but not the
applicable Form 8-K reported item as indicated
below
-------------------------------------------------------------------------------------------------------------------
9 Exhibits
------------------------------------------------------------------------------------
Distribution report Trustee
------------------------------------------------------------------------------------
Exhibits required by Item 601 of Regulation S-K, such as Depositor
material agreements
Q-4
-------------------------------------------------------------------------------------------------------------------
8-K Must be filed within four business days of an event reportable on Form 8-K.
===========================================================================
------------------------------------------------------------------------------------
1.01 Entry into a Material Definitive Agreement
------------------------------------------------------------------------------------
Disclosure is required regarding entry into or amendment Servicer; or any of the
of any definitive agreement that is material to the following that is a party
securitization, even if depositor is not a party. to the agreement if
Servicer is not: Trustee,
Examples: servicing agreement, custodial agreement. Sponsor, Depositor
Note: disclosure not required as to definitive
agreements that are fully disclosed in the prospectus
-------------------------------------------------------------------------------------------------------------------
1.02 Termination of a Material Definitive Agreement
-------------------------------------------------------------------------------------------------------------------
Disclosure is required regarding termination of any Servicer; or any of the
definitive agreement that is material to the following that is a party
securitization (other than expiration in accordance with to the agreement if
its terms), even if depositor is not a party. Servicer is not: Trustee,
Sponsor, Depositor
Examples: servicing agreement, custodial agreement.
-------------------------------------------------------------------------------------------------------------------
1.03 Bankruptcy or Receivership
------------------------------------------------------------------------------------
Disclosure is required regarding the bankruptcy Depositor
or receivership, if known to the
Depositor, with respect to any of the following:
Sponsor (Seller), Depositor, Servicer, affiliated
Servicer, other Servicer servicing 20% or more of pool
assets at time of report, other material servicers,
Trustee, significant obligor, credit enhancer (10% or
more), derivatives counterparty
-------------------------------------------------------------------------------------------------------------------
2.04 Triggering Events that Accelerate or Increase a Direct
Financial Obligation or an Obligation under an
Off-Balance Sheet Arrangement
------------------------------------------------------------------------------------
Includes an early amortization, performance Servicer/Trustee
trigger or other event, including event (to the extent of
of default, that would materially alter the actual knowledge)
payment priority/distribution of cash
flows/amortization schedule.
Disclosure will be made of events other than waterfall
triggers which are disclosed in the 4.03 statement
-------------------------------------------------------------------------------------------------------------------
3.03 Material Modification to Rights of Security Holders
------------------------------------------------------------------------------------
Disclosure is required of any material modification to Trustee
documents defining the rights of Certificateholders,
including the Pooling and Servicing Agreement
-------------------------------------------------------------------------------------------------------------------
5.03 Amendments to Articles of Incorporation or Bylaws;
Change in Fiscal Year
Q-5
------------------------------------------------------------------------------------
Disclosure is required of any amendment "to the Depositor
governing documents of the issuing entity"
-------------------------------------------------------------------------------------------------------------------
5.06 Change in Shell Company Status
------------------------------------------------------------------------------------
[Not applicable to ABS issuers] Depositor
-------------------------------------------------------------------------------------------------------------------
6.01 ABS Informational and Computational Material
------------------------------------------------------------------------------------
[Not included in reports to be filed under Section 3.18] Depositor
------------------------------------------------------------------------------------
6.02 Change of Servicer or Trustee
-------------------------------------------------------------------------------------------------------------------
Requires disclosure of any removal, replacement, Trustee or Servicer
substitution or addition of any servicer, affiliated
servicer, other servicer servicing 10% or more of pool
assets at time of report, other material servicers,
certificate administrator or trustee. Reg AB disclosure
about any new servicer or trustee is also required.
------------------------------------------------------------------------------------
6.03 Change in Credit Enhancement or Other External Support
------------------------------------------------------------------------------------
Covers termination of any enhancement in manner Depositor or Trustee
other than by its terms, the addition of an
enhancement, or a material change in the enhancement
provided. Applies to external credit enhancements as
well as derivatives. Reg AB disclosure about any new
enhancement provider is also required.
-------------------------------------------------------------------------------------------------------------------
6.04 Failure to Make a Required Distribution Trustee
-------------------------------------------------------------------------------------------------------------------
6.05 Securities Act Updating Disclosure
-------------------------------------------------------------------------------------------------------------------
If any material pool characteristic differs by 5% Depositor
or more at the time of issuance of the
securities from the description in the final
prospectus, provide updated Reg AB disclosure
about the actual asset pool.
------------------------------------------------------------------------------------
If there are any new servicers or originators Depositor
required to be disclosed under
Regulation AB as a result of the foregoing,
provide the information called for in Items 1108
and 1110 respectively.
-------------------------------------------------------------------------------------------------------------------
7.01 Regulation FD Disclosure Depositor
-------------------------------------------------------------------------------------------------------------------
8.01 Other Events
------------------------------------------------------------------------------------
Any event, with respect to which information is Depositor
not otherwise called for in Form 8-K,
that the registrant deems of importance to
security holders.
-------------------------------------------------------------------------------------------------------------------
9.01 Financial Statements and Exhibits The Responsible Party
applicable to reportable
event
-------------------------------------------------------------------------------------------------------------------
10-K Must be filed within 90 days of the fiscal year end for the registrant.
=======================================================================
-------------------------------------------------------------------------------------------------------------------
9B Other Information
------------------------------------------------------------------------------------
Disclose any information required to be reported The Responsible Party for
on Form 8-K during the fourth quarter covered by the applicable Form 8-K
the Form 10-K but not reported item as indicated above.
-------------------------------------------------------------------------------------------------------------------
15 Exhibits and Financial Statement Schedules
-------------------------------------------------------------------------------------------------------------------
Q-6
Item 1112(b) - Significant Obligor Financial Information Servicer
-------------------------------------------------------------------------------------------------------------------
Item 1114(b)(2) - Credit Enhancement Provider Financial Depositor
Information
Determining applicable disclosure threshold
Obtaining required financial information or effecting
incorporation by reference
-------------------------------------------------------------------------------------------------------------------
Item 1115(b) - Derivative Counterparty Financial Depositor
Information
Determining current maximum probable exposure
Determining current significance percentage
Obtaining required financial information or effecting
incorporation by reference
-------------------------------------------------------------------------------------------------------------------
Item 1117 - Legal proceedings pending against the
following entities, or their respective property,
that is material to Certificateholders, including
proceedings known to be contemplated by
governmental authorities:
Sponsor (Seller)
Seller
Depositor
Depositor
Trustee
Trustee
Issuing entity
Depositor
Servicer, affiliated Servicer, other Servicer
servicing 20% or more of pool assets at time of Servicer
report, other material servicers
Originator of 20% or more of pool assets as of the
Cut-off Date Servicer
-------------------------------------------------------------------------------------------------------------------
Item 1119 - Affiliations and relationships
between the following entities, or their
respective affiliates, that are material to
Certificateholders:
Sponsor (Seller)
Seller
Depositor
Depositor
Trustee
Servicer, affiliated Servicer, other Servicer Trustee (only as to
servicing the 20% or more of affiliations between
pool assets at time of report, other Trustee and such other
Q-7
material servicers parties listed)
Originator Servicer
Credit Enhancer/Support Provider
Significant Obligor Depositor
Depositor
Servicer
-------------------------------------------------------------------------------------------------------------------
Item 1122 - Assessment of Compliance with Servicing Each Party participating
Criteria in the servicing function
-------------------------------------------------------------------------------------------------------------------
Item 1123 - Servicer Compliance Statement Servicer
-------------------------------------------------------------------------------------------------------------------
Q-8
EXHIBIT R
FORM OF PERFORMANCE CERTIFICATION
(Trustee)
Re: The Pooling and Servicing Agreement dated as of January 1, 2007
(the "Pooling and Servicing Agreement") among IndyMac MBS, Inc.,
as Depositor, IndyMac Bank, F.S.B., as Seller and Servicer, and
the undersigned, as Trustee (the "Trustee")
I, ________________________________, the _______________________ of the
Trustee, certify to the Depositor and the Servicer, and their officers, with the
knowledge and intent that they will rely upon this certification, that:
(i) I have reviewed the report on assessment of the
Trustee's compliance with the servicing criteria set forth in Item
1122(d) of Regulation AB (the "Servicing Criteria"), provided in
accordance with Rules 13a-18 and 15d-18 under Securities Exchange
Act of 1934, as amended (the "Exchange Act") and Item 1122 of
Regulation AB (the "Servicing Assessment"), the registered public
accounting firm's attestation report provided in accordance with
Rules 13a-18 and 15d-18 under the Exchange Act and Section 1122(b)
of Regulation AB (the "Attestation Report"), all reports on Form
10-D containing statements to certificateholders filed in respect
of the period included in the year covered by the annual report of
the Trust Fund (collectively, the "Distribution Date Statements");
(ii) Assuming the accuracy and completeness of the
information delivered to the Trustee by the Servicer as provided
in the Pooling and Servicing Agreement and subject to paragraph
(iv) below, to its knowledge the distribution information
determined by the Trustee and set forth in the Distribution Date
Statements contained in all Form 10-D's included in the year
covered by the annual report of such Trust on Form 10-K for the
calendar year 200[ ], is complete and does not contain any
material misstatement of fact as of the last day of the period
covered by such annual report;
(iii) Based solely on the information delivered to the
Trustee by the Servicer as provided in the Pooling and Servicing
Agreement, the distribution information required under the Pooling
and Servicing Agreement to be contained in the Trust Fund's
Distribution Date Statements, is included in such Distribution
Date Statements;
(iv) The Trustee is not certifying as to the accuracy,
completeness or correctness of the information which it received
from the Servicer and did not independently verify or confirm the
accuracy, completeness or correctness of the information provided
by the Servicer;
(v) I am responsible for reviewing the activities performed
by the Trustee as a person "performing a servicing function" under
the Pooling and Servicing Agreement, and based on my knowledge and
the compliance review conducted in preparing the Servicing
Assessment and except as disclosed in the Servicing Assessment or
the Attestation Report, the Trustee has fulfilled its obligations
under the Pooling and Servicing Agreement; and
(vi) The Servicing Assessment and Attestation Report
required to be provided by the Trustee and by Subcontractor, if
any, pursuant to the Pooling and Servicing Agreement, have been
provided to the Servicer and the Depositor. Any material instances
of noncompliance
R-1
described in such reports have been disclosed to the Servicer and
the Depositor. Any material instance of noncompliance with the
Servicing Criteria has been disclosed in such reports.
Date: _________________________
By: ____________________________
Name:
Title:
Q-2
EXHIBIT S
FORM OF SERVICING CRITERIA TO BE ADDRESSED IN
ASSESSMENT OF COMPLIANCE STATEMENT
Key:
X - obligation
Where there are multiple checks for criteria the attesting party will identify
in their management assertion that they are attesting only to the portion of the
distribution chain they are responsible for in the related transaction
agreements.
---------------------------------------------------------------------------------------------
Reg AB
Reference Servicing Criteria Servicer Trustee Notes
---------------------------------------------------------------------------------------------
1122(d)(1)(i) Policies and procedures are instituted X X
to monitor any performance or other
triggers and events of default in
accordance with the transaction
agreements.
---------------------------------------------------------------------------------------------
1122(d)(1)(ii) If any material servicing activities X X
are outsourced to third parties,
policies and procedures are instituted
to monitor the third party's
performance and compliance with such
servicing activities.
----------------- ----------------------------------------- --------- ---------- ------------
----------------- ----------------------------------------- --------- ---------- ------------
1122(d)(1)(iii) Any requirements in the transaction NA
agreements to maintain a back-up
servicer for the Pool Assets are
maintained.
---------------------------------------------------------------------------------------------
1122(d)(1)(iv) A fidelity bond and errors and X
omissions policy is in effect on the
party participating in the servicing
function throughout the reporting
period in the amount of coverage
required by and otherwise in accordance
with the terms of the transaction
agreements.
---------------------------------------------------------------------------------------------
S-1
---------------------------------------------------------------------------------------------
Reg AB
Reference Servicing Criteria Servicer Trustee Notes
---------------------------------------------------------------------------------------------
1122(d)(2)(i) Payments on pool assets are deposited X X
into the appropriate custodial bank
accounts and related bank clearing
accounts no more than two business
days following receipt, or such other
number of days specified in the
transaction agreements.
---------------------------------------------------------------------------------------------
1122(d)(2)(ii) Disbursements made via wire transfer X X
on behalf of an obligor or to an
investor are made only by authorized
personnel.
---------------------------------------------------------------------------------------------
1122(d)(2)(iii) Advances of funds or guarantees X
regarding collections, cash flows or
distributions, and any interest or
other fees charged for such advances,
are made, reviewed and approved as
specified in the transaction
agreements.
----------------- --------------------------------------- ----------- ----------- -----------
----------------- --------------------------------------- ----------- ----------- -----------
1122(d)(2)(iv) The related accounts for the X X
transaction, such as cash reserve
accounts or accounts established as a
form of over collateralization, are
separately maintained (e.g., with
respect to commingling of cash) as
set forth in the transaction
agreements.
---------------------------------------------------------------------------------------------
1122(d)(2)(v) Each custodial account is maintained X X
at a federally insured depository
institution as set forth in the
transaction agreements. For purposes
of this criterion, "federally insured
depository institution" with respect
to a foreign financial institution
means a foreign financial institution
that meets the requirements of Rule
13k-1(b)(1) of the Securities
Exchange Act.
---------------------------------------------------------------------------------------------
1122(d)(2)(vi) Unissued checks are safeguarded so as
to prevent unauthorized access. X
---------------------------------------------------------------------------------------------
1122(d)(2)(vii) Reconciliations are prepared on a X X
monthly basis for all asset-backed
securities related bank accounts,
including custodial accounts and
related bank clearing accounts. These
reconciliations are (A)
mathematically accurate; (B) prepared
within 30 calendar days after the
bank statement cutoff date, or such
other number of days specified in the
transaction agreements; (C) reviewed
and approved by someone other than
the person who prepared the
reconciliation; and (D) contain
explanations for reconciling items.
These reconciling items are resolved
within 90 calendar days of their
original identification, or such
other number of days specified in the
transaction agreements.
---------------------------------------------------------------------------------------------
U-2
---------------------------------------------------------------------------------------------
Reg AB
Reference Servicing Criteria Servicer Trustee Notes
---------------------------------------------------------------------------------------------
1122(d)(3)(i) Reports to investors, including those X X
to be filed with the Commission, are
maintained in accordance with the
transaction agreements and applicable
Commission requirements. Specifically,
such reports (A) are prepared in
accordance with timeframes and other
terms set forth in the transaction
agreements; (B) provide information
calculated in accordance with the
terms specified in the transaction
agreements; (C) are filed with the
Commission as required by its rules
and regulations; and (D) agree with
investors' or the trustee's records as
to the total unpaid principal balance
and number of Pool Assets serviced by
the Servicer.
---------------------------------------------------------------------------------------------
1122(d)(3)(ii) Amounts due to investors are allocated X X
and remitted in accordance with
timeframes, distribution priority and
other terms set forth in the
transaction agreements.
---------------------------------------------------------------------------------------------
1122(d)(3)(iii) Disbursements made to an investor are X X
posted within two business days to the
Servicer's investor records, or such
other number of days specified in the
transaction agreements.
---------------------------------------------------------------------------------------------
1122(d)(3)(iv) Amounts remitted to investors per the X X
investor reports agree with cancelled
checks, or other form of payment, or
custodial bank statements.
---------------------------------------------------------------------------------------------
U-3
---------------------------------------------------------------------------------------------
Reg AB
Reference Servicing Criteria Servicer Trustee Notes
---------------------------------------------------------------------------------------------
1122(d)(4)(i) Collateral or security on pool assets is X X
maintained as required by the transaction
agreements or related pool asset documents.
---------------------------------------------------------------------------------------------
1122(d)(4)(ii) Pool assets and related documents are X X
safeguarded as required by the transaction
agreements.
---------------------------------------------------------------------------------------------
1122(d)(4)(iii) Any additions, removals or substitutions to X X
the asset pool are made, reviewed and
approved in accordance with any conditions or
requirements in the transaction agreements.
---------------------------------------------------------------------------------------------
1122(d)(4)(iv) Payments on pool assets, including any X
payoffs, made in accordance with the related
pool asset documents are posted to the
Servicer's obligor records maintained no more
than two business days after receipt, or such
other number of days specified in the
transaction agreements, and allocated to
principal, interest or other items (e.g.,
escrow) in accordance with the related pool
asset documents.
---------------------------------------------------------------------------------------------
1122(d)(4)(v) The Servicer's records regarding the pool X
assets agree with the Servicer's records
with respect to an obligor's unpaid
principal balance.
---------------------------------------------------------------------------------------------
1122(d)(4)(vi) Changes with respect to the terms or status X
of an obligor's pool assets (e.g., loan
modifications or re-agings) are made,
reviewed and approved by authorized
personnel in accordance with the transaction
agreements and related pool asset
documents.
---------------------------------------------------------------------------------------------
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., X
forbearance plans, modifications and deeds in
lieu of foreclosure, foreclosures and
repossessions, as applicable) are initiated,
conducted and concluded in accordance with
the timeframes or other requirements
established by the transaction agreements.
---------------------------------------------------------------------------------------------
1122(d)(4)(viii) Records documenting collection efforts are X
maintained during the period a pool asset is
delinquent in accordance with the transaction
agreements. Such records are maintained on at
least a monthly basis, or such other period
specified in the transaction agreements, and
describe the entity's activities in
monitoring delinquent pool assets including,
for example, phone calls, letters and payment
rescheduling plans in cases where delinquency
is deemed temporary (e.g., illness or
unemployment).
---------------------------------------------------------------------------------------------
1122(d)(4)(ix) Adjustments to interest rates or rates of X
return for pool assets with variable rates
are computed based on the related pool asset
documents.
---------------------------------------------------------------------------------------------
U-4
---------------------------------------------------------------------------------------------
Reg AB
Reference Servicing Criteria Servicer Trustee Notes
---------------------------------------------------------------------------------------------
1122(d)(4)(x) Regarding any funds held in trust for an X
obligor (such as escrow accounts): (A) such
funds are analyzed, in accordance with the
obligor's pool asset documents, on at least
an annual basis, or such other period
specified in the transaction agreements; (B)
interest on such funds is paid, or credited,
to obligors in accordance with applicable
pool asset documents and state laws; and (C)
such funds are returned to the obligor within
30 calendar days of full repayment of the
related pool assets, or such other number of
days specified in the transaction agreements.
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1122(d)(4)(xi) Payments made on behalf of an obligor (such X
as tax or insurance payments) are made on or
before the related penalty or expiration
dates, as indicated on the appropriate bills
or notices for such payments, provided that
such support has been received by the
servicer at least 30 calendar days prior to
these dates, or such other number of days
specified in the transaction agreements.
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1122(d)(4)(xii) Any late payment penalties in connection with X
any payment to be made on behalf of an
obligor are paid from the Servicer's funds
and not charged to the obligor, unless the
late payment was due to the obligor's error
or omission.
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1122(d)(4)(xiii) Disbursements made on behalf of an obligor are X
posted within two business days to the obligor's
records maintained by the servicer, or such
other number of days specified in the transaction
agreements.
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1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible X
accounts are recognized and recorded in accordance
th the transaction
agreements.
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1122(d)(4)(xv) Any external enhancement or other support, X (With X
identified in Item 1114(a)(1) through (3) or respect
Item 1115 of Regulation AB, is maintained as to a
set forth in the transaction agreements. swap
dis-
closure
event)
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EXHIBIT T
[FORM OF] LIST OF ITEM 1119 PARTIES
ASSET BACKED CERTIFICATES
Series 200_-__
[Date]
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Party Contact Information
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T-1
EXHIBIT U
FORM OF ▇▇▇▇▇▇▇▇-▇▇▇▇▇ CERTIFICATION
(Replacement of Servicer)
Re: Residential Asset Securitization Trust 2007-A1
The undersigned Servicer hereby certifies to the Depositor and its
officers, directors and Affiliates (collectively, the "Certification Parties")
as follows, with the knowledge and intent that the Certification Parties will
rely on this Certification in connection with the certification concerning the
Trust Fund to be signed by an officer of the Depositor and submitted to the
Securities and Exchange Commission pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002:
1. I have reviewed the servicer compliance statement of the Servicer
provided in accordance with Item 1123 of Regulation AB (the "Compliance
Statement"), the report on assessment of the Servicer's compliance with the
servicing criteria set forth in Item 1122(d) of Regulation AB (the "Servicing
Criteria"), provided in accordance with Rules 13a-18 and 15d-18 under Securities
Exchange Act of 1934, as amended (the "Exchange Act") and Item 1122 of
Regulation AB (the "Servicing Assessment"), the registered public accounting
firm's attestation report provided in accordance with Rules 13a-18 and 15d-18
under the Exchange Act and Section 1122(b) of Regulation AB (the "Attestation
Report"), and all servicing reports, officer's certificates and other
information relating to the servicing of the Mortgage Loans by the Servicer
during 200[ ] that were delivered by the Servicer to the Trustee pursuant to the
Agreement (collectively, the "Servicing Information");
2. Based on my knowledge, the Servicing Information, taken as a whole,
does not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in the light of the
circumstances under which such statements were made, not misleading with respect
to the period of time covered by the Servicing Information;
3. Based on my knowledge, all of the Servicing Information required to
be provided by the Servicer under the Agreement has been provided to the
Depositor or the Trustee, as applicable;
4. I am responsible for reviewing the activities performed by the
Servicer as servicer under the Servicing Agreement (the "Pooling and Servicing
Agreement") relating to the above-referenced Series, among IndyMac MBS, Inc., as
Depositor, IndyMac Bank, F.S.B., as Seller and Servicer, and Deutsche Bank
National Trust Company, as Trustee and based on my knowledge and the compliance
review conducted in preparing the Compliance Statement and except as disclosed
in the Compliance Statement, the Pooling and Servicing Assessment or the
Attestation Report, the Servicer has fulfilled its obligations under the
Agreement in all material respects; and
5. The Compliance Statement required to be delivered by the Servicer
pursuant to the Pooling and Servicing Agreement, and the Servicing Assessment
and Attestation Report required to be provided by the Servicer and by any
Reporting Subcontractor pursuant to the Agreement, have been provided to the
Depositor. Any material instances of noncompliance described in such reports
have been disclosed to the Depositor. Any material instance of noncompliance
with the Servicing Criteria has been disclosed in such reports.
U-1
[SERVICER]
By:________________________________
Name:
Title:
Date: _________________________
U-2