EXHIBIT 99.1
____________
The Pooling and Servicing Agreement
================================================================================
INDYMAC MBS, INC.
Depositor
INDYMAC BANK, F.S.B.
Seller and Servicer
DEUTSCHE BANK NATIONAL TRUST COMPANY
Trustee
________________________________________
POOLING AND SERVICING AGREEMENT
Dated as of February 1, 2007
________________________________________
RESIDENTIAL ASSET SECURITIZATION TRUST
Series 2007-A3
MORTGAGE PASS-THROUGH CERTIFICATES
Series 2007-C
================================================================================
TABLE OF CONTENTS
Page
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ARTICLE ONE DEFINITIONS...........................................................................................................9
Section 1.01 Definitions........................................................................................9
Section 1.02 Rules of Construction.............................................................................40
ARTICLE TWO CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES.........................................................42
Section 2.01 Conveyance of Mortgage Loans......................................................................42
Section 2.02 Acceptance by the Trustee of the Mortgage Loans...................................................45
Section 2.03 Representations, Warranties, and Covenants of the Seller and the Servicer.........................47
Section 2.04 Representations and Warranties of the Depositor as to the Mortgage Loans..........................49
Section 2.05 Delivery of Opinion of Counsel in Connection with Substitutions...................................49
Section 2.06 Execution and Delivery of Certificates............................................................49
Section 2.07 REMIC Matters.....................................................................................50
ARTICLE THREE ADMINISTRATION AND SERVICING OF MORTGAGE LOANS.....................................................................51
Section 3.01 Servicer to Service Mortgage Loans................................................................51
Section 3.02 [Reserved]........................................................................................52
Section 3.03 Rights of the Depositor and the Trustee in Respect of the Servicer................................52
Section 3.04 [Reserved]........................................................................................52
Section 3.05 Trustee to Act as Servicer........................................................................52
Section 3.06 Collection of Mortgage Loan Payments; Certificate Account; Distribution Account...................52
Section 3.07 Collection of Taxes, Assessments and Similar Items; Escrow Accounts...............................55
Section 3.08 Access to Certain Documentation and Information Regarding the Mortgage Loans......................56
Section 3.09 Permitted Withdrawals from the Certificate Account and the Distribution Account...................56
Section 3.10 Maintenance of Hazard Insurance; Maintenance of Primary Insurance Policies........................57
Section 3.11 Enforcement of Due-On-Sale Clauses; Assumption Agreements.........................................58
Section 3.12 Realization Upon Defaulted Mortgage Loans.........................................................59
Section 3.13 Trustee to Cooperate; Release of Mortgage Files...................................................61
Section 3.14 Documents, Records and Funds in Possession of the Servicer to be Held for the Trustee.............62
Section 3.15 Servicing Compensation............................................................................62
Section 3.16 Access to Certain Documentation...................................................................63
Section 3.17 Annual Statement as to Compliance.................................................................63
Section 3.18 Errors and Omissions Insurance; Fidelity Bonds....................................................63
Section 3.19 [Reserved]........................................................................................64
Section 3.20 Prepayment Charges................................................................................64
ARTICLE FOUR DISTRIBUTIONS AND ADVANCES BY THE SERVICER..........................................................................65
i
Section 4.01 Advances..........................................................................................65
Section 4.02 Priorities of Distribution........................................................................66
Section 4.03 Cross-Collateralization; Adjustments to Available Funds...........................................70
Section 4.04 [Reserved]........................................................................................71
Section 4.05 Allocation of Realized Losses.....................................................................71
Section 4.06 Monthly Statements to Certificateholders..........................................................72
Section 4.07 [Reserved]........................................................................................75
Section 4.08 [Reserved]........................................................................................75
Section 4.09 Determination of Pass-Through Rates for LIBOR Certificates........................................75
ARTICLE FIVE THE CERTIFICATES....................................................................................................77
Section 5.01 The Certificates..................................................................................77
Section 5.02 Certificate Register; Registration of Transfer and Exchange of Certificates.......................77
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates.................................................81
Section 5.04 Persons Deemed Owners.............................................................................81
Section 5.05 Access to List of Certificateholders' Names and Addresses.........................................81
Section 5.06 Maintenance of Office or Agency...................................................................82
ARTICLE SIX THE DEPOSITOR AND THE SERVICER.......................................................................................83
Section 6.01 Respective Liabilities of the Depositor and the Servicer..........................................83
Section 6.02 Merger or Consolidation of the Depositor or the Servicer..........................................83
Section 6.03 Limitation on Liability of the Depositor, the Seller, the Servicer, and Others....................83
Section 6.04 Limitation on Resignation of the Servicer.........................................................84
ARTICLE SEVEN DEFAULT ...........................................................................................................85
Section 7.01 Events of Default.................................................................................85
Section 7.02 Trustee to Act; Appointment of Successor..........................................................86
Section 7.03 Notification to Certificateholders................................................................87
ARTICLE EIGHT CONCERNING THE TRUSTEE.............................................................................................89
Section 8.01 Duties of the Trustee.............................................................................89
Section 8.02 Certain Matters Affecting the Trustee.............................................................89
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans.............................................91
Section 8.04 Trustee May Own Certificates......................................................................91
Section 8.05 Trustee's Fees and Expenses.......................................................................91
Section 8.06 Eligibility Requirements for the Trustee..........................................................92
Section 8.07 Resignation and Removal of the Trustee............................................................92
Section 8.08 Successor Trustee.................................................................................93
Section 8.09 Merger or Consolidation of the Trustee............................................................94
Section 8.10 Appointment of Co-Trustee or Separate Trustee.....................................................94
Section 8.11 Tax Matters.......................................................................................95
ARTICLE NINE TERMINATION.........................................................................................................98
Section 9.01 Termination upon Liquidation or Purchase of the Mortgage Loans....................................98
ii
Section 9.02 Final Distribution on the Certificates............................................................98
Section 9.03 Additional Termination Requirements...............................................................99
ARTICLE TEN MISCELLANEOUS PROVISIONS............................................................................................101
Section 10.01 Amendment........................................................................................101
Section 10.02 Recordation of Agreement; Counterparts...........................................................102
Section 10.03 Governing Law....................................................................................103
Section 10.04 Intention of Parties.............................................................................103
Section 10.05 Notices .........................................................................................103
Section 10.06 Severability of Provisions.......................................................................104
Section 10.07 Assignment.......................................................................................104
Section 10.08 Limitation on Rights of Certificateholders.......................................................104
Section 10.09 Inspection and Audit Rights......................................................................105
Section 10.10 Certificates Nonassessable and Fully Paid........................................................105
Section 10.11 Official Record..................................................................................105
Section 10.12 Protection of Assets.............................................................................106
Section 10.13 Qualifying Special Purpose Entity................................................................106
ARTICLE ELEVEN EXCHANGE ACT REPORTING...........................................................................................107
Section 11.01 Filing Obligations...............................................................................107
Section 11.02 Form 10-D Filings................................................................................107
Section 11.03 Form 8-K Filings.................................................................................108
Section 11.04 Form 10-K Filings................................................................................108
Section 11.05 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification.....................................................................111
Section 11.06 Form 15 Filing...................................................................................111
Section 11.07 Report on Assessment of Compliance and Attestation...............................................111
Section 11.08 Use of Subcontractors............................................................................112
Section 11.09 Amendments.......................................................................................113
iii
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: [Reserved].............................................................................................P-1
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Exhibit Q: Reporting Responsibility...............................................................................Q-1
Exhibit R: Form of Performance Certification (Trustee)............................................................R-1
Exhibit S: Form of Servicing Criteria to be Addressed in Assessment of Compliance Statement.......................S-1
Exhibit T: List of 1119 Parties...................................................................................T-1
Exhibit U: Form of ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification (Replacement of Servicer).........................................U-1
v
THIS POOLING AND SERVICING AGREEMENT, dated as of February 1, 2007, among
INDYMAC MBS, INC., a Delaware corporation, as depositor (the "Depositor"),
IndyMac Bank, F.S.B. ("IndyMac"), a federal savings bank, as seller (in that
capacity, the "Seller") and as servicer (in that capacity, the "Servicer"), and
Deutsche Bank National Trust Company, a national banking association, as trustee
(in that capacity, 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 four REMICs ("REMIC 1", "REMIC 2", "REMIC 3" 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 REMIC 3 Regular Interests.
REMIC 3 will hold as assets the REMIC 2 Regular Interests. REMIC 2 will hold as
assets the REMIC 1 Regular Interests. REMIC 1 will hold as assets all property
of the Trust Fund. 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 REMIC 1 Regular Interest, REMIC 2 Regular Interest and
REMIC 3 Regular Interest, as defined below, is designated as a regular interest
in the REMIC 1, REMIC 2, and REMIC 3, respectively. The latest possible maturity
date of all REMIC regular interests created in this Agreement shall be the
Latest Possible Maturity Date. All amounts in respect of waived Prepayment
Charges paid by the Servicer to the Class 2-A-2 Certificates pursuant to Section
3.20(b) hereof will be treated as paid directly by the Servicer to the Class
2-A-2 Certificates and not as paid by or through any REMIC created hereunder.
REMIC 1
REMIC 1 will issue a single regular interest corresponding to each
Mortgage Loan having an Adjusted Net Mortgage Rate less than or equal to 5.75%,
two regular interests (referred to collectively herein as the "Class 1-A
Interests" and the "Class 1-B Interests") for each Mortgage Loan having an
Adjusted Net Mortgage Rate greater than 5.75% and less than 7.00%.
Each REMIC 1 Regular Interest corresponding to a Mortgage Loan having an
Adjusted Net Mortgage Rate less than or equal to 5.75% and each Class 1-A
Interest will have a Pass Through Rate of 5.75% and a principal balance,
following the allocation of scheduled principal, prepayments of principal and
Realized Losses, equal to the product of: (i) the Applicable Fraction in respect
of Collateral Allocation Group 1 and (ii) the principal balance of the related
Mortgage Loan. For purposes of the calculating the Calculation Rate, each of the
foregoing REMIC 1 Regular Interests will be treated as part of Collateral
Allocation Group 1.
Each of the Class 1-B Interests will have a Pass Through Rate of 7.00% and
a principal balance, following the allocation of scheduled principal,
prepayments of principal and Realized Losses, equal to the product of: (i) the
Applicable Fraction in respect of Collateral Allocation Group 2 and (ii) the
1
principal balance of the related Mortgage Loan. For purposes of the calculating
the Calculation Rate, each Class 1-B Interest will be treated as part of
Collateral Allocation Group 2.
REMIC 1 also will issue the Class 1-PO, Class 1-$100 Interest and
Class R-1 Interest. The Class 1-PO Interests will have a principal balance,
following the allocation of scheduled principal, prepayments of principal and
Realized Losses, equal to the principal balance of the Class PO Certificates and
will not be entitled to receive distributions of interest. The Class 1-$100
Interest will have a principal balance and pass through rate equal to the Class
A-R Certificates. The Class R-1 Interest is the residual interest and will not
be entitled to any distributions of interest or principal.
REMIC 2
The REMIC 2 Regular Interests will have the initial principal balance,
Pass-Through Rates and corresponding Collateral Allocation Groups as set forth
in the following table:
=========================================================== ==================== ================= ========================
Initial Principal Corresponding Collateral
REMIC 2 Interests Balance Pass-Through Rate Allocation Group
___________________________________________________________ ____________________ _________________ ________________________
A-1 (0.9% of AB Collateral Allocation Group 1) (1) 5.75% 1
___________________________________________________________ ____________________ _________________ ________________________
B-1 (0.1% of AB Collateral Allocation Group 1) (1) 5.75% 1
___________________________________________________________ ____________________ _________________ ________________________
C-1 (Excess of Collateral Allocation Group 1) (1) 5.75% 1
___________________________________________________________ ____________________ _________________ ________________________
2-PO (1) 0.00% N/A
___________________________________________________________ ____________________ _________________ ________________________
A-2 (0.9% of AB Collateral Allocation Group 2) (1) 7.00% 2
___________________________________________________________ ____________________ _________________ ________________________
B-2 (0.1% of AB Collateral Allocation Group 2) (1) 7.00% 2
___________________________________________________________ ____________________ _________________ ________________________
C-2 (Excess of Collateral Allocation Group 2) (1) 7.00% 2
___________________________________________________________ ____________________ _________________ ________________________
2-$100 $100 5.75% N/A
___________________________________________________________ ____________________ _________________ ________________________
R-2 (2) (2) N/A
=========================================================== ==================== ================= ============++==========
(1) Each Class A Interest will have a principal balance initially equal to
0.9% of the Assumed Balance ("AB") of its corresponding Collateral
Allocation Group. Each Class B Interest will have a principal balance
initially equal to 0.1% of the AB of its corresponding Collateral
Allocation Group. The initial principal balance of each Class C Interest
will equal the excess of the initial aggregate principal balance of its
corresponding Collateral Allocation Group over the initial aggregate
principal balances of the Class A and Class B Interests (and the 2-$100
Interest in the case of the Class C-1 Interest) corresponding to such
Collateral Allocation Group. On each Distribution Date following the
allocation of scheduled principal, prepayments and Realized Losses, the
Class 2-PO and 2-$100 Interests will have the principal balances of the
Class PO and Class A-R Certificates, respectively.
(2) The Class R-2 Interest is the sole class of residual interest in REMIC 2.
It has no principal balance and pays no principal or interest.
On each Distribution Date, interest and principal collections that are not
allocated to the Class 2-PO Interests shall be distributed with respect to the
REMIC 2 Interests in the following manner:
(1) Interest is to be distributed with respect to each REMIC 2 Interest
according to the formulas described above;
2
(2) If a Cross-Over Situation does not exist with respect to any Class of
Interests, then Principal Amounts and Realized Losses arising with respect
to each Collateral Allocation Group will be allocated: first to cause the
Collateral Allocation Group's corresponding Class A and Class B to equal,
respectively, 0.9% of the AB and 0.1% of the AB; and second to the
Collateral Allocation Group's corresponding Class C Interest;
(3) If a Cross-Over Situation exists with respect to the Class A and B
Interests then:
(a) if the Calculation Rate in respect of such Class A and Class B
Interests is less than the Pass Through Rate in respect of the
Subordinate Certificates, Principal Relocation Payments will be made
proportionately to the outstanding Class A Interests prior to any
other distributions of principal from each such Collateral
Allocation Group; and
(b) if the Calculation Rate in respect of such outstanding Class A and
Class B Interests is greater than the Pass Through Rate in respect
of the Subordinate Certificates, Principal Relocation Payments will
be made proportionately to the outstanding Class B Interests prior
to any other distributions of principal from each such Collateral
Allocation Group.
In case of either (a) or (b), Principal Relocation Payments will be made
so as to cause the Calculation Rate in respect of the outstanding Class A
and B Interests to equal the Pass Through Rate in respect of the
Subordinate Certificates. With respect to each Collateral Allocation
Group, if (and to the extent that) the sum of (a) the principal payments
comprising the Principal Amount received during the Due Period and (b) the
Realized Losses on the Mortgage Loans in that Collateral Allocation Group,
are insufficient to make the necessary reductions of principal on the
Class A and B Interests, then interest will be added to the Collateral
Allocation Group's other REMIC 1 Interests that are not receiving
Principal Relocation Payments, in proportion to their principal balances.
(c) Unless required to achieve the Calculation Rate, the outstanding
aggregate Class A and B Interests will not be reduced below 1% of
the excess of (i) the aggregate Stated Principal Balance of the
Mortgage Loans as of the end of any Due Period over (ii) the
Certificate Balance Senior Certificates (excluding the Class A-R
Certificates) as of the related Distribution Date (after taking
into account distributions of principal on such Distribution
Date).
If (and to the extent that) the limitation in paragraph (c) prevents the
distribution of principal to the Class A and Class B Interests of a
Collateral Allocation Group, and if the Collateral Allocation Group's
Class C Interest has already been reduced to zero, then the excess
principal from that Collateral Allocation Group will be paid to the Class
C Interests of the other Collateral Allocation Group, the aggregate Class
A and Class B Interests of which are less than 1% of the AB. If the
Mortgage Loans in the Collateral Allocation Group of the Class C Interest
that receives such payment has a weighted average Adjusted Net Mortgage
Rate below the weighted average Adjusted Net Mortgage Rate of the Mortgage
Loans in the Collateral Allocation Group making the payment, then the
payment will be treated by the REMIC 2 as a Realized Loss. Conversely, if
the Mortgage Loans in the Collateral Allocation Group of the Class C
Interest that receives such payment have a weighted average Adjusted Net
Mortgage Rate above the weighted average Adjusted Net Mortgage Rate of the
Mortgage Loans in the Collateral Allocation Group making the payment, then
the payment will be treated by the REMIC 2 as a reimbursement for prior
Realized Losses.
3
REMIC 3
The following table sets forth characteristics of the REMIC 3 Regular
Interests:
================================================================================
Class
Principal Pass-Through Allocation of Allocation
Class Designation Balance Rate Interest of Principal
--------------------------------------------------------------------------------
Class 3-1-A-1 (1) 5.75% Class 1-A-1, Class 1-A-1,
1-A-2 1-A-2
--------------------------------------------------------------------------------
Class 3-1-A-3 (1) 5.75% Class 1-A-3 Class 1-A-3
--------------------------------------------------------------------------------
Class 3-1-A-4 (1) 5.75% Class 1-A-4 Class 1-A-4
--------------------------------------------------------------------------------
Class 3-2-A-1 (1) 7.00% Class 2-A-1, Class 2-A-1
Class 2-A-2
--------------------------------------------------------------------------------
Class 3-PO (1) 0.00% N/A Class PO
--------------------------------------------------------------------------------
Class 3-$100 (1) 5.75% Class A-R Class A-R
--------------------------------------------------------------------------------
Class 3-B-1 (1) Weighted Class B-1 Class B-1
Average Rate -
0.3937% (2)
--------------------------------------------------------------------------------
Class 3-B-1IO (1) 0.3937% Class B-IO N/A
--------------------------------------------------------------------------------
Class 3-B-2 (1) Weighted Class B-2 Class B-2
Average Rate -
0.1437% (2)
--------------------------------------------------------------------------------
Class 3-B-2IO (1) 0.1437% Class B-2IO N/A
--------------------------------------------------------------------------------
Class 3-B-3 (1) Weighted Class B-3 Class B-3
Average Rate
(2)
--------------------------------------------------------------------------------
Class 3-B-4 (1) Weighted Class B-4 Class B-4
Average Rate
(2)
--------------------------------------------------------------------------------
Class 3-B-5 (1) Weighted Class B-5 Class B-5
Average Rate
(2)
--------------------------------------------------------------------------------
Class 3-B-6 (1) Weighted Class B-6 Class B-6
Average Rate
(2)
--------------------------------------------------------------------------------
Class R-3(3) N/A N/A N/A N/A
================================================================================
(1) For each Distribution Date, following the allocation of scheduled
principal, Principal Prepayments and Realized Losses, the principal
balance for each such Class 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".
(2) The Weighted Average Rate for a Class of Subordinated Certificates for the
Interest Accrual Period for any Distribution Date will be a per annum rate
equal to the sum of (i) 5.75% multiplied by the excess of the sum of the
related Applicable Fraction for Collateral Allocation Group 1 of the
aggregate Stated Principal Balance of each Mortgage Loan included in
Collateral Allocation Group 1 as of the Due Date in the month preceding
the month of that Distribution Date (after giving effect to Principal
Prepayments received in the Prepayment Period related to that prior Due
Date) over the Class Certificate Balance of the Group 1 Senior
Certificates immediately prior to that Distribution Date and (ii) 7.00%
multiplied by the excess of the sum of the related Applicable Fraction for
Collateral Allocation Group 2 of the aggregate Stated Principal Balance of
each Mortgage Loan included in Collateral Allocation Group 2 as of the Due
Date in the prior month (after giving effect to Principal Prepayments
received in the Prepayment Period related to that prior Due Date) over the
aggregate Class Certificate Balance of the Group 2 Senior Certificates
immediately prior to that Distribution Date, divided by the aggregate
Class Certificate
4
Balance of the Subordinated Certificates immediately prior to that
Distribution Date. The Pass-Through Rate for each class of Subordinated
Certificates for the initial Interest Accrual Period is 6.3938% per annum.
For federal income tax purposes, the Pass-Through Rate for each class of
Subordinated Certificates shall equal the Calculation Rate.
(3) The Class R-3 Interest is the sole class of residual interest in REMIC 3.
It has no principal balance and pays no principal or interest.
The Master REMIC
The following table sets forth characteristics of the Certificates,
together with the minimum denominations and integral multiples in excess thereof
in which such Classes shall be issuable (except that one Certificate of each
Class of Certificates may be issued in a different amount):
============================ =========================== ============================== ====================== =====================
Integral
Initial Class Minimum Multiples in
Class Designation Certificate Balance Pass-Through Rate Denomination Excess of Minimum
____________________________ ___________________________ ______________________________ ______________________ _____________________
Class 1-A-1 $50,000,000 Floating (1) $ 100,000 $1,000
____________________________ ___________________________ ______________________________ ______________________ _____________________
Class 1-A-2 $6,521,739 Floating (2) $ 100,000 $1,000
____________________________ ___________________________ ______________________________ ______________________ _____________________
Class 1-A-3 $93,816,261 5.75% $ 100,000 $1,000
____________________________ ___________________________ ______________________________ ______________________ _____________________
Class 1-A-4 $16,556,000 5.75% $ 100,000 $1,000
____________________________ ___________________________ ______________________________ ______________________ _____________________
Class 2-A-1 $176,182,000 Floating (3) $ 100,000 $1,000
____________________________ ___________________________ ______________________________ ______________________ _____________________
Class 2-A-2 $176,182,000 (4) Floating (5) $ 100,000 (6) $1,000 (6)
____________________________ ___________________________ ______________________________ ______________________ _____________________
Class PO $819,861 (7) N/A $ 100,000 $1,000
____________________________ ___________________________ ______________________________ ______________________ _____________________
Class A-R $100.00 5.75% $ 100 N/A
____________________________ ___________________________ ______________________________ ______________________ _____________________
Class B-1 $9,511,000 (8) $ 100,000 $1,000
____________________________ ___________________________ ______________________________ ______________________ _____________________
Class B-1IO $9,511,000 (4) 0.3937% $ 100,000 (6) $1,000 (6)
____________________________ ___________________________ ______________________________ ______________________ _____________________
Class B-2 $4,207,000 (9) $ 100,000 $1,000
____________________________ ___________________________ ______________________________ ______________________ _____________________
Class B-2IO $4,207,000 (4) 0.1437% $ 100,000 (6) $1,000 (6)
____________________________ ___________________________ ______________________________ ______________________ _____________________
Class B-3 $3,110,000 (10) $ 100,000 $1,000
____________________________ ___________________________ ______________________________ ______________________ _____________________
Class B-4 $2,012,000 (10) $ 100,000 $1,000
____________________________ ___________________________ ______________________________ ______________________ _____________________
Class B-5 $1,646,000 (10) $ 100,000 $1,000
____________________________ ___________________________ ______________________________ ______________________ _____________________
Class B-6 $1,463,629 (10) $ 100,000 $1,000
============================ =========================== ============================== ====================== =====================
(1) The Class 1-A-1 Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the lesser of (i) LIBOR plus
0.45% and (ii) 5.75%. The Pass-Through Rate for the Class 1-A-1
Certificates during the initial Interest Accrual Period is 5.77% per
annum.
(2) The Class 1-A-2 Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to 46.38333317% minus (LIBOR
multiplied by 7.66666636), subject to a maximum of 46.38333317% and a
minimum of 0%. The Pass Through Rate for the Class 1-A-2 Certificates
during the initial Interest Accrual Period is 5.5967% per annum.
(3) The Class 2-A-1 Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the lesser of (i) LIBOR plus
0.31% and (ii) 7.00%. The Pass-Through Rate for the Class 2-A-1
Certificates during the initial Interest Accrual Period is 5.63% per
annum.
5
(4) The Class 2-A-2, Class B-1IO and Class B-2IO Certificates will be Notional
Amount Certificates, will have no Class Certificate Balances and will bear
interest on their respective Notional Amounts.
(5) The Class 2-A-2 Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to 6.69% minus LIBOR, subject to
a maximum of 7.00% and a minimum of 0%. The Pass Through Rate for the
Class 2-A-2 Certificates during the initial Interest Accrual Period is
1.37% 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 for the Class B-1 Certificates for the Interest
Accrual Period related to each Distribution Date will be a per annum rate
equal to the Weighted Average Rate for that Interest Accrual Period minus
0.3937%. The Pass-Through Rate for the Class B-1 Certificates for the
first Interest Accrual Period is 5.9967% per annum.
(9) The Pass-Through Rate for the Class B-2 Certificates for the Interest
Accrual Period related to each Distribution Date will be a per annum rate
equal to the Weighted Average Rate for that Interest Accrual Period minus
0.1437%. The Pass-Through Rate for the Class B-1 Certificates for the
first Interest Accrual Period is 6.2467% per annum.
(10) The Pass-Through Rate for the Class of Subordinated Certificates for the
Interest Accrual Period for any Distribution Date will be a per annum rate
equal to the Weighted Average Rate. The Pass-Through Rate for this Class
of Subordinated Certificates for the first Interest Accrual Period is
6.3904% per annum.
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 same Lower Tier Interests in the same manner as such amounts are allocated
to the Master REMIC Classes referenced under the column titled "Allocation of
Principal."
6
Set forth below are designations of Classes of Certificates to the categories
used herein:
Accretion Directed Certificates........ None.
Accrual Certificates................... None.
Book-Entry Certificates................ All Classes of Certificates other
than the Physical Certificates.
COFI Certificates...................... None.
Component Certificates................. Class 2-A-2 Certificates.
Components............................. Class 2-A-2-IO, Class 2-A-2-P1 and
Class 2-A-2-P2 Components.
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.
Group 1 Senior Certificates............ Class 1-A-1, Class 1-A-2, Class
1-A-3, Class 1-A-4 and Class A-R
Certificates.
Group 1 Certificates................... Group 1 Senior Certificates and the
portions of the Subordinated
Certificates related to Collateral
Allocation Group 1.
Group 2 Senior Certificates............ Class 2-A-1 and Class 2-A-2
Certificates.
Group 2 Certificates................... Group 2 Senior Certificates and the
portions of the Subordinated
Certificates related to Collateral
Allocation Group 2.
LIBOR Certificates..................... Class 1-A-1, Class 1-A-2, Class
2-A-1 and Class 2-A-2 Certificates.
Non-Delay Certificates................. LIBOR Certificates.
Notional Amount Certificates........... Class 2-A-2, Class B-1IO and Class
B-2IO Certificates.
Notional Amount Components............. Class 2-A-2-IO Component.
Offered Certificates................... All Classes of Certificates other
than the Private
7
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........................ S&P and Fitch.
Regular Certificates................... All Classes of Certificates other
than the Class A-R Certificates.
Residual Certificate................... Class A-R Certificates.
Retained Certificates.................. None.
Senior Certificates.................... Class 1-A-1, Class 1-A-2, Class
1-A-3, Class 1-A-4, Class 2-A-1, Class
2-A-2, Class PO and Class A-R
Certificates.
Senior Certificate Group............... The Group 1 Senior Certificates or
the Group 2 Senior Certificates.
Subordinated Certificates.............. Class B-1, Class B-1IO, Class B-2,
Class B-2IO, Class B-3, Class B-4,
Class B-5 and Class B-6 Certificates.
Targeted Principal Classes............. None.
Targeted Principal Component........... None.
With respect to any of the foregoing designations as to which the
corresponding reference is "None," all defined terms and provisions in this
Agreement relating solely to such designations shall be of no force or effect,
and any calculations in this Agreement incorporating references to such
designations shall be interpreted without reference to such designations and
amounts. Defined terms and provisions in this Agreement relating to statistical
rating agencies not designated above as Rating Agencies shall be of no force or
effect.
8
ARTICLE ONE
DEFINITIONS
Section 1.01 Definitions.
Unless the context requires a different meaning, capitalized terms are
used in this Agreement as defined below.
Accretion Directed Certificates: As specified in the Preliminary
Statement.
Accretion Direction Rule: Not applicable.
Accrual Amount: Not applicable.
Accrual Certificates: As specified in the Preliminary Statement.
Accrual Termination Date: Not applicable.
Additional Designated Information: As defined in Section 11.02.
Adjusted Mortgage Rate: As to each Mortgage Loan and at any time, the
per annum rate equal to the Mortgage Rate less the Servicing Fee Rate.
Adjusted Net Mortgage Rate: As to each Mortgage Loan and any Distribution
Date, the per annum rate equal to the Mortgage Rate of that Mortgage Loan (as of
the Due Date in the month preceding the month in which such Distribution Date
occurs) less the Expense Fee Rate for that Mortgage Loan.
Adjustment Date: Not applicable.
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.
9
Allocable Share: As to any Distribution Date and the Applicable Fraction
of any Mortgage Loan related to Collateral Allocation Group PO and with respect
to the Class PO Certificates, zero. As to any Distribution Date and the related
Applicable Fraction of any Mortgage Loan related to each Collateral Loan Group
(other than Collateral Allocation Group PO) and with respect to any related
Class of Certificates, the ratio that the amount calculated with respect to such
Distribution Date (A) with respect to the related Senior Certificates, pursuant
to clause (i) of the definition of Class Optimal Interest Distribution Amount
(without giving effect to any reduction of such amount pursuant to Section
4.02(d)) and (B) with respect to the Subordinated Certificates, pursuant to the
definition of Assumed Interest Amount or after a Senior Termination Date,
pursuant to clause (i) of the definition of Class Optimal Interest Distribution
Amount (without giving effect to any reduction of such amount pursuant to
Section 4.02(d)) bears to the amount calculated with respect to such
Distribution Date for each Class of Certificates pursuant to clause (i) of the
definition of Class Optimal Interest Distribution Amount (without giving effect
to any reduction of such amount pursuant to Section 4.02(d)) or the definition
of Assumed Interest Amount, as applicable.
Amount Available for Senior Principal: As to any Distribution Date and any
Collateral Allocation Group, the related Available Funds for such Distribution
Date, reduced by the aggregate amount distributable (or allocable to the Accrual
Amount, if applicable) on such Distribution Date in respect of interest on the
related Senior Certificates pursuant to Section 4.02(a)(1)(iii), Section
4.02(a)(2)(iii) or Section 4.02(a)(3).
Amount Held for Future Distribution: As to any Distribution Date and
Collateral Allocation Group, the aggregate amount held in the Certificate
Account at the close of business on the related Determination Date on account of
the related Applicable Fraction 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).
Applicable Fraction: With respect to any Mortgage Loan and a Collateral
Allocation Group, the percentage for such Mortgage Loan and Collateral
Allocation Group set forth on the Mortgage Loan Schedule and calculated as
follows:
Mortgage Loan in the Collateral Allocation Collateral Allocation Collateral Allocation
following subpools: Group PO Group 1 Group 2
----------------------------- ----------------------------- ----------------------------- -----------------------------
Subpool A-1.................. 5.75% - Adjusted Net Mortgage Adjusted Net Mortgage
Rate of the Pool A Loan Rate of the Pool A Loan 0.00%
----------------------------- -----------------------------
5.75% 5.75%
10
7.00% - Adjusted Net 100% - (7.00% - Adjusted
Subpool A-2.................. 0.00% Mortgage Rate of the Pool Net Mortgage Rate of the
A Loan Pool A Loan
----------------------------- -----------------------------
1.25% 1.25%)
Subpool B-1.................. 5.75% - Adjusted Net Mortgage Adjusted Net Mortgage
Rate of the Pool B Loan Rate of the Pool B Loan 0.00%
----------------------------- -----------------------------
5.75% 5.75%
Subpool B-2.................. 0.00% 7.00% - Adjusted Net 100% - (7.00% - Adjusted
Mortgage Rate of the Pool Net Mortgage Rate of the
B Loan Pool B Loan
----------------------------- -----------------------------
1.25% 1.25%)
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.
Assumed Balance: For a Distribution Date and Collateral Allocation Group
(other than Collateral Allocation Group PO), is equal to the Subordinated
Percentage for that Distribution Date and Collateral Allocation Group of the
related Applicable Fraction of the aggregate Stated Principal Balance of each
Mortgage Loan as of the Due Date occurring in the month prior to the month of
that Distribution Date (after giving effect to Principal Prepayments received in
the Prepayment Period related to such Due Date).
Assumed Interest Amount: With respect to any Distribution Date and each
Class of Subordinated Certificates, other than any Notional Amount Certificates,
one month's interest accrued during the related Interest Accrual Period at the
Pass-Through Rate for such Class on the applicable Assumed Balance immediately
prior to that Distribution Date.
Available Funds: As to any Distribution Date and the Mortgage Loans in a
Collateral Allocation Group, the sum of the related Applicable Fraction of each
of the following (a) the amounts held in the Certificate Account at the close of
business on the related Determination Date, including any Subsequent Recoveries,
net of the related Amount Held for Future Distribution, net of Prepayment
Charges and net of amounts permitted to be withdrawn from the Certificate
Account pursuant to clauses (i) - (viii), inclusive, of Section 3.09(a) and
amounts permitted to be withdrawn from the Distribution Account pursuant to
clauses (i) - (ii), inclusive, of Section 3.09(b), in each case relating to such
Collateral Allocation Group, (b) the amount of the related Advance, (c) in
connection with Defective Mortgage Loans in such Collateral Allocation Group, as
applicable, the aggregate of the Purchase Prices and Substitution Adjustment
Amounts deposited on the related Distribution Account Deposit Date, and (d) any
amount deposited on the related Distribution Account Deposit Date pursuant to
Section 3.10, in each case relating to such Collateral Allocation Group. The
Holders of the Class 2-A-2 Certificates will be entitled to all Prepayment
Charges received on the Mortgage Loans and such amounts will not be available
for distribution to the Holders of any other Class of Certificates.
11
Bankruptcy Code: The United States Bankruptcy Reform Act of 1978, as
amended.
Bankruptcy Coverage Termination Date: The point in time at which the
Bankruptcy Loss Coverage Amount is reduced to zero.
Bankruptcy Loss: With respect to any Mortgage Loan, a Deficient Valuation
or Debt Service Reduction; provided, however, that a Bankruptcy Loss shall not
be deemed a Bankruptcy Loss under this Agreement so long as the Servicer has
notified the Trustee in writing that the Servicer is diligently pursuing any
remedies that may exist in connection with the related Mortgage Loan and either
(A) the related Mortgage Loan is not in default with regard to payments due
under the Mortgage Loan or (B) delinquent payments of principal and interest
under the related Mortgage Loan and any related escrow payments in respect of
such Mortgage Loan are being advanced on a current basis by the Servicer, in
either case without giving effect to any Debt Service Reduction or Deficient
Valuation.
Bankruptcy Loss Coverage Amount: As of any date of determination, the
Bankruptcy Loss Coverage Amount shall equal the Initial Bankruptcy Loss Coverage
Amount as reduced by (i) the aggregate amount of Bankruptcy Losses allocated to
the Certificates since the Cut-off Date and (ii) any permissible reductions in
the Bankruptcy Loss Coverage Amount as evidenced by a letter of each Rating
Agency to the Trustee to the effect that any such reduction will not result in a
downgrading, qualification or withdrawal of the then current ratings assigned to
the Classes of Certificates rated by it.
Blanket Mortgage: The mortgage or mortgages encumbering a Cooperative
Property.
Book-Entry Certificates: As specified in the Preliminary Statement.
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii) a day
on which banking institutions in the City of New York, New York, the State of
California or the city in which the Corporate Trust Office of the Trustee is
located are authorized or obligated by law or executive order to be closed.
Calculation Rate: For each Distribution Date, the product of (i) 10 and
(ii) the weighted average pass-through rate of the outstanding Class A and Class
B Interests, treating each of the Class A Interests as capped at zero.
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-A3, Mortgage
Pass-Through Certificates, Series 2007-C."
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
12
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: The Group 1 Certificates or the Group 2
Certificates, as 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.
Certificate Registrar: Deutsche Bank National Trust Company and its
successors and, if a successor trustee 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 or Component, on the related Class Certificate Balance,
Notional Amount or Component 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 related
Applicable Fraction of each Realized Loss, other than any Excess Loss, on a
Discount Mortgage Loan to be allocated to the Class PO
13
Certificates on such Distribution Date on or prior to the Senior Credit Support
Depletion Date or previously allocated to the Class PO Certificates and not yet
paid to the Holders of the Class PO Certificates.
Class Subordination Percentage: With respect to any Distribution Date and
each Class of Subordinated Certificates, the fraction (expressed as a
percentage) the numerator of which is the Class Certificate Balance of such
Class of Subordinated Certificates immediately prior to such Distribution Date
and the denominator of which is the aggregate Class Certificate Balance of all
Classes of Certificates immediately prior to such Distribution Date.
Class Unpaid Interest Amounts: As to any Distribution Date and Class of
interest-bearing Certificates, the amount by which the aggregate Class Interest
Shortfalls for such Class on prior Distribution Dates exceeds the amount
distributed on such Class on prior Distribution Dates pursuant to clause (ii) of
the definition of Class Optimal Interest Distribution Amount.
Closing Date: February 27, 2007.
CMT Index: Not applicable.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
COFI: Not applicable.
COFI Certificates: Not applicable.
Collateral Allocation Group: Collateral Allocation Group PO,
Collateral Allocation Group 1 or Collateral Allocation Group 2, as applicable.
Collateral Allocation Group 1: For any Distribution Date, all of the
Mortgage Loans in Subpool ▇-▇, ▇▇▇▇▇▇▇ ▇-▇, ▇▇▇▇▇▇▇ ▇-▇ and Subpool B-2 or
portions thereof that have been stripped to a rate of 5.75%.
Collateral Allocation Group 2: For any Distribution Date, all of the
Mortgage Loans in Subpool A-2 and Subpool B-2 or portions thereof that have been
stripped to a rate of 7.00%.
Collateral Allocation Group PO: For any Distribution Date, all of the
Discount Mortgage Loans in Subpool A-1 and Subpool B-1 or portions thereof that
have been stripped to a rate of 0.00%.
Commission: The United States Securities and Exchange Commission.
Compensating Interest: For any Distribution Date, 0.125% multiplied by
one-twelfth multiplied by the aggregate Stated Principal Balance of the Mortgage
Loans as of the first day of the prior month.
Components: 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.
14
Component Notional Amount: For the Class 2-A-2-IO Component for the
Interest Accrual Period related to each Distribution Date, the Class Certificate
Balance of the Class 2-A-1 Certificates immediately prior to such Distribution
Date.
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-IN0703 (IndyMac MBS, Inc.,
Residential Asset Securitization Trust 2007-A3, Mortgage Pass-Through
Certificates, Series 2007-C), 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 transfer, exchange or final payment thereof is
located at DB Services Tennessee, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇-▇▇▇▇, Attention: Transfer Unit.
Cut-off Date: February 1, 2007.
Cut-off Date Pool Principal Balance: $371,388,138.32.
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.
15
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.
Denomination: For each Certificate, the amount on the face of the
Certificate as the "Initial Certificate Balance of this Certificate" or the
"Initial Notional Amount of this Certificate" or, if neither of the foregoing,
the Percentage Interest appearing on the face of the Certificate.
Depositor: IndyMac MBS, Inc., a Delaware corporation, or its successor
in interest.
Depository: The initial Depository shall be The Depository Trust
Company, the nominee of which is CEDE & Co., as the registered Holder of the
Book-Entry Certificates. The Depository shall at all times be a "clearing
corporation" as defined in Section 8-102(a)(5) of the UCC.
Depository Participant: A broker, dealer, bank, or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: As to any Distribution Date, the 18th day of each
month or if that day is not a Business Day the next Business Day, except that if
the next Business Day is less than two Business Days before the related
Distribution Date, then the Determination Date shall be the Business Day
preceding the 18th day of the month.
Discount Mortgage Loan: Any Mortgage Loan with an Adjusted Net Mortgage
Rate that is less than 5.75%.
16
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-A3, Mortgage Pass-Through Certificates, Series 2007-C." 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 March 2007.
Due Date: For any Mortgage Loan and Distribution Date, the first day of
the month in which such Distribution Date occurs.
Due Period: For any Distribution Date, the period commencing on the second
day of the month preceding the month in which the Distribution Date occurs and
ending on the first day of the month in which the Distribution Date occurs.
▇▇▇▇▇: The Commission's Electronic Data Gathering, Analysis and
Retrieval system.
Eligible Account: Any of
(i) an account or accounts maintained with a federal or state chartered
depository institution or trust company the short-term unsecured debt
obligations of which (or, in the case of a depository institution or trust
company that is the principal subsidiary of a holding company, the debt
obligations of such holding company) have the highest short-term ratings of
Moody's or Fitch and one of 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.
17
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 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-C, 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.
18
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, $7,427,763, 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, including a loss
by reason of the denial of coverage under any related Primary Insurance Policy
because of such fraud, dishonesty or misrepresentation.
Gross Margin: Not applicable.
Group 1 Certificates: As specified in the Preliminary Statement.
Group 1 Senior Certificates: As specified in the Preliminary Statement.
Group 2 Certificates: As specified in the Preliminary Statement.
Group 2 Senior Certificates: As specified in the Preliminary Statement.
Index: Not applicable.
Indirect Participant: A broker, dealer, bank, or other financial
institution or other Person that clears through or maintains a custodial
relationship with a Depository Participant.
Initial Bankruptcy Loss Coverage Amount: $128,013.
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.
19
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 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 and
any other material transaction party, as identified in Exhibit T, as updated
pursuant to Section 11.04.
Latest Possible Maturity Date: The Distribution Date following the third
anniversary of the later of (i) the scheduled maturity date of the Mortgage Loan
having the latest scheduled maturity date as of the Cut-off Date, and (ii) the
latest possible maturity of any Substitute Mortgage Loan that may be substituted
for any Mortgage Loan pursuant to this Agreement.
Lender PMI Loans: Mortgage Loans with respect to which the lender rather
than the borrower acquired the primary mortgage guaranty insurance and charged
the related borrower an interest premium.
LIBOR: The London interbank offered rate for one month United States
dollar deposits calculated in the manner described in Section 4.09.
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
20
through trustee's sale, foreclosure sale, or otherwise or amounts received in
connection with any condemnation or partial release of a Mortgaged Property, and
any other proceeds received in connection with an REO Property, less the sum of
related unreimbursed Servicing Fees, Servicing Advances, and Advances.
Loan-to-Value Ratio: For any Mortgage Loan and as of any date of
determination, is the fraction whose numerator is the original principal balance
of the related Mortgage Loan at that date of determination and whose denominator
is the Appraised Value of the related Mortgaged Property.
London Business Day: Any day on which dealings in deposits of United
States dollars are transacted in the London interbank market.
Lost Mortgage Note: Any Mortgage Note the original of which was
permanently lost or destroyed and has not been replaced.
Maintenance: For any Cooperative Unit, the rent paid by the Mortgagor to
the Cooperative Corporation pursuant to the Proprietary Lease.
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).
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.
21
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;
(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;
22
(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.
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).
Mortgage Pool: Mortgage Pool A or Mortgage Pool B.
Mortgage Pool A: Pool A Loans.
Mortgage Pool B: Pool B Loans.
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 and
Collateral Allocation Group, the amount by which the aggregate of Prepayment
Interest Shortfalls for such Collateral Allocation Group exceeds an amount equal
to the sum of (a) the Compensating Interest allocable to such Collateral
Allocation Group for such Distribution Date and (b) the excess, if any, of the
Compensating Interest allocable to each other Collateral Allocation Group for
such Distribution Date over Prepayment Interest Shortfalls for such other
Collateral Allocation Group and Distribution Date.
Non-Delay Certificates: As specified in the Preliminary Statement.
Non-Discount Mortgage Loan: Each Mortgage Loan with an Adjusted Net
Mortgage Rate that is greater than or equal to 5.75%.
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 2-A-2 Certificates and any
Distribution Date the Component Notional Amount of the Class 2-A-2IO Component
immediately prior to that Distribution Date. With respect to the Class B-1IO
Certificates and any Distribution Date, the Class Certificate Balance of the
Class B-1 Certificates immediately prior to that Distribution Date. With respect
to the Class B-2IO Certificates and any Distribution Date, the Class Certificate
Balance of the Class B-2 Certificates immediately prior to that Distribution
Date.
23
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.
Original Applicable Credit Support Percentage: With respect to each of the
following Classes of Subordinated Certificates, the corresponding percentage
described below:
Class B-1...................... 5.99%
Class B-2...................... 3.40%
Class B-3...................... 2.25%
Class B-4...................... 1.40%
Class B-5...................... 0.85%
Class B-6...................... 0.40%
Original Mortgage Loan: The Mortgage Loan refinanced in connection
with the origination of a Refinance Loan.
Original Subordinated Principal Balance: On or prior to a Senior
Termination Date, the sum of the Subordinated Percentage for each Collateral
Allocation Group, other than Collateral Allocation Group PO, the related
Applicable Fraction of the aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-off Date; or if such date is after the Senior Termination
Date, the aggregate Class Certificate Balance of the Subordinated Certificates
as of the Closing Date.
OTS: The Office of Thrift Supervision.
Outside Reference Date: Not applicable.
Outstanding: For the Certificates as of any date of determination, all
Certificates theretofore executed and authenticated under this Agreement
except:
(i) Certificates theretofore canceled by the Trustee or delivered
to the Trustee for cancellation; and
(ii) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered by the Trustee
pursuant to this Agreement.
24
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan with a
Stated Principal Balance greater than zero that was not the subject of a
Principal Prepayment in Full before the Due Date or during the related
Prepayment Period and that did not become a Liquidated Mortgage Loan before the
Due Date.
Overcollateralized Group: As defined in Section 4.03.
Ownership Interest: As to any Residual Certificate, any ownership interest
in the Certificate including any interest in the Certificate as its Holder and
any other interest therein, whether direct or indirect, legal or beneficial.
Pass-Through Rate: For each Class of Certificates, the per annum rate set
forth or calculated in the manner described in the Preliminary Statement.
Percentage Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class, the
percentage interest being set forth on its face or equal to the percentage
obtained by dividing the Denomination of the Certificate by the aggregate of the
Denominations of all Certificates of the same Class.
Performance Certification: As defined in Section 11.05.
Permitted Investments: At any time, any of the following:
(i) obligations of the United States or any agency thereof backed by the
full faith and credit of the United States;
(ii) general obligations of or obligations guaranteed by any state of the
United States or the District of Columbia receiving the highest long-term debt
rating of each Rating Agency, or any lower rating that will not result in the
downgrading, qualification or withdrawal of the ratings then assigned to the
Certificates by the Rating Agencies, as evidenced by a signed writing delivered
by each Rating Agency;
(iii) commercial or finance company paper that is then receiving the
highest commercial or finance company paper rating of each Rating Agency, or any
lower rating that will not result in the downgrading, qualification or
withdrawal of the ratings then assigned to the Certificates by the Rating
Agencies , as evidenced by a signed writing delivered by each Rating Agency;
(iv) certificates of deposit, demand or time deposits, or bankers'
acceptances issued by any depository institution or trust company incorporated
under the laws of the United States or of any state thereof and subject to
supervision and examination by federal or state banking authorities, provided
that the commercial paper or long-term unsecured debt obligations of the
depository institution or trust company (or in the case of the principal
depository institution in a holding company system, the commercial paper or
long-term unsecured debt obligations of the holding company, but only if ▇▇▇▇▇'▇
is not a Rating Agency) are then rated one of the two highest long-term and the
highest short-term ratings of each Rating Agency for the securities, or any
lower rating that will not result in the downgrading, qualification or
withdrawal of the ratings then assigned to the Certificates by the Rating
Agencies, as evidenced by a signed writing delivered by each Rating Agency;
(v) demand or time deposits or certificates of deposit issued by any bank
or trust company or savings institution to the extent that the deposits are
fully insured by the FDIC;
25
(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-N" by S&P) and restricted to obligations
issued or guaranteed by the United States of America or entities whose
obligations are backed by the full faith and credit of the United States of
America and repurchase agreements collateralized by such obligations; and
(x) any other investments bearing interest or sold at a discount
acceptable to each Rating Agency that will not result in the downgrading,
qualification or withdrawal of the ratings then assigned to the Certificates by
the Rating Agencies, as evidenced by a signed writing delivered by each Rating
Agency.
No Permitted Investment may (i) evidence the right to receive interest
only payments with respect to the obligations underlying the instrument, (ii) be
sold or disposed of before its maturity or (iii) be any obligation of the Seller
or any of its Affiliates. Any Permitted Investment shall be relatively risk free
and no options or voting rights shall be exercised with respect to any Permitted
Investment. Any Permitted Investment shall be sold or disposed of in accordance
with Financial Accounting Standard 140, paragraph 35c(6) in effect as of the
Closing Date.
Permitted Transferee: Any person other than
(i) the United States, any State or political subdivision thereof, or any
agency or instrumentality of any of the foregoing,
(ii) a foreign government, International Organization, or any agency or
instrumentality of either of the foregoing,
(iii) an organization (except certain farmers' cooperatives described in
section 521 of the Code) that is exempt from tax imposed by Chapter 1 of the
Code (including the tax imposed by section 511 of the Code on unrelated business
taxable income) on any excess inclusions (as defined in section 860E(c)(1) of
the Code) with respect to any Residual Certificate,
26
(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.
Pool A Loans: The Mortgage Loans with soft Prepayment Charges or no
Prepayment Charge as listed on the Mortgage Loan Schedule as being in Mortgage
Pool A.
Pool B Loans: The Mortgage Loans with hard Prepayment Charges or no
Prepayment Charge listed on the Mortgage Loan Schedule as being in Mortgage Pool
B.
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.
27
Prepayment Period: As to any Distribution Date and related Due Date, the
period from and including the 16th day of the month immediately prior to the
month of such Distribution Date (or, in the case of the first Distribution Date,
from the Cut-off Date) and to and including the 15th day of the month of such
Distribution Date.
Primary Insurance Policy: Each policy of primary mortgage guaranty
insurance or any replacement policy therefor with respect to any Mortgage Loan.
Principal Amount: As to any Distribution Date and any Collateral
Allocation Group, the sum of (a) the related Applicable Fraction of all monthly
payments of principal due on each Mortgage Loan in the that Collateral
Allocation Group on the related Due Date, (b) the related Applicable Fraction of
the principal portion of the Purchase Price of each Mortgage Loan in the that
Collateral Allocation Group that was repurchased by the Seller pursuant to this
Agreement as of such Distribution Date, excluding any Mortgage Loan in the that
Collateral Allocation Group that was repurchased due to a modification of the
Mortgage Loan in lieu of refinancing, (c) the related Applicable Fraction of the
Substitution Adjustment Amount in connection with any Deleted Mortgage Loan in
the that Collateral Allocation Group received with respect to the Distribution
Date, (d) the related Applicable Fraction of any Insurance Proceeds or
Liquidation Proceeds allocable to recoveries of principal of Mortgage Loans in
the that Collateral Allocation Group that are not yet Liquidated Mortgage Loans
received during the calendar month preceding the month of such Distribution
Date, (e) the related Applicable Fraction with respect to each Mortgage Loan in
the that Collateral Allocation Group that became a Liquidated Mortgage Loan
during the calendar month preceding the month of such Distribution Date, the
amount of Liquidation Proceeds allocable to principal received with respect to
such Mortgage Loan, (f) the related Applicable Fraction of all partial and full
Principal Prepayments on the Mortgage Loans in the that Collateral Allocation
Group received during the related Prepayment Period and the principal portion of
the Purchase Price of any Mortgage Loan in the that Collateral Allocation Group
repurchased by the Seller pursuant to Section 3.12 and (g) the related
Applicable Fraction of any Subsequent Recoveries with respect to the Mortgage
Loans in the that Collateral Allocation Group received during the calendar month
preceding the month of such Distribution Date.
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 and Collateral Allocation Group
1, the sum of (i) the product of (A) 66.5540158563563% of the Scheduled
Principal Distribution Amount, (B) the Senior Percentage, (C) the Shift
Percentage and (D) the Priority Percentage and (ii) the product of (A)
66.5540158563563% of the Unscheduled Principal Distribution Amount, (B) the
Senior Prepayment Percentage, (C) the Shift Percentage and (D) the Priority
Percentage.
Priority Percentage: For any Distribution Date and Collateral Allocation
Group 1, the percentage equivalent of a fraction, the numerator of which is the
Class Certificate Balance of the Class 1-
28
A-4 Certificates immediately prior to such Distribution Date, and the
denominator of which is the aggregate Class Certificate Balance of the Class
1-A-3 and Class 1-A-4 Certificates immediately prior to such 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 February 27, 2007,
relating to the Offered Certificates, and any supplement thereto.
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
29
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 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 (or in
the case of the first Distribution Date, the Closing 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.
30
Relief Act Reductions: With respect to any Distribution Date and any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended calendar month as a result of
the application of the Relief Act or any similar state or local laws, the
amount, if any, by which (i) interest collectible on such Mortgage Loan for the
most recently ended calendar month is less than (ii) interest accrued thereon
for such month pursuant to the Mortgage Note.
REMIC: A "real estate mortgage investment conduit" within the meaning of
section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at sections 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
regulations promulgated thereunder, as the foregoing may be in effect from time
to time as well as provisions of applicable state laws.
REO Property: A Mortgaged Property acquired by the Trust Fund through
foreclosure or deed-in-lieu of foreclosure in connection with a defaulted
Mortgage Loan.
Reportable Event: Any event required to be reported on Form 8-K, and in
any event, the following:
(a) entry into a definitive agreement related to the Trust Fund, the
Certificates or the Mortgage Loans, or an amendment to a Transaction Document,
even if the Depositor is not a party to such agreement (e.g., a servicing
agreement with a servicer contemplated by Item 1108(a)(3) of Regulation AB);
(b) termination of a Transaction Document (other than by expiration of the
agreement on its stated termination date or as a result of all parties
completing their obligations under such agreement), even if the Depositor is not
a party to such agreement (e.g., a servicing agreement with a servicer
contemplated by Item 1108(a)(3) of Regulation AB);
(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
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Item 1114(a)(1) through (3) of Regulation AB or Item 1115 of Regulation AB with
respect to one or more Classes of the Certificates has been materially amended
or modified; and
(h) with respect to the Trustee, the Servicer and the Depositor only, a
required distribution to Holders of the Certificates is not made as of the
required Distribution Date under this Agreement.
Reporting Subcontractor: With respect to the Servicer or the Trustee, any
Subcontractor determined by such Person pursuant to Section 11.08(b) to be
"participating in the servicing function" within the meaning of Item 1122 of
Regulation AB. References to a Reporting Subcontractor shall refer only to the
Subcontractor of such Person and shall not refer to Subcontractors generally.
Request for Release: The Request for Release submitted by the Servicer to
the Trustee, substantially in the form of Exhibits M and N, as appropriate.
Required Insurance Policy: For any Mortgage Loan, any insurance policy
that is required to be maintained from time to time under this Agreement.
Residual Certificates: As specified in the Preliminary Statement.
Responsible Officer: When used with respect to the Trustee, any Managing
Director, any Director, Vice President, any Assistant Vice President, any
Associate, any Assistant Secretary, any Trust Officer, or any other officer of
the Trustee customarily performing functions similar to those performed by any
of the above designated officers who at such time shall be officers to whom,
with respect to a particular matter, the matter is referred because of the
officer's knowledge of and familiarity with the particular subject and who has
direct responsibility for the administration of this Agreement.
Restricted Classes: As defined in Section 4.02(e).
SAIF: The Savings Association Insurance Fund, or any successor thereto.
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification: As defined in Section 11.05.
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 related Senior Percentage of all amounts described in
clauses (a) through (d) of the definition of Principal Amount for Collateral
Allocation Group 1 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
32
Liquidated Mortgage Loan, the Scheduled Principal Distribution Amount will be
reduced on the related Distribution Date by the related Applicable Fraction 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.
Senior Percentage: As to any Collateral Allocation Group (other than
Collateral Allocation Group PO) and 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 Notional Amount Certificates) related
to that Collateral Allocation Group immediately before the Distribution Date and
the denominator of which is the sum of the Applicable Fraction of the Stated
Principal Balance of each Mortgage Loan as of the Due Date occurring in the
month prior to the month of that Distribution Date (after giving effect to
Principal Prepayments received in the Prepayment Period related to such prior
Due Date); provided, however, that on any Distribution Date after a Senior
Termination Date, the Senior Percentage for the Senior Certificates of the
remaining Senior Certificate Group is the percentage equivalent of a fraction,
the numerator of which is the aggregate Class Certificate Balance of the Senior
Certificates (other than the Class PO Certificates and the Notional Amount
Certificates) of such remaining Senior Certificate Group immediately prior to
such Distribution Date and the denominator of which is the aggregate Class
Certificate Balance of all Classes of Certificates (other than the Class PO
Certificates), immediately prior to such Distribution Date.
Senior Prepayment Percentage: As to any Collateral Allocation Group (other
than Collateral Allocation Group PO) and 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 related
Senior Percentage plus 70% of the related Subordinated Percentage for such
Distribution Date; for any Distribution Date in the second year thereafter, the
related Senior Percentage plus 60% of the related Subordinated Percentage for
such Distribution Date; for any Distribution Date in the third year thereafter,
the related Senior Percentage plus 40% of the related Subordinated Percentage
for such Distribution Date; for any Distribution Date in the fourth year
thereafter, the related Senior Percentage plus 20% of the related Subordinated
Percentage for such Distribution Date; and for any Distribution Date thereafter,
the related Senior Percentage for such Distribution Date (unless on any
Distribution Date the Senior Percentage of a Senior Certificate Group exceeds
the initial Senior Percentage for such Certificate Group, in which case the
Senior Prepayment Percentage for each Senior Certificate Group and 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 with respect to both Loan Groups.
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Senior Principal Distribution Amount: As to any Distribution Date and
Collateral Allocation Group (other than Collateral Allocation Group PO), the sum
of (i) the related Senior Percentage of all amounts described in clauses (a)
through (d) of the definition of Principal Amount for that Collateral Allocation
Group for that Distribution Date, (ii) with respect to any Mortgage Loan in that
Collateral Allocation Group that became a Liquidated Mortgage Loan during the
calendar month preceding the month of such Distribution Date, the lesser of (x)
the related Senior Percentage of the related Applicable Fraction of the Stated
Principal Balance of such Mortgage Loan and (y) either (A) if no Excess Losses
were sustained on the Liquidated Mortgage Loan during the preceding calendar
month, the related Senior Prepayment Percentage of the related Applicable
Fraction of the amount of the Liquidation Proceeds allocable to principal
received on the Mortgage Loan or (B) if an Excess Loss were sustained with
respect to such Liquidated Mortgage Loan during such preceding calendar month,
the Senior Percentage of the amount of the Liquidation Proceeds allocable to
principal received with respect to such Mortgage Loan, and (iii) the sum of (x)
the Senior Prepayment Percentage of the amounts described in clauses (f) and (g)
of the definition of Principal Amount for that Collateral Allocation Group for
that 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 for that
Collateral Allocation Group will be reduced on the related Distribution Date by
the Senior Percentage of the related Applicable Fraction of the applicable
principal portion of such Bankruptcy Loss; provided further, however, on any
Distribution Date after a Senior Termination Date, the Senior Principal
Distribution Amount for the remaining Senior Certificate Group will be
calculated pursuant to the above formula based on all the Mortgage Loans, as
opposed to the Mortgage Loans in the applicable Collateral Allocation Group. As
to any Distribution Date and Collateral Allocation Group PO, the Principal
Amount for Collateral Allocation Group PO.
Senior Step Down Conditions: With respect to a Collateral Allocation Group
(other than Collateral Allocation Group PO): (i) the related Applicable Fraction
of the Stated Principal Balance of each Mortgage Loan in that Collateral
Allocation Group delinquent 60 days or more (including Mortgage Loans in
foreclosure proceedings, REO Property and Mortgage Loans the mortgagors of which
are in bankruptcy) (averaged over the preceding six month period), as a
percentage of (a) if such date is on or prior to a Senior Termination Date, the
Subordinated Percentage for that Collateral Allocation Group of the related
Applicable Fraction of the Stated Principal Balance of each Mortgage Loan or (b)
if such date is after a Senior Termination Date, the aggregate Class Certificate
Balance of the Subordinated Certificates, does not equal or exceed 50%, and (ii)
cumulative Realized Losses on the related Applicable Fraction of each Mortgage
Loan for a Collateral Allocation Group 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, (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: For each Senior Certificate Group, the
Distribution Date on which the aggregate Class Certificate Balance of the
related Classes of Senior Certificates has been reduced to zero.
Servicer: IndyMac Bank, F.S.B., a federal savings bank, and its
successors and assigns, in its capacity as Servicer under this Agreement.
Servicer Advance Date: As to any Distribution Date, 12:30 P.M.
Pacific time on the Business Day preceding the Distribution Date.
34
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 as of the Due Date in the month preceding the month
of such Distribution Date (after giving effect to Principal Prepayments in the
Prepayment Period related to that prior Due Date), or, whenever a payment of
interest accompanies a Principal Prepayment in Full made by the Mortgagor,
interest at the Servicing Fee Rate on the Stated Principal Balance of the
Mortgage Loan for the period covered by the payment of interest, subject to
reduction as provided in Section 3.15.
Servicing Fee Rate: For each Mortgage Loan, 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.
Shift Percentage: For any Distribution Date occurring during the five
years beginning on the first Distribution Date, 0%. For any Distribution Date
occurring on or after the fifth anniversary of the first Distribution Date as
follows: for any Distribution Date in the first year thereafter, 30%; for any
Distribution Date in the second year thereafter, 40%; for any Distribution Date
in the third year thereafter, 60%; for any Distribution Date in the fourth year
thereafter, 80%; and for any Distribution Date thereafter, 100%.
Special Hazard Coverage Termination Date: The point in time at which the
Special Hazard Loss Coverage Amount is reduced to zero.
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
35
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, $3,713,881. With respect to any Distribution Date after the
first Distribution Date, the lesser of (a) the greatest of (i) 1% of the
aggregate of the principal balances of the Mortgage Loans, (ii) twice the
principal balance of the largest Mortgage Loan and (iii) the aggregate of the
principal balances of all Mortgage Loans secured by Mortgaged Properties located
in the single California postal zip code area having the highest aggregate
principal balance of any such zip code area and (b) the Special Hazard Loss
Coverage Amount as of the Closing Date less the amount, if any, of Special
Hazard Losses allocated to the Certificates since the Closing Date. All
principal balances for the purpose of this definition will be calculated as of
the first day of the calendar month preceding the month of such Distribution
Date after giving effect to Scheduled Payments on the Mortgage Loans then due,
whether or not paid.
Special Hazard Mortgage Loan: A Liquidated Mortgage Loan as to which a
Special Hazard Loss has occurred.
Startup Day: The Closing Date.
36
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 Collateral Allocation Group (other than
Collateral Allocation Group PO) and Distribution Date on or prior to a Senior
Termination Date, 100% minus the Senior Percentage for the Senior Certificate
Group relating to such Collateral Allocation Group for such Distribution Date.
As to any Distribution Date after a Senior Termination Date, 100% minus the
Senior Percentage for such Distribution Date.
Subordinated Prepayment Percentage: As to any Distribution Date and
Collateral Allocation Group (other than the Collateral Allocation Group PO),
100% minus the Senior Prepayment Percentage for such Distribution Date.
Subordinated Principal Distribution Amount: As to any Distribution Date
and Collateral Allocation Group (other than Collateral Allocation Group PO), the
sum of: (i) the related Subordinated Percentage of all amounts described in
subclauses (a) through (d) of clause (i) of the definition of Principal Amount
for that Collateral Allocation Group with respect to such Distribution Date,
(ii) with respect to any Mortgage Loan that became a Liquidated Mortgage Loan
during the calendar month preceding the month of such Distribution Date, the
amount of Liquidation Proceeds allocable to principal received with respect
thereto remaining after application thereof pursuant to clause (ii) of the
definition of Senior Principal Distribution Amount for that Collateral
Allocation Group, up to the Subordinated Percentage of the related Applicable
Fraction of the Stated Principal Balance of the Mortgage Loans, as of the Due
Date in the month preceding the month of that Distribution Date, (iii) the
Subordinated Prepayment Percentage of the amounts described in subclauses (f)
and (g) of clause of the definition of Principal Amount for that Collateral
Allocation Group for such Distribution Date, and (iv) the Subordinated
Prepayment Percentage of any Subsequent Recoveries described in clause (ii) of
the definition of Principal Amount and that Distribution Date, reduced by the
amount of any payments in respect of Class PO Deferred Amounts on the
Distribution Date; provided, however, that on any Distribution Date after the
Senior Termination Date, the Subordinated Principal Distribution Amount will not
be calculated by Collateral Allocation Group but will equal the amount
calculated pursuant to the applicable formula set forth above based on the
applicable Subordinated Percentage and Subordinated Prepayment Percentage for
the Subordinated Certificates for such Distribution Date with respect to all of
the Mortgage Loans as opposed to the Mortgage Loans only in the related
Collateral Allocation Group.
Subsequent Recoveries: As to any Distribution Date, with respect to a
Liquidated Mortgage Loan that resulted in a Realized Loss in a prior calendar
month, unexpected amounts received by the
37
Servicer (net of any related expenses permitted to be reimbursed pursuant to
Section 3.09) specifically related to such Liquidated Mortgage Loan.
Substitute Mortgage Loan: A Mortgage Loan substituted by the Seller for a
Deleted Mortgage Loan that must, on the date of substitution, as confirmed in a
Request for Release, substantially in the form of Exhibit M,
(i) have a Stated Principal Balance, after deduction of the principal
portion of the Scheduled Payment due in the month of substitution, not in excess
of, and not more than 10% less than, the Stated Principal Balance of the Deleted
Mortgage Loan (unless the amount of any shortfall is deposited by the Seller in
the Certificate Account and held for distribution to the Certificateholders on
the related Distribution Date);
(ii) have a Mortgage Rate no lower than and not more than 1% per annum
higher than the Deleted Mortgage Loan;
(iii) have a 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.
Suspension Notification: Notification to the Commission of the
suspension of the Trust Fund's obligation to file reports pursuant to Section
15(d) of the Exchange Act.
Targeted Balance: Not applicable.
Targeted Principal Classes: As specified in the Preliminary Statement.
Transaction Documents: This Agreement and any other document or
agreement entered into in connection with the Trust Fund, the Certificates or
the Mortgage Loans.
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
Transfer Payment Made: As defined in Section 4.03.
Transfer Payment Received: As defined in Section 4.03.
Trust Fund: The corpus of the trust created under this Agreement
consisting of
(i) the Mortgage Loans and all interest and principal received on them
after the Cut-off Date, other than amounts due on the Mortgage Loans by the
Cut-off Date;
38
(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; and
(v) all proceeds of the conversion, voluntary or involuntary, of any of
the foregoing.
Trustee: Deutsche Bank National Trust Company and its successors and, if a
successor trustee is appointed under this Agreement, the successor.
Trustee Fee: The fee payable to the Trustee on each Distribution Date for
its services as Trustee hereunder, in an amount equal to one-twelfth of the
Trustee Fee Rate multiplied by the aggregate Stated Principal Balance of the
Mortgage Loans as of the Due Date in the month preceding the month of such
Distribution Date (after giving effect to Principal Prepayments in the
Prepayment Period related to that prior Due Date).
Trustee Fee Rate: 0.0000% per annum.
The terms "United States," "State," and "International Organization" have
the meanings in section 7701 of the Code or successor provisions. A corporation
will not be treated as an instrumentality of the United States or of any State
or political subdivision thereof for these purposes if all of its activities are
subject to tax and, with the exception of the Federal Home Loan Mortgage
Corporation, a majority of its board of directors is not selected by such
government unit.
UCC: The Uniform Commercial Code for the State of New York.
Undercollateralized Group: As defined in Section 4.03.
Underwriter's Exemption: Prohibited Transaction Exemption 2002-41, 67
Fed. Reg. 54487 (2002) (or any successor thereto), or any substantially
similar administrative exemption granted by the U.S. Department of Labor.
United States Person or U.S. Person:
(i) A citizen or resident of the United States;
(ii) a corporation (or entity treated as a corporation for tax purposes)
created or organized in the United States or under the laws of the United States
or of any state thereof, including, for this purpose, the District of Columbia;
(iii) a partnership (or entity treated as a partnership for tax purposes)
organized in the United States or under the laws of the United States or of any
state thereof, including, for this purpose, the District of Columbia (unless
provided otherwise by future Treasury regulations);
(iv) an estate whose income is includible in gross income for United
States income tax purposes regardless of its source; or
39
(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 and
Collateral Allocation Group 1, the sum of the amounts described in clauses (e)
through (g) of the definition of Principal Amount for Collateral Allocation
Group 1 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.
Weighted Average Rate: For the Interest Accrual Period for each
Distribution Date a per annum rate equal to the sum of (i) 5.75% multiplied by
the excess of the sum of the related Applicable Fraction for Collateral
Allocation Group 1 of the aggregate Stated Principal Balance of each Mortgage
Loan included in Collateral Allocation Group 1 as of the Due Date in the month
preceding the month of that Distribution Date (after giving effect to Principal
Prepayments received in the Prepayment Period related to that Due Date) over the
aggregate Class Certificate Balance of the Group 1 Senior Certificates
immediately prior to that Distribution Date and (ii) 7.00% multiplied by the
excess of the sum of the related Applicable Fraction for Collateral Allocation
Group 2 of the aggregate Stated Principal Balance of each Mortgage Loan included
in Collateral Allocation Group 2 as of the Due Date in the month preceding the
month of that Distribution Date (after giving effect to Principal Prepayments
received in the Prepayment Period related to that Due Date) over the aggregate
Class Certificate Balance of the Group 2 Senior Certificates immediately prior
to that Distribution Date and divided by the aggregate Class Certificate Balance
of the Subordinated Certificates immediately prior to that Distribution Date.
Withdrawal Date: The 18th day of each month, or if such day is not a
Business Day, the next preceding Business Day.
Section 1.02 Rules of Construction.
Except as otherwise expressly provided in this Agreement or unless the
context clearly requires otherwise
(a) References to designated articles, sections, subsections, exhibits,
and other subdivisions of this Agreement, such as "Section 6.12 (a)," refer
to the designated article, section, subsection, exhibit, or other subdivision
of this Agreement as a whole and to all subdivisions of the designated
article, section, subsection, exhibit, or other subdivision. The words
"herein," "hereof," "hereto," "hereunder," and other words of similar import
refer to this Agreement as a whole and not to any particular article,
section, exhibit, or other subdivision of this Agreement.
40
(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.
(g) In the computation of a period of time from a specified date to a
later specified date or an open-ended period, the words "from" and
"beginning" mean "from and including," the word "after" means "from but
excluding," the words "to" and "until" mean "to but excluding," and the word
"through" means "to and including." Likewise, in setting deadlines or other
periods, "by" means "by." The words "preceding," "following," and words of
similar import, mean immediately preceding or following. References to a
month or a year refer to calendar months and calendar years.
(h) Any reference to the enforceability of any agreement against a
party means that it is enforceable, subject as to enforcement against the
party, to applicable bankruptcy, insolvency, reorganization, and other
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
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ARTICLE TWO
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans.
(a) The Seller, concurrently with the execution and delivery of this
Agreement, hereby transfers to the Depositor, without recourse, all the
interest of the Seller in each Mortgage Loan, including all interest and
principal received or receivable by the Seller on each Mortgage Loan after
the Cut-off Date and all interest and principal payments on each Mortgage
Loan received before the Cut-off Date for installments of interest and
principal due after the Cut-off Date but not including payments of principal
and interest due by the Cut-off Date. By the Closing Date, the Seller shall
deliver to the Depositor or, at the Depositor's direction, to the Trustee or
other designee of the Depositor, the Mortgage File for each Mortgage Loan
listed in the Mortgage Loan Schedule (except that, in the case of Mortgage
Loans that are Delay Delivery Mortgage Loans, such delivery may take place
within five Business Days of the Closing Date) as of the Closing Date. The
delivery of the Mortgage Files shall be made against payment by the Depositor
of the purchase price, previously agreed to by the Seller and Depositor, for
the Mortgage Loans. With respect to any Mortgage Loan that does not have a
first payment date on or before the Due Date in the month of the first
Distribution Date, the Seller shall deposit into the Distribution Account on
the first Distribution Account Deposit Date an amount equal to one month's
interest at the related Adjusted Mortgage Rate on the Cut-off Date Principal
Balance of such Mortgage Loan.
(b) The Depositor, concurrently with the execution and delivery of this
Agreement, hereby transfers to the Trustee for the benefit of the
Certificateholders, without recourse, all the interest of the Depositor in
the Trust Fund, together with the Depositor's right to require the Seller to
cure any breach of a representation or warranty made in this Agreement by the
Seller or to repurchase or substitute for any affected Mortgage Loan in
accordance with this Agreement.
(c) In connection with the transfer and assignment of each Mortgage
Loan, the Depositor has delivered (or, in the case of the Delay Delivery
Mortgage Loans, will deliver to the Trustee within the time periods specified
in the definition of Delay Delivery Mortgage Loans), for the benefit of the
Certificateholders the following documents or instruments with respect to
each Mortgage Loan so assigned:
(i) The original Mortgage Note, endorsed by manual or facsimile
signature in blank in the following form: "Pay to the order of
_______________ ______________without recourse," with all intervening
endorsements showing a complete chain of endorsement from the originator
to the Person endorsing the Mortgage Note (each endorsement being
sufficient to transfer all interest of the party so endorsing, as
noteholder or assignee thereof, in that Mortgage Note) or a lost note
affidavit for any Lost Mortgage Note from the Seller stating that the
original Mortgage Note was lost or destroyed, together with a copy of the
Mortgage Note;
(ii) Except as provided below and for each Mortgage Loan that is not
a MERS Mortgage Loan, the original recorded Mortgage or a copy of such
Mortgage certified by the Seller as being a true and complete copy of the
Mortgage (or, in the case of a Mortgage for which the related Mortgaged
Property is located in the Commonwealth of Puerto Rico, a true copy of the
Mortgage certified as such by the applicable notary) and in the case of
each MERS Mortgage Loan, the original Mortgage, noting the presence of the
MIN of the Mortgage Loan and either language indicating 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
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assignment thereof to MERS, with evidence of recording indicated thereon,
or a copy of the Mortgage certified by the public recording office in
which such Mortgage has been recorded;
(iii) In the case of a Mortgage Loan that is not a MERS Mortgage
Loan, a duly executed assignment of the Mortgage (which may be included in
a blanket assignment or assignments), together with, except as provided
below, all interim recorded assignments of the mortgage (each assignment,
when duly and validly completed, to be in recordable form and sufficient
to effect the assignment of and transfer to its assignee of the Mortgage
to which the assignment relates). If the related Mortgage has not been
returned from the applicable public recording office, the assignment of
the Mortgage may exclude the information to be provided by the recording
office. The assignment of Mortgage need not be delivered in the case of a
Mortgage for which the related Mortgage Property is located in the
Commonwealth of Puerto Rico;
(iv) The original or copies of each assumption, modification,
written assurance, or substitution agreement;
(v) Except as provided below, the original or duplicate original
lender's title policy and all its riders;
(vi) The originals of the following documents for each Cooperative
Loan:
(A) the Co-op Shares, together with a stock power in blank;
(B) the executed Security Agreement;
(C) the executed Proprietary Lease;
(D) the executed Recognition Agreement;
(E) the executed UCC-1 financing statement that has been
filed in all places required to perfect the Seller's
interest in the Co-op Shares and the Proprietary Lease
with evidence of recording on it; and
(F) executed UCC-3 financing statements or other appropriate
UCC financing statements required by state law,
evidencing a complete and unbroken line from the
mortgagee to the Trustee with evidence of recording
thereon (or in a form suitable for recordation).
In addition, in connection with the assignment of any MERS Mortgage
Loan, the Seller agrees that it will cause, at the Seller's expense, the MERS(R)
System to indicate that the Mortgage Loans sold by the Seller to the Depositor
have been assigned by the Seller to the Trustee in accordance with this
Agreement for the benefit of the Certificateholders by including (or deleting,
in the case of Mortgage Loans that are repurchased in accordance with this
Agreement) in such computer files the information required by the MERS(R) System
to identify the series of the Certificates issued in connection with such
Mortgage Loans. The Seller further agrees that it will not, and will not permit
the Servicer to, and the Servicer agrees that it will not, alter the information
referenced in this paragraph with respect to any Mortgage Loan sold by the
Seller to the Depositor during the term of this Agreement unless and until such
Mortgage Loan is repurchased in accordance with the terms of this Agreement.
43
In the event that in connection with any Mortgage Loan that is not a MERS
Mortgage Loan the Depositor cannot deliver (a) the original recorded Mortgage,
(b) all interim recorded assignments or (c) the lender's title policy (together
with all riders thereto) satisfying the requirements of clause (ii), (iii) or
(v) above, respectively, concurrently with the execution and delivery of this
Agreement because such document or documents have not been returned from the
applicable public recording office in the case of clause (ii) or (iii) above, or
because the title policy has not been delivered to either the Servicer or the
Depositor by the applicable title insurer in the case of clause (v) above, then
the Depositor shall promptly deliver to the Trustee, in the case of clause (ii)
or (iii) above, the original Mortgage or the interim assignment, as the case may
be, with evidence of recording indicated on when it is received from the public
recording office, or a copy of it, certified, if appropriate, by the relevant
recording office and in the case of clause (v) above, the original or a copy of
a written commitment or interim binder or preliminary report of title issued by
the title insurance or escrow company, with the original or duplicate copy
thereof to be delivered to the Trustee upon receipt thereof. The delivery of the
original Mortgage Loan and each interim assignment or a copy of them, certified,
if appropriate, by the relevant recording office, shall not be made later than
one year following the Closing Date, or, in the case of clause (v) above, later
than 120 days following the Closing Date. If the Depositor is unable to deliver
each Mortgage by that date and each interim assignment because any documents
have not been returned by the appropriate recording office, or, in the case of
each interim assignment, because the related Mortgage has not been returned by
the appropriate recording office, the Depositor shall deliver the documents to
the Trustee as promptly as possible upon their receipt and, in any event, within
720 days following the Closing Date.
The Depositor shall forward to the Trustee (a) from time to time
additional original documents evidencing an assumption or modification of a
Mortgage Loan and (b) any other documents required to be delivered by the
Depositor or the Servicer to the Trustee. If the original Mortgage is not
delivered and in connection with the payment in full of the related Mortgage
Loan the public recording office requires the presentation of a "lost
instruments affidavit and indemnity" or any equivalent document, because only a
copy of the Mortgage can be delivered with the instrument of satisfaction or
reconveyance, the Servicer shall execute and deliver the required document to
the public recording office. If a public recording office retains the original
recorded Mortgage or if a Mortgage is lost after recordation in a public
recording office, the Seller shall deliver to the Trustee a copy of the Mortgage
certified by the public recording office to be a true and complete copy of the
original recorded Mortgage.
As promptly as practicable after any transfer of a Mortgage Loan under
this Agreement, and in any event within thirty days after the transfer, the
Trustee shall (i) affix the Trustee's name to each assignment of Mortgage, as
its assignee, and (ii) cause to be delivered for recording in the appropriate
public office for real property records the assignments of the Mortgages to the
Trustee, except that, if the Trustee has not received the information required
to deliver any assignment of a Mortgage for recording, the Trustee shall deliver
it as soon as practicable after receipt of the needed information and in any
event within thirty days.
If any Mortgage Loans have been prepaid in full as of the Closing Date,
the Depositor, in lieu of delivering the above documents to the Trustee, will
deposit in the Certificate Account the portion of the prepayment that is
required to be deposited in the Certificate Account pursuant to Section 3.06.
Notwithstanding anything to the contrary in this Agreement, within five
Business Days after the Closing Date, the Seller shall either
(x) deliver to the Trustee the Mortgage File as required pursuant to
this Section 2.01 for each Delay Delivery Mortgage Loan or
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(y) (A) repurchase the Delay Delivery Mortgage Loan or (B)
substitute the Substitute Mortgage Loan for a Delay Delivery
Mortgage Loan, which repurchase or substitution shall be
accomplished in the manner and subject to the conditions in Section
2.03 (treating each such Delay Delivery Mortgage Loan as a Deleted
Mortgage Loan for purposes of such Section 2.03);
provided, however, that if the Seller fails to deliver a Mortgage File for any
Delay Delivery Mortgage Loan within the period specified herein, the Seller
shall use its best reasonable efforts to effect a substitution, rather than a
repurchase of, such Deleted Mortgage Loan and provided further that the cure
period provided for in Section 2.02 or in Section 2.03 shall not apply to the
initial delivery of the Mortgage File for such Delay Delivery Mortgage Loan, but
rather the Seller shall have five (5) Business Days to cure such failure to
deliver. At the end of such period, the Trustee shall send a Delay Delivery
Certification for the Delay Delivery Mortgage Loans delivered during such period
in accordance with the provisions of Section 2.02.
(d) The Seller agrees to treat the transfer of the Mortgage Loans to
the Depositor as a sale for all tax, accounting, and regulatory purposes.
(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.
(f) Notwithstanding the foregoing, however, for administrative
convenience and facilitation of servicing and to reduce closing costs, the
assignments of Mortgage shall not be required to be submitted for recording
(except with respect to any Mortgage Loan located in Maryland) unless such
failure to record would, as certified to the Trustee in writing by the
Servicer, result in a withdrawal or a downgrading by any Rating Agency of
the rating on any Class of Certificates; provided, however, that each
assignment of Mortgage shall be submitted for recording by the Seller
(at the direction of the Servicer) in the manner described above, at no
expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i)
reasonable direction by the Holders of Certificates entitled to at least 25%
of the Voting Rights, (ii) [reserved], (iii) the occurrence of a bankruptcy,
insolvency or foreclosure relating to the Seller, (iv) the occurrence of a
servicing transfer as described in Section 7.02 hereof and (v) if the Seller
is not the Servicer and with respect to any one assignment or Mortgage, the
occurrence of a bankruptcy, insolvency or foreclosure relating to the
Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the
Servicer is unable to pay the cost of recording the assignments of Mortgage,
such expense shall be paid by the Trustee and shall be reimbursable out of
the Distribution Account.
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
45
examine said documents, instruments, certificates or other papers to determine
that the same are genuine, enforceable or appropriate for the represented
purpose or that they have actually been recorded in the real estate records or
that they are other than what they purport to be on their face.
By the thirtieth day after the Closing Date (or if that day is not a
Business Day, the succeeding Business Day), the Trustee shall deliver to the
Depositor, the Servicer, and the Seller a Delay Delivery Certification with
respect to the Mortgage Loans substantially in the form of Exhibit G-2, with any
applicable exceptions noted thereon.
By the ninetieth day after the Closing Date (or if that day is not a
Business Day, the succeeding Business Day), the Trustee shall deliver to the
Depositor, the Servicer and the Seller a Final Certification with respect to the
Mortgage Loans in the form of Exhibit H, with any applicable exceptions noted
thereon.
If, in the course of its review, the Trustee finds any document
constituting a part of a Mortgage File that does not meet the requirements of
Section 2.01, the Trustee shall list such as an exception in the Final
Certification. The Trustee shall not make any determination as to whether (i)
any endorsement is sufficient to transfer all interest of the party so
endorsing, as noteholder or assignee thereof, in that Mortgage Note or (ii) any
assignment is in recordable form or is sufficient to effect the assignment of
and transfer to the assignee thereof under the mortgage to which the assignment
relates. The Seller shall promptly correct any defect that materially and
adversely affects the interests of the Certificateholders within 90 days from
the date it was so notified of the defect and, if the Seller does not correct
the defect within that period, the Seller shall either (a) substitute for the
related Mortgage Loan a Substitute Mortgage Loan, which substitution shall be
accomplished in the pursuant Section 2.03, or (b) purchase the Mortgage Loan at
its Purchase Price from the Trustee within 90 days from the date the Seller was
notified of the defect in writing.
If a substitution or purchase of a Mortgage Loan pursuant to this
provision is required because of a delay in delivery of any documents by the
appropriate recording office, or there is a dispute between either the Servicer
or the Seller and the Trustee over the location or status of the recorded
document, then the substitution or purchase shall occur within 720 days from the
Closing Date. In no other case may a substitution or purchase occur more than
540 days from the Closing Date. 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,
46
upon the execution or receipt thereof, the originals of any other documents or
instruments constituting the Mortgage File that come into the possession of the
Servicer from time to time.
The obligation of the Seller to substitute for or to purchase any Mortgage
Loan that does not meet the requirements of Section 2.01 shall constitute the
sole remedy respecting the defect available to the Trustee, the Depositor, and
any Certificateholder against the Seller.
Section 2.03 Representations, Warranties, and Covenants of the Seller and
the Servicer.
(a) IndyMac, in its capacities as Seller and Servicer, makes the
representations and warranties in Schedule II, and by this reference
incorporated in this Agreement, to the Depositor and the Trustee, as of the
Closing Date.
(b) The Seller, in its capacity as Seller, makes the representations
and warranties in Schedule III, and by this reference incorporated in this
Agreement, to the Depositor and the Trustee, as of the Closing Date, or if so
specified in Schedule III, as of the Cut-off Date.
(c) Upon discovery by any of the parties hereto of a breach of a
representation or warranty made pursuant to Section 2.03(b) that materially
and adversely affects the interests of the Certificateholders in any Mortgage
Loan, the party discovering such breach shall give prompt notice thereof to
the other parties. Any breach of the representations or warranties made
pursuant to clauses (28) and (33) of Schedule III will be deemed to
materially and adversely affect the interests of the Certificateholder in the
related Mortgage Loan. 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
47
Seller shall be deemed to have made with respect to the Substitute Mortgage
Loans, as of the date of substitution, the representations and warranties made
pursuant to Section 2.03(b) with respect to the Mortgage Loan. Upon any
substitution and the deposit to the Certificate Account of the amount required
to be deposited therein in connection with the substitution as described in the
following paragraph, the Trustee shall release the Mortgage File held for the
benefit of the Certificateholders relating to the Deleted Mortgage Loan to the
Seller and shall execute and deliver at the Seller's direction such instruments
of transfer or assignment prepared by the Seller, in each case without recourse,
as shall be necessary to vest title in the Seller, or its designee, the
Trustee's interest in any Deleted Mortgage Loan substituted for pursuant to this
Section 2.03.
For any month in which the Seller substitutes one or more Substitute
Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer will
determine the amount (if any) by which the aggregate principal balance of all
such Substitute Mortgage Loans as of the date of substitution is less than the
aggregate Stated Principal Balance of all such Deleted Mortgage Loans (after
application of the scheduled principal portion of the monthly payments due in
the month of substitution). The amount of such shortage (the "Substitution
Adjustment Amount") plus, if the Seller is not the Servicer, an amount equal to
the aggregate of any unreimbursed Advances and Servicer Advances with respect to
such Deleted Mortgage Loans shall be deposited into the Certificate Account by
the Seller by the Distribution Account Deposit Date for the Distribution Date in
the month succeeding the calendar month during which the related Mortgage Loan
became required to be purchased or replaced hereunder. If the Seller repurchases
a Mortgage Loan, the Purchase Price therefor shall be deposited in the
Certificate Account pursuant to Section 3.06 by the Distribution Account Deposit
Date for the Distribution Date in the month following the month during which the
Seller became obligated hereunder to repurchase or replace the Mortgage Loan and
upon such deposit of the Purchase Price and receipt of a Request for Release in
the form of Exhibit N, the Trustee shall release the related Mortgage File held
for the benefit of the Certificateholders to such Person, and the Trustee shall
execute and deliver at such Person's direction such instruments of transfer or
assignment prepared by such Person, in each case without recourse, as shall be
necessary to transfer title from the Trustee. The obligation under this
Agreement of any Person to cure, repurchase, or replace any Mortgage Loan as to
which a breach has occurred and is continuing shall constitute the sole remedy
against the Person respecting the breach available to Certificateholders, the
Depositor, or the Trustee on their behalf.
The representations and warranties made pursuant to this Section 2.03
shall survive delivery of the respective Mortgage Files to the Trustee for the
benefit of the Certificateholders and shall not be waived by the Depositor.
The Seller assigns to the Depositor and the Depositor assigns to the
Trustee all rights the Seller might have under contracts with third parties
relating to early payment defaults on the Mortgage Loans ("EPD Rights") and the
Servicer assumes any related duties as part of its servicing obligations.
Consistent with the Servicing Standard, the Servicer shall attempt to enforce
the EPD Rights. If the Servicer's enforcement of the EPD Rights obligates the
Servicer to sell a Mortgage Loan to a third party, the Servicer shall repurchase
the Mortgage Loan at the Purchase Price and sell the Mortgage Loan to the third
party, provided however, in no case shall the Servicer be obligated to
repurchase a Mortgage Loan on account of EPD Rights unless the Servicer shall
have previously received the 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
to 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 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
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such instruments of transfer or assignment prepared by the purchaser of such
Mortgage Loan, in each case without recourse, as shall be necessary to vest in
the purchaser of such Mortgage Loan any Mortgage Loan released pursuant hereto
and the purchaser of such Mortgage Loan shall succeed to all the Trustee's
right, title and interest in and to such Mortgage Loan and all security and
documents related thereto. Such assignment shall be an assignment outright and
not for security. The purchaser of such Mortgage Loan shall thereupon own such
Mortgage Loan, and all security and documents, free of any further obligation to
the Trustee or the Certificateholders with respect thereto.
Section 2.04 Representations and Warranties of the Depositor as to the
Mortgage Loans.
The Depositor represents and warrants to the Trustee with respect to each
Mortgage Loan as of the date of this Agreement or such other date set forth in
this Agreement that as of the Closing Date, and following the transfer of the
Mortgage Loans to it by the Seller, the Depositor had good title to the Mortgage
Loans and the Mortgage Notes were subject to no offsets, defenses, or
counterclaims.
The representations and warranties in this Section 2.04 shall survive
delivery of the Mortgage Files to the Trustee. Upon discovery by the Depositor
or the Trustee of any breach of any of the representations and warranties in
this Section that materially and adversely affects the interest of the
Certificateholders, the party discovering the breach shall give prompt written
notice to the others and to each Rating Agency.
Section 2.05 Delivery of Opinion of Counsel in Connection with
Substitutions.
(a) Notwithstanding any contrary provision of this Agreement, no
substitution pursuant to Section 2.02 or 2.03 shall be made more than 90 days
after the Closing Date unless the Seller delivers to the Trustee an Opinion
of Counsel, which Opinion of Counsel shall not be at the expense of either
the Trustee or the Trust Fund, addressed to the Trustee, to the effect that
such substitution will not (i) result in the imposition of the tax on
"prohibited transactions" on the Trust Fund or contributions after the
Startup Date, as defined in sections 860F(a)(2) and 860G(d) of the Code,
respectively or (ii) cause any REMIC created under this Agreement to fail to
qualify as a REMIC at any time that any Certificates are outstanding.
(b) Upon discovery by the Depositor, the Seller, the Servicer or the
Trustee that any Mortgage Loan does not constitute a "qualified mortgage"
within the meaning of section 860G(a)(3) of the Code, the party discovering
such fact shall promptly (and in any event within five Business Days of
discovery) give written notice thereof to the other parties. In connection
therewith, the Trustee shall require the Seller, at the Seller's option, to
either (i) substitute, if the conditions in Section 2.03(c) with respect to
substitutions are satisfied, a Substitute Mortgage Loan for the affected
Mortgage Loan, or (ii) repurchase the affected Mortgage Loan within 90 days
of such discovery in the same manner as it would a Mortgage Loan for a breach
of representation or warranty made pursuant to Section 2.03. The Trustee
shall reconvey to the Seller the Mortgage Loan to be released pursuant hereto
in the same manner, and on the 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.
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Section 2.07 REMIC Matters.
The Preliminary Statement sets forth the designations and "latest possible
maturity date" for federal income tax purposes of all interests created under
this Agreement. The "Startup Day" for purposes of the REMIC Provisions shall be
the Closing Date. Each REMIC's fiscal year shall be the calendar year.
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ARTICLE THREE
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01 Servicer to Service Mortgage Loans.
For and on behalf of the Certificateholders, the Servicer shall service
and administer the Mortgage Loans in accordance with this Agreement and the
Servicing Standard.
The Servicer shall not make or permit any modification, waiver, or
amendment of any term of any Mortgage Loan that would cause any REMIC created
under this Agreement to fail to qualify as a REMIC or result in the imposition
of any tax under section 860F(a) or section 860G(d) of the Code.
Without limiting the generality of the foregoing, the Servicer, in its own
name or in the name of the Depositor and the Trustee, is hereby authorized and
empowered by the Depositor and the Trustee, when the Servicer believes it
appropriate in its reasonable judgment, to execute and deliver, on behalf of the
Trustee, the Depositor, the Certificateholders, or any of them, any instruments
of satisfaction or cancellation, or of partial or full release or discharge, and
all other comparable instruments, with respect to the Mortgage Loans, and with
respect to the Mortgaged Properties held for the benefit of the
Certificateholders. The Servicer shall prepare and deliver to the Depositor or
the Trustee any documents requiring execution and delivery by either or both of
them appropriate to enable the Servicer to service and administer the Mortgage
Loans to the extent that the Servicer is not permitted to execute and deliver
such documents pursuant to the preceding sentence. Upon receipt of the
documents, the Depositor or the Trustee shall execute the documents and deliver
them to the Servicer.
The Servicer further is authorized and empowered by the Trustee, on behalf
of the Certificateholders and the Trustee, in its own name, when the Servicer
believes it appropriate in its best judgment to register any Mortgage Loan on
the MERS(R) System, or cause the removal from the registration of any Mortgage
Loan on the MERS(R) System, to execute and deliver, on behalf of the Trustee and
the Certificateholders or any of them, any and all instruments of assignment and
other comparable instruments with respect to such assignment or re-recording of
a Mortgage in the name of MERS, solely as nominee for the Trustee and its
successors and assigns.
In accordance with and to the extent of the Servicing Standard, the
Servicer shall advance funds necessary to effect the payment of taxes and
assessments on the Mortgaged Properties, which advances shall be reimbursable in
the first instance from related collections from the Mortgagors pursuant to
Section 3.07, and further as provided in Section 3.09. The costs incurred by the
Servicer in effecting the timely payments of taxes and assessments on the
Mortgaged Properties and related insurance premiums shall not, for the purpose
of calculating monthly distributions to the Certificateholders, be added to the
Stated Principal Balances of the related Mortgage Loans, notwithstanding that
the Mortgage Loans so permit.
Nothing in this Agreement to the contrary shall limit the Servicer from
undertaking any legal action that it may deem appropriate with respect to the
Mortgage Loans including, without limitation, any rights or causes of action
arising out of the origination of the Mortgage Loans.
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Section 3.02 [Reserved].
Section 3.03 Rights of the Depositor and the Trustee in Respect of the
Servicer.
The Depositor may, but is not obligated to, enforce the obligations of the
Servicer under this Agreement and may, but is not obligated to, perform, or
cause a designee to perform, any defaulted obligation of the Servicer under this
Agreement and in connection with any such defaulted obligation to exercise the
related rights of the Servicer under this Agreement; provided that the Servicer
shall not be relieved of any of its obligations under this Agreement by virtue
of such performance by the Depositor or its designee. Neither the Trustee nor
the Depositor shall have any responsibility or liability for any action or
failure to act by the Servicer nor shall the Trustee or the Depositor be
obligated to supervise the performance of the Servicer under this Agreement or
otherwise.
Section 3.04 [Reserved].
Section 3.05 Trustee to Act as Servicer.
If the Servicer for any reason is no longer the Servicer under this
Agreement (including because of the occurrence or existence of an Event of
Default or termination by the Depositor), the Trustee or its successor shall
assume all of the rights and obligations of the Servicer under this Agreement
arising thereafter (except that the Trustee shall not be
(i) liable for losses of the Servicer pursuant to Section 3.10 or
any acts or omissions of the predecessor Servicer hereunder,
(ii) obligated to make Advances if it is prohibited from doing so
by applicable law,
(iii) obligated to effectuate repurchases or substitutions of
Mortgage Loans hereunder, including repurchases or substitutions
pursuant to Section 2.02 or 2.03,
(iv) responsible for expenses of the Servicer pursuant to Section
2.03, or
(v) deemed to have made any representations and warranties of the
Servicer hereunder). Any assumption shall be subject to Section 7.02.
Notwithstanding anything else in this Agreement to the contrary, in no
event shall the Trustee be liable for any servicing fee or for any differential
in the amount of the Servicing Fee paid under this Agreement and the amount
necessary to induce any successor Servicer to act as successor Servicer under
this Agreement and the transactions provided for in this Agreement.
Section 3.06 Collection of Mortgage Loan Payments; Certificate Account;
Distribution Account.
(a) In accordance with and to the extent of the Servicing Standard,
the Servicer shall make reasonable efforts in accordance with the customary
and usual standards of practice of prudent mortgage servicers to collect
all payments called for under the Mortgage Loans to the extent the
procedures are consistent with this Agreement and any related Required
Insurance Policy. Consistent with the foregoing, the Servicer may in its
discretion (i) waive any late payment charge or, subject to Section 3.20,
any Prepayment Charge in connection with the prepayment of a Mortgage Loan
and (ii) extend the due dates for payments due on a Delinquent Mortgage
Loan for a period not greater than 125 days. In connection with a seriously
delinquent or defaulted Mortgage Loan, the Servicer may,
52
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;
(v) any amounts required to be deposited by the Servicer pursuant
to Sections 3.10 and 3.12;
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(vi) all Purchase Prices from the Servicer or Seller and all
Substitution Adjustment Amounts;
(vii) all Advances made by the Servicer pursuant to Section 4.01;
(viii) any other amounts required to be deposited under this
Agreement; and
(ix) all Prepayment Charges collected.
In addition, with respect to any Mortgage Loan that is subject to a
buydown agreement, on each Due Date for the Mortgage Loan, in addition to the
monthly payment remitted by the Mortgagor, the Servicer shall cause funds to
be deposited into the Certificate Account in an amount required to cause an
amount of interest to be paid with respect to the Mortgage Loan equal to the
amount of interest that has accrued on the Mortgage Loan from the preceding
Due Date at the Mortgage Rate net of the Servicing Fee Rate on that date.
The foregoing requirements for remittance by the Servicer shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of late payment charges or assumption
fees, if collected, need not be remitted by the Servicer. If the Servicer remits
any amount not required to be remitted, it may at any time withdraw that amount
from the Certificate Account, any provision in this Agreement to the contrary
notwithstanding. The withdrawal or direction may be accomplished by delivering
written notice of it to the Trustee or any other institution maintaining the
Certificate Account that describes the amounts deposited in error in the
Certificate Account. The Servicer shall maintain adequate records with respect
to all withdrawals made pursuant to this Section 3.06. All funds deposited in
the Certificate Account shall be held in trust for the Certificateholders until
withdrawn in accordance with Section 3.09.
(e) The Trustee shall establish and maintain the Distribution
Account on behalf of the Certificateholders. The Trustee shall, promptly
upon receipt, deposit in the Distribution Account and retain in the
Distribution Account the following:
(i) the aggregate amount remitted by the Servicer to the Trustee
pursuant to Section 3.09(a);
(ii) any amount deposited by the Servicer pursuant to Section
3.06(f) in connection with any losses on Permitted Investments; and
(iii) any other amounts deposited under this Agreement that are
required to be deposited in the Distribution Account.
If the Servicer remits any amount not required to be remitted, it may at
any time direct the Trustee in writing to withdraw that amount from the
Distribution Account, any provision in this Agreement to the contrary
notwithstanding. The direction may be accomplished by delivering an Officer's
Certificate to the Trustee that describes the amounts deposited in error in the
Distribution Account. All funds deposited in the Distribution Account shall be
held by the Trustee in trust for the Certificateholders until disbursed in
accordance with this Agreement or withdrawn in accordance with Section 3.09. In
no event shall the Trustee incur liability for withdrawals from the Distribution
Account at the direction of the Servicer.
(f) Each institution at which the Certificate Account is maintained
shall invest the funds in such account as directed in writing by the
Servicer in Permitted Investments, which shall mature not
54
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) The Servicer shall give notice to the Trustee, the Seller, each
Rating Agency and the Depositor of any proposed change of the location of
the Certificate Account not later than 30 days and not more than 45 days
prior to any change of this Agreement. The Trustee shall give notice to the
Servicer, the Seller, each Rating Agency and the Depositor of any proposed
change of the location of the Distribution Account not later than 30 days
and not more than 45 days prior to any change of this Agreement.
Section 3.07 Collection of Taxes, Assessments and Similar Items; Escrow
Accounts.
(a) To the extent required by the related Mortgage Note and not
violative of current law, the Servicer shall establish and maintain one or
more accounts (each, an "Escrow Account") and deposit and retain therein
all collections from the Mortgagors (or advances) for the payment of taxes,
assessments, hazard insurance premiums or comparable items for the account
of the Mortgagors. Nothing herein shall require the Servicer to compel a
Mortgagor to establish an Escrow Account in violation of applicable law.
(b) Withdrawals of amounts so collected from the Escrow Accounts may
be made only to effect timely payment of taxes, assessments, hazard
insurance premiums, condominium or PUD association dues, or comparable
items, to reimburse (without duplication) the Servicer out of related
collections for any payments made pursuant to Section 3.01 (with respect to
taxes and assessments and insurance premiums) and Section 3.10 (with
respect to hazard insurance), to refund to any Mortgagors any sums
determined to be overages, to pay interest, if required by law or the
related Mortgage or Mortgage Note, to Mortgagors on balances in the Escrow
Account or to clear and terminate the Escrow Account at the termination of
this Agreement in accordance with Section 9.01. The Escrow Accounts shall
not be a part of the Trust Fund.
(c) The Servicer shall advance any payments referred to in Section
3.07(a) that are not timely paid by the Mortgagors or advanced by the
Servicer on the date when the tax, premium or other cost for which such
payment is intended is due, but the Servicer shall be required so to
advance only to the extent that such advances, in the good faith
judgment of the Servicer, will be recoverable by the Servicer out of
Insurance Proceeds, Liquidation Proceeds or otherwise.
55
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 and the
Distribution Account.
(a) The Servicer may (and, in the case of clause (ix) below, shall)
from time to time make withdrawals from the Certificate Account for the
following purposes:
(i) to pay to the Servicer (to the extent not previously retained)
the servicing compensation to which it is entitled pursuant to Section
3.15, and to pay to the Servicer, as additional servicing compensation,
earnings on or investment income with respect to funds in or credited to
the Certificate Account;
(ii) to reimburse the Servicer or successor Servicer for the
unreimbursed Advances made by it, such right of reimbursement pursuant
to this subclause (ii) being limited to amounts received on the Mortgage
Loans in respect of which the Advance was made;
(iii) to reimburse the Servicer or successor Servicer for any
Nonrecoverable Advance previously made by it;
(iv) to reimburse the Servicer for Insured Expenses from the
related Insurance Proceeds;
(v) to reimburse the Servicer for (a) unreimbursed Servicing
Advances, the Servicer's right to reimbursement pursuant to this clause
(a) with respect to any Mortgage Loan being limited to amounts received
on the Mortgage Loans that represent late recoveries of the payments for
which the advances were made pursuant to Section 3.01 or Section 3.07,
(b) unreimbursed Servicing Advances made in respect of a Mortgage Loan
for which such Servicing Advances are not recoverable from the Mortgagor
and (c) for unpaid Servicing Fees as provided in Section 3.12;
(vi) to pay to the purchaser, with respect to each Mortgage Loan
or property acquired in respect of such Mortgage Loan that has been
purchased pursuant to Section 2.02, 2.03, or 3.12, all amounts received
thereon after the date of such purchase;
(vii) to reimburse the Seller, the Servicer, or the Depositor for
expenses incurred by any of them and reimbursable pursuant to Section
6.03;
56
(viii) to withdraw any amount deposited in the Certificate Account
and not required to be deposited in the Certificate Account;
(ix) by the Distribution Account Deposit Date, to withdraw (1) the
Available Funds and the Trustee Fee for the Distribution Date, to the
extent on deposit, and (2) the Prepayment Charges on deposit, and remit
such amount to the Trustee for deposit in the Distribution Account; and
(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 last paragraph of
Section 8.11). In addition, the Trustee may from time to time make
withdrawals from the Distribution Account for the following purposes:
(i) to pay to itself the Trustee Fee for the related Distribution
Date;
(ii) 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.
(c) [Reserved].
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
57
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 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
58
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 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
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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.
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
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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 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
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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.
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.
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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 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, 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.
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Section 3.19 [Reserved].
Section 3.20 Prepayment Charges.
(a) The Servicer will not waive any part of any Prepayment Charge
unless the waiver relates to a default or a reasonably foreseeable default,
the Prepayment Charge would cause an undue hardship to the related
borrower, the Mortgaged Property is sold by the Mortgagor, the collection
of any Prepayment Charge would violate any relevant law or regulation or
the waiving of the Prepayment Charge would otherwise benefit the Trust Fund
and it is expected that the waiver would maximize recovery of total
proceeds taking into account the value of the Prepayment Charge and related
Mortgage Loan and doing so is standard and customary in servicing similar
Mortgage Loans (including any waiver of a Prepayment Charge in connection
with a refinancing of a Mortgage Loan that is related to a default or a
reasonably foreseeable default). The Servicer will not waive a Prepayment
Charge in connection with a refinancing of a Mortgage Loan that is not
related to a default or a reasonably foreseeable default.
(b) If a Prepayment Charge is waived other than as permitted by the
prior paragraph, then the Servicer is required to pay the amount of such
waived Prepayment Charge, for the benefit of the Holders of the Class 2-A-2
Certificates, by depositing such amount into the Distribution Account from
its own funds, without any right of reimbursement therefor, together with
and at the time that the amount prepaid on the related Mortgage Loan is
required to be deposited into the Distribution Account.
(c) The Seller represents and warrants to the Depositor and the
Trustee, as of the Closing Date, that the information in the Prepayment
Charge Schedule (including the attached prepayment charge summary) is
complete and accurate in all material respects at the dates as of which the
information is furnished and each Prepayment Charge is permissible and
enforceable in accordance with its terms under applicable state law, except
as the enforceability thereof is limited due to acceleration in connection
with a foreclosure or other involuntary payment.
(d) Upon discovery by the Servicer or a Responsible Officer of the
Trustee of a breach of the foregoing clause (c) that materially and
adversely affects the right of the Holders of the Class 2-A-2 Certificates
to any Prepayment Charge, the party discovering the breach shall give
prompt written notice to the other parties. Within 60 days of the earlier
of discovery by the Servicer or receipt of notice by the Servicer of
breach, the Servicer shall cure the breach in all material respects or
shall pay into the Certificate Account the amount of the Prepayment Charge
that would otherwise be due from the Mortgagor, less any amount
representing such Prepayment Charge previously collected and paid by the
Servicer into the Certificate Account.
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ARTICLE FOUR
DISTRIBUTIONS AND ADVANCES BY THE SERVICER
Section 4.01 Advances.
(a) The Servicer shall determine on or before each Servicer Advance
Date whether it is required to make an Advance pursuant to the definition
thereof. If the Servicer determines it is required to make an Advance, it
shall, on or before the Servicer Advance Date, either (i) deposit into the
Certificate Account an amount equal to the Advance or (ii) make an
appropriate entry in its records relating to the Certificate Account that
any Amount Held for Future Distribution has been used by the Servicer in
discharge of its obligation to make any such Advance. Any funds so applied
shall be replaced by the Servicer by deposit in the Certificate Account no
later than the close of business on the next Servicer Advance Date. The
Servicer shall be entitled to be reimbursed from the Certificate Account
for all Advances of its own funds made pursuant to this Section 4.01 as
provided in Section 3.09. The obligation to make Advances with respect to
any Mortgage Loan shall continue if such Mortgage Loan has been foreclosed
or otherwise terminated and the Mortgaged Property has not been liquidated.
The Servicer shall inform the Trustee of the amount of the Advance to be
made on each Servicer Advance Date no later than the second Business Day
before the related Distribution Date.
(b) If the Servicer determines that it will be unable to comply with
its obligation to make the Advances as and when described in the second
sentence of Section 4.01(a), it shall use its best efforts to give written
notice thereof to the Trustee (each such notice an "Advance Notice"; and
such notice may be given by telecopy), not later than 3:00 P.M., New York
time, on the Business Day immediately preceding the related Servicer
Advance Date, specifying the amount that it will be unable to deposit (each
such amount an "Advance Deficiency") and certifying that such Advance
Deficiency constitutes an Advance hereunder and is not a Nonrecoverable
Advance. If the Trustee receives a Trustee Advance Notice on or before 3:00
P.M., New York time on a Servicer Advance Date, the Trustee is entitled to
immediately terminate the Servicer under Section 7.01, and shall, not later
than 3:00 P.M., New York time, on the related Distribution Date, deposit in
the Distribution Account an amount equal to the Advance Deficiency
identified in such Trustee Advance Notice unless it is prohibited from so
doing by applicable law. Notwithstanding the foregoing, the Trustee shall
not be required to make such deposit if the Trustee shall have received
written notification from the Servicer that the Servicer has deposited or
caused to be deposited in the Certificate Account an amount equal to such
Advance Deficiency by 3:00 P.M. New York time on the related Distribution
Date. If the Trustee has not terminated the Servicer, the Servicer shall
reimburse the Trustee for the amount of any Advance (including interest at
the Prime Rate on the day of such reimbursement published in The Wall
Street Journal) on such amount, made by the Trustee pursuant to this
Section 4.01(b) not later than the second day following the related
Servicer Advance Date. In the event that the Servicer does not reimburse
the Trustee in accordance with the requirements of the preceding sentence,
the Trustee shall immediately (a) terminate all of the rights and
obligations of the Servicer under this Agreement in accordance with Section
7.01 and (b) subject to the limitations set forth in Section 3.05, assume
all of the rights and obligations of the Servicer hereunder.
(c) The Servicer shall, not later than the close of business on the
Business Day immediately preceding each Servicer Advance Date, deliver to
the Trustee a report (in form and substance reasonably satisfactory to the
Trustee) that indicates (i) the Mortgage Loans with respect to which the
Servicer has determined that the related Scheduled Payments should be
advanced and (ii) the amount of the related Scheduled Payments. The
Servicer shall deliver to the Trustee on the related Servicer
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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 the
Available Funds for Collateral Allocation Group 1 from the Distribution
Account and apply such funds to distributions on the Group 1 Senior
Certificates in the following order and priority and, in each case, to the
extent of related Available Funds remaining:
(i) concurrently, to each interest-bearing Class of Group 1 Senior
Certificates, an amount allocable to interest equal to the related Class
Optimal Interest Distribution Amount, any shortfall being allocated
among such Classes in proportion to the amount of the Class Optimal
Interest Distribution Amount that would have been distributed in the
absence of such shortfall; 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 Group 1 Senior Certificates
as follows:
(A) [reserved]; and
(B) on each Distribution Date, the Principal Amount up to
the amount of the related Senior Principal
Distribution Amount for Collateral Allocation Group 1
for such Distribution Date will be distributed in the
following order of priority:
1. 33.4459841436437%, concurrently, to the Class
1-A-1 and Class 1-A-2 Certificates, pro rata, until
their respective Class Certificate Balances are
reduced to zero; and
2. 66.5540158563563% in the following priority:
(i) to the Class A-R Certificates, until its
Class Certificate Balance is reduced to zero;
(ii) to the Class 1-A-4 Certificates, the
Priority Amount, until its Class Certificate
Balance is reduced to zero;
(iii) to the Class 1-A-3 Certificates, until
its Class Certificate Balance is reduced to zero;
and
(iv) to the Class 1-A-4 Certificates,
without regard to the Priority Amount, until its
Class Certificate Balance is reduced to zero;
(iv) [reserved];
(2) On each Distribution Date, the Trustee shall withdraw the Available
Funds for Collateral Allocation Group 2 from the Distribution Account and
apply such funds to distributions on the Group 2
66
Senior Certificates in the following order and priority and, in each case, to
the extent of related Available Funds remaining:
(i) concurrently, to each interest-bearing Class of Group 2 Senior
Certificates, an amount allocable to interest equal to the related Class
Optimal Interest Distribution Amount, any shortfall being allocated
among such Classes in proportion to the amount of the Class Optimal
Interest Distribution Amount that would have been distributed in the
absence of such shortfall; provided that prior to the Accrual
Termination Date, the Accrual Amount shall be distributed as provided in
Section 4.02(a)(2)(ii);
(ii) [reserved];
(iii) concurrently, to the Classes of Group 2 Senior Certificates
as follows:
(A) [reserved]; and
(B) on each Distribution Date, the Principal Amount, up to
the amount of the related Senior Principal
Distribution Amount for such Distribution Date, will
be distributed to the Class 2-A-1 Certificates, until
its Class Certificate Balance is reduced to zero;
(iv) [reserved];
(3) On each Distribution Date, the Trustee shall withdraw the Available
Funds for Collateral Allocation Group PO from the Distribution Account and apply
such funds to distributions on the Class PO Certificates until its Class
Certificate Balance is reduced to zero to the extent of related Available Funds
remaining;
(4) On each Distribution Date, after making the distributions described in
Section 4.02(a)(1) and Section 4.02(a)(2), Available Funds remaining will be
distributed to the Senior Certificates to the extent provided in Section 4.03.
(5) On each Distribution Date, Available Funds from Collateral Allocation
Group 1 and 2 remaining after making the distributions described in Section
4.02(a)(1) and Section 4.02(a)(2) and Section 4.02(a)(4) 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) concurrently, to the Class B-1 and Class B-1IO
Certificates, pro rata, an amount allocable to
interest equal to the Class Optimal Interest
Distribution Amount for each 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) concurrently, to the Class B-2 and Class B-2IO
Certificates, pro rata, an amount allocable to
interest equal to the Class Optimal Interest
Distribution Amount for each such Class for such
Distribution Date;
67
(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;
(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;
(5) [reserved]; and
(6) to the Class A-R Certificates, any remaining funds; provided, that
such amounts shall not include the $100 held in trust for the Class 2-A-2
Certificates.
On each Distribution Date, all amounts representing Prepayment Charges
received during the related Prepayment Period will be distributed to the Holders
of the Class 2-A-2 Certificates. On the Distribution Date immediately following
the expiration of the latest Prepayment Charge Period of the Mortgage Loans, the
$100 held in trust for the Class 2-A-2 Certificates will be distributed to the
holders of the Class 2-A-2 Certificates.
On any Distribution Date, amounts distributed in respect of Class PO
Deferred Amounts will not reduce the Class Certificate Balance of the Class PO
Certificates.
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(b) On each Distribution Date prior to and including the applicable
Accrual Termination Date with respect to each Class of Accrual
Certificates, the Accrual Amount for such Class 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 such Class of Accrual
Certificates, but shall instead be added to the related Class Certificate
Balance of such Class on the related Distribution Date. With respect to any
Distribution Date prior to and including the applicable Accrual Termination
Date on which principal payments on any Class of Accrual Certificates are
distributed pursuant to Section 4.02(a)(1)(iii) or Section 4.02(a)(2)(iii),
the related Accrual Amount shall be deemed to have been added on such
Distribution Date to the related Class Certificate Balance (and included in
the amount distributable on the related Class or Classes or Accretion
Directed Certificates pursuant to Section 4.02(a)(1)(iii) or Section
4.02(a)(2)(iii) 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 applicable Accrual Termination Date.
(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 Principal Amount, up to the amount of the
Senior Principal Distribution Amount for Collateral Allocation Group 1 for
such Distribution Date will be distributed concurrently, as principal, of
the Classes of Group 1 Senior 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's pro rata share of Net Prepayment Interest Shortfalls
based (x) with respect to a Class of Senior Certificates, on the related
Class Optimal Interest Distribution Amount and (y) with respect to a Class
of Subordinated Certificates on or prior to a Senior Termination Date on
the Assumed Interest Amount and after a Senior Termination Date, the
related Class' Class Optimal Interest Distribution Amount for such
Distribution Date, 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, with respect to each
Mortgage Loan that became a Fraud Loan during the calendar month preceding
the month of such Distribution Date, the excess of one month's interest at
the related Adjusted Net Mortgage Rate on the Stated Principal Balance of
such Mortgage Loan as of the Due Date in such month over the amount of
Liquidation Proceeds applied as interest on such Mortgage Loan with respect
to such month.
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(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)(5). Notwithstanding the foregoing, the
Class of Subordinated Certificates then outstanding with the lowest
numerical class designation shall not be a Restricted Class.
(f) If the amount of a Realized Loss has been reduced by application
of Subsequent Recoveries with respect to such Mortgage Loan, the amount of
such Subsequent Recoveries will be applied sequentially, in the order of
payment priority, to increase the Class Certificate Balance of each related
Class of Certificates to which Realized Losses have been allocated, but in
each case by not more than the amount of Realized Losses previously
allocated to that Class of Certificates pursuant to Section 4.05. Holders
of such Certificates will not be entitled to any payment in respect of the
Class Optimal Interest Distribution Amount on the amount of such increases
for any Interest Accrual Period preceding the Distribution Date on which
such increase occurs. Any such increases shall be applied to the
Certificate Balance of each Certificate, of such Class in accordance with
its respective Percentage Interest.
Section 4.03 Cross-Collateralization; Adjustments to Available Funds.
If on any Distribution Date the aggregate Class Certificate Balance of the
Senior Certificates in a Senior Certificate Group is greater than (x) in the
case of the Group 1 Senior Certificates, the aggregate Stated Principal Balance
of the Mortgage Loans or portion thereof in Collateral Allocation Group 1 and
(y) in the case of the Group 2 Senior Certificates, the aggregate Stated
Principal Balance of the Mortgage Loans or portion thereof in Collateral
Allocation Group 2 (the "Undercollateralized Group"), then the Trustee shall
reduce the Available Funds of the other Collateral Allocation Group to the
extent that it is not undercollateralized (the "Overcollateralized Group"), as
follows:
(i) to add to the Available Funds of the Undercollateralized Group
an amount equal to the lesser of (a) one month's interest on the
Transfer Payment Received of the Undercollateralized Group at the
weighted average Pass-Through Rate applicable to the Class(es) of Senior
Certificates in the Undercollateralized Group and (b) Available Funds of
the Overcollateralized Group remaining after making distributions to the
Senior Certificates related to the Overcollateralized Group on such
Distribution Date pursuant to Section 4.02; and
(ii) to the Senior Certificates of the Undercollateralized Group,
to the extent of the principal portion of Available Funds of the
Overcollateralized Group remaining after making distributions to the
Senior Certificates of the Overcollateralized Group on such Distribution
Date pursuant to Section 4.02, until the Class Certificate Balance of
the Senior Certificates of such Undercollateralized Group equals the
aggregate Stated Principal Balance of the related Collateral Allocation
Group.
The principal portion of transfer payment received by the
Undercollateralized Group is referred to as a "Transfer Payment Received." The
principal portion of transfer payment made by the Overcollateralized Group is
referred to as a "Transfer Payment Made."
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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 a Collateral Allocation Group and any
Distribution Date shall be allocated as follows:
(i) the related Applicable Fraction of any Realized Loss, including
any Excess Loss, on a Discount Mortgage Loan shall be allocated to the
Class PO Certificates until its Class Certificate Balance is reduced to
zero; and
(ii) (A) the related Applicable Fraction for a Collateral Allocation
Group (other than Collateral Allocation Group PO) of any Realized Loss
(other than any Excess Loss) on the Mortgage Loans in that Collateral
Allocation Group shall be allocated first to the Subordinated Certificates
in reverse order of their respective numerical Class designations
(beginning with the Class of Subordinated Certificates then outstanding
with the highest numerical Class designation) until the respective Class
Certificate Balance of each such Class is reduced to zero, and second to
the Classes of Senior Certificates in the related Senior Certificate Group
(other than any Notional Amount Certificates), pro rata on the basis of
their respective Class Certificate Balances, in each case immediately
prior to the related Distribution Date, until the respective Class
Certificate Balance of each such Class is reduced to zero;
(B) the related Applicable Fraction for a Collateral Allocation
Group (other than Collateral Allocation Group PO) of any Excess Losses on
the Mortgage Loans in that Collateral Allocation Group shall be allocated
among the Classes of Senior Certificates of the related Senior Certificate
Group (other than the Notional Amount Certificates) and the Subordinated
Certificates as follows: (i) in the case of the Senior Certificates, the
Senior Percentage of such Excess Losses shall be allocated among the
Classes of Senior Certificates in the related Senior Certificate Group,
pro rata, on the basis of their respective Class Certificate Balances
immediately prior to the related Distribution Date and (ii) in the case of
the Subordinated Certificates, the Subordinated Percentage of such Excess
Loss shall be allocated among the Classes of Subordinated Certificates,
pro rata, based on each Class' share of the Assumed Balance of the related
Collateral Allocation Group immediately prior to the related Distribution
Date; provided, however, on any Distribution Date after a Senior
Termination Date, such Excess Losses shall be allocated to the related
Senior Certificates and the Subordinated Certificates on the basis of
their respective Class Certificate Balances immediately prior to such
Distribution Date; provided further, however, on any Distribution Date on
and after the Senior Credit Support Depletion Date, any Excess Loss shall
be allocated, pro rata, among the Classes of Senior Certificates (other
than the Notional Amount Certificates) based on their respective Class
Certificate Balances immediately prior to the related Distribution Date.
(b) The Class Certificate Balance of the Class of Subordinated
Certificates then outstanding with the highest numerical Class designation
shall be reduced on each Distribution Date by the 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 Distribution Date)
exceeds the aggregate Stated Principal Balance of the Mortgage Loans for
the following Distribution Date.
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(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
as of the beginning and end of the related Due Period;
(vii) the amount of the distribution allocable to principal,
separately identifying the aggregate amount of any Principal Prepayments
and Liquidation Proceeds included therein;
(viii) the amount of the distribution allocable to interest, any
Class Unpaid Interest Amounts included in the distribution and any
remaining Class Unpaid Interest Amounts after giving effect to the
distribution;
(ix) if the distribution to the Holders of any Class of
Certificates is less than the full amount that would be distributable to
them if sufficient funds were available, the amount of the shortfall and
the allocation of the shortfall between principal and interest;
(x) the aggregate amount of Realized Losses incurred and
Subsequent Recoveries, if any, received during the preceding calendar
month and aggregate Realized Losses through the Distribution Date;
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(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;
(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;
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(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) each Senior Prepayment Percentage and Subordinated
Prepayment Percentage for the Distribution Date;
(xxvi) each 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) [reserved];
(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 2.03.
By each Determination Date, the Servicer shall provide the Trustee in
electronic form 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.
(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.
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(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 [Reserved].
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:
(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
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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 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 executed by the holder of a Certificate or his attorney duly
authorized in writing shall accompany every Certificate presented or surrendered
for registration of transfer or exchange.
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No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or exchange
shall be cancelled and subsequently destroyed by the Trustee in accordance with
the Trustee's customary procedures.
(b) No transfer of a Private Certificate shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from
the registration requirements under the Securities Act and such state
securities laws. If a transfer is to be made in reliance on an exemption
from the Securities Act and such state securities laws, to assure
compliance with the Securities Act and such state securities laws, the
Certificateholder desiring to effect such transfer and such
Certificateholder's prospective transferee shall each certify to the
Trustee in writing the facts surrounding the transfer in substantially the
form set forth in Exhibit J (the "Transferor Certificate") and deliver to
the Trustee either (i) a letter in substantially the form of either Exhibit
K (the "Investment Letter") or Exhibit L (the "Rule 144A Letter") or (ii)
at the expense of the transferor, an Opinion of Counsel that the transfer
may be made without registration under the Securities Act. The Depositor
shall provide to any Holder of a Private Certificate and any prospective
transferee designated by that Holder, information regarding the related
Certificates and the Mortgage Loans and any other information necessary to
satisfy the condition to eligibility in Rule 144A(d)(4) for transfer of the
Certificate without registration thereof under the Securities Act pursuant
to the registration exemption provided by Rule 144A. The Trustee and the
Servicer shall cooperate with the Depositor in providing the Rule 144A
information referenced in the preceding sentence, including providing to
the Depositor such information regarding the Certificates, the Mortgage
Loans, and other matters regarding the Trust Fund as the Depositor
reasonably requests to meet its obligation under the preceding sentence.
Each Holder of a Private Certificate desiring to effect a transfer shall,
and does hereby agree to, indemnify the Trustee, the Depositor, the Seller,
and the Servicer against any liability that may result if the transfer is
not so exempt or is not made in accordance with such federal and state
laws.
No transfer of an ERISA-Restricted Certificate shall be made unless the
Trustee shall have received either (i) a representation from the transferee of
such Certificate acceptable to and in form and substance satisfactory to the
Trustee (if the Certificate is a Private Certificate, the requirement is
satisfied only by the Trustee's receipt of a representation letter from the
transferee substantially in the form of Exhibit K or Exhibit L, and if the
Certificate is a Residual Certificate, the requirement is satisfied only by the
Trustee's receipt of a representation letter from the transferee substantially
in the form of Exhibit I), to the effect that (x) the transferee is not an
employee benefit plan or arrangement subject to section 406 of ERISA or a plan
subject to section 4975 of the Code, or a person acting on behalf of any such
plan or arrangement or using the assets of any such plan or arrangement to
effect the transfer (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 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
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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.
To the extent permitted under applicable law (including ERISA), the
Trustee shall be under no liability to any Person for any registration of
transfer of any ERISA-Restricted Certificate that is in fact not permitted by
this Section 5.02(b) or for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such Holder under this
Agreement so long as the transfer was registered by the Trustee in accordance
with the foregoing requirements.
(c) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following
provisions, and the rights of each Person acquiring any Ownership Interest
in a Residual Certificate are expressly subject to the following
provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee.
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the
Trustee shall not register the Transfer of any Residual Certificate
unless, in addition to the certificates required to be delivered to the
Trustee under subparagraph (b) above, the Trustee shall have been
furnished with an affidavit (a "Transfer Affidavit") of the initial
owner or the proposed transferee in the form of Exhibit I.
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Residual Certificate, (B) to obtain a Transfer Affidavit
from any Person for whom such Person is acting as nominee, trustee or
agent in connection with any Transfer of a Residual Certificate and (C)
not to Transfer its Ownership Interest in a Residual Certificate or to
cause the Transfer of an Ownership Interest in a Residual Certificate to
any other Person if it has actual knowledge that such Person is not a
Permitted Transferee.
(iv) Any attempted or purported Transfer of any Ownership Interest
in a Residual Certificate in violation of this Section 5.02(c) shall be
absolutely null and void and shall vest no rights in the purported
Transferee. If any purported transferee shall become a Holder of a
Residual Certificate in violation of this Section 5.02(c), then the last
preceding Permitted Transferee shall be restored to all rights as Holder
thereof retroactive to the date of registration of Transfer of such
Residual Certificate. The Trustee shall be under no liability to any
Person for any registration of Transfer of a Residual Certificate that
is in fact not permitted by Section 5.02(b) and this Section 5.02(c) or
for making any payments due on such Certificate to the Holder thereof or
taking any other action with respect to such Holder under this Agreement
so long as the Transfer was registered after receipt of the related
Transfer Affidavit, Transferor Certificate and
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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 by applicable rules established by the Depository; (iv) the
Depository may collect its usual and customary fees, charges and expenses
from its Depository Participants; (v) the Trustee shall deal with the
Depository, Depository Participants and Indirect Participants as
representatives of the Certificate Owners of the Book-Entry Certificates
for purposes of exercising the rights of holders under this Agreement, and
requests and directions for and votes of such representatives shall not be
deemed to be inconsistent if they are made with respect to different
Certificate Owners; and (vi) the Trustee may rely and shall be fully
protected in relying upon information furnished by the Depository with
respect to its Depository Participants and furnished by the Depository
Participants with respect to Indirect Participants and persons shown on the
books of such Indirect Participants as direct or indirect Certificate
Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository Participant
or brokerage firm representing the Certificate Owner. Each Depository
Participant shall only transfer Book-Entry Certificates of Certificate Owners it
represents or of brokerage firms for which it acts as agent in accordance with
the Depository's normal procedures.
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If (x) (i) the Depository or the Depositor advises the Trustee in writing
that the Depository is no longer willing or able to properly discharge its
responsibilities as Depository, and (ii) the Trustee or the Depositor is unable
to locate a qualified successor or (y) after the occurrence of an Event of
Default, Certificate Owners representing at least 51% of the Certificate Balance
of the Book-Entry Certificates together advise the Trustee and the Depository
through the Depository Participants in writing that the continuation of a
book-entry system through the Depository is no longer in the best interests of
the Certificate Owners, the Trustee shall notify all Certificate Owners, through
the Depository, of the occurrence of any such event and of the availability of
definitive, fully-registered Certificates (the "Definitive Certificates") to
Certificate Owners requesting the same. Upon surrender to the Trustee of the
related Class of Certificates by the Depository, accompanied by the instructions
from the Depository for registration, the Trustee shall issue the Definitive
Certificates. Neither the Servicer, the Depositor nor the Trustee shall be
liable for any delay in delivery of such instruction and each may conclusively
rely on, and shall be protected in relying on, such instructions. The Servicer
shall provide the Trustee with an adequate inventory of certificates to
facilitate the issuance and transfer of Definitive Certificates. Upon the
issuance of Definitive Certificates all references herein to obligations imposed
upon or to be performed by the Depository shall be deemed to be imposed upon and
performed by the Trustee, to the extent applicable with respect to such
Definitive Certificates and the Trustee shall recognize the Holders of the
Definitive Certificates as Certificateholders hereunder; provided that the
Trustee shall not by virtue of its assumption of such obligations become liable
to any party for any act or failure to act of the Depository.
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Trustee, or (b) the
Trustee receives evidence to its satisfaction of the destruction, loss, or theft
of any Certificate and the Servicer and the Trustee receive the security or
indemnity required by them to hold each of them harmless, then, in the absence
of notice to the Trustee that the Certificate has been acquired by a Protected
Purchaser, and if the requirements of Section 8-406 of the UCC are met and
subject to Section 8-405 of the UCC, the Trustee shall execute, countersign, and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost, or
stolen Certificate, a new Certificate of like Class, tenor, and Percentage
Interest. In connection with the issuance of any new Certificate under this
Section 5.03, the Trustee may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Trustee) connected
therewith. Any replacement Certificate issued pursuant to this Section 5.03
shall constitute complete and indefeasible evidence of ownership, as if
originally issued, whether or not the lost, stolen, or destroyed Certificate is
found at any time.
Section 5.04 Persons Deemed Owners.
The Servicer, the Trustee, and any agent of the Servicer or the Trustee
may treat the Person in whose name any Certificate is registered as the owner of
such Certificate for the purpose of receiving distributions as provided in this
Agreement and for all other purposes whatsoever, and neither the Servicer, the
Trustee nor any agent of the Servicer or the Trustee shall be affected by any
notice to the contrary.
Section 5.05 Access to List of Certificateholders' Names and Addresses.
If three or more Certificateholders and/or Certificate Owners (a) request
such information in writing from the Trustee, (b) state that such
Certificateholders and/or Certificate Owners desire to communicate with other
Certificateholders and/or Certificate Owners with respect to their rights under
this Agreement or under the Certificates, and (c) provide a copy of the
communication which such
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Certificateholders and/or Certificate Owners propose to transmit, or if the
Depositor or Servicer shall request such information in writing from the
Trustee, then the Trustee shall, within ten Business Days after the receipt of
such request, provide the Depositor, the Servicer or such Certificateholders
and/or Certificate Owners at such recipients' expense the most recent list of
the Certificateholders of such Trust Fund held by the Trustee. The Depositor
and every Certificateholder and/or Certificate Owner, by receiving and holding
a Certificate, agree that the Trustee shall not be held accountable because of
the disclosure of any such information as to the list of the
Certificateholders hereunder, regardless of the source from which such
information was derived.
Section 5.06 Maintenance of Office or Agency.
The 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 in the
Mortgage Loans and the proceeds thereof, other than its rights as a
Certificateholder hereunder. In addition, if during the period that the
Depositor is required to file Exchange Act Reports with respect to the Trust
Fund, the Servicer shall fail to observe or perform any of the obligations that
constitute a
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Limited Exchange Act Reporting Obligation or the obligations set forth in
Section 3.17(a) or Section 11.07(a)(i) and (ii), and such failure continues
for the lesser of 10 calendar days or such period in which the applicable
Exchange Act Report can be filed timely (without taking into account any
extensions), so long as such failure shall not have been remedied, the Trustee
shall, but only at the direction of the Depositor, terminate all of the rights
and obligations of the Servicer under this Agreement and in and to the
Mortgage Loans and the proceeds thereof, other than its rights as a
Certificateholder hereunder. The Depositor shall not be entitled to terminate
the rights and obligations of the Servicer if a failure of the Servicer to
identify a Subcontractor "participating in the servicing function" within the
meaning of Item 1122 of Regulation AB was attributable solely to the role or
functions of such Subcontractor with respect to mortgage loans other than the
Mortgage Loans.
On and after the receipt by the Servicer of such written notice, all
authority and power of the Servicer hereunder, whether with respect to the
Mortgage Loans or otherwise, shall pass to and be vested in the Trustee. The
Trustee shall make any Advance that the Servicer failed to make subject to
Section 3.05, whether or not the obligations of the Servicer have been
terminated pursuant to this Section. The Trustee is hereby authorized and
empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact
or otherwise, any documents and other instruments, and to do or accomplish all
other acts or things necessary or appropriate to effect the purposes of such
notice of termination, whether to complete the transfer and endorsement or
assignment of the Mortgage Loans and related documents, or otherwise. Unless
expressly provided in such written notice, no such termination shall affect any
obligation of the Servicer to pay amounts owed pursuant to Article Eight. The
Servicer agrees to cooperate with the Trustee in effecting the termination of
the Servicer's responsibilities and rights hereunder, including the transfer to
the Trustee of all cash amounts which shall at the time be credited to the
Certificate Account, or thereafter be received with respect to the Mortgage
Loans. If the Servicer fails to make any Advance required under Section 4.01 of
this Agreement, thereby triggering an Event of Default described in clause (f)
of this Section 7.01, the Trustee shall make such Advance on that Distribution
Date.
Notwithstanding any termination of the activities of the Servicer under
this Agreement, the Servicer shall be entitled to receive, out of any late
collection of a Scheduled Payment on a Mortgage Loan which was due before the
notice terminating such Servicer's rights and obligations as Servicer hereunder
and received after such notice, that portion thereof to which such Servicer
would have been entitled pursuant to Sections 3.09(a)(i) through (viii), and any
other amounts payable to such Servicer hereunder the entitlement to which arose
before the termination of its activities hereunder.
If the Servicer is terminated, the Trustee shall provide the Depositor in
writing and in form and substance reasonably satisfactory to the Depositor, all
information reasonably requested by the Depositor in order to comply with its
reporting obligation under Item 6.02 of Form 8-K with respect to a successor
servicer in the event the Trustee should succeed to the duties of the Servicer
as set forth herein.
Section 7.02 Trustee to Act; Appointment of Successor.
On and after the time the Servicer receives a notice of termination
pursuant to Section 7.01, the Trustee shall, subject to and to the extent
provided in Section 3.05, be the successor to the Servicer in its capacity as
Servicer under this Agreement and the transactions set forth or provided for
herein and shall be subject to all the responsibilities, duties and liabilities
relating thereto placed on the Servicer by the terms hereof and applicable law
including the obligation to make Advances pursuant to Section 4.01. As
compensation therefor, the Trustee shall be entitled to all funds relating to
the Mortgage Loans that the Servicer would have been entitled to charge to the
Certificate Account or Distribution Account if the Servicer had continued to act
hereunder, including, if the Servicer was receiving the Servicing Fee, the
Servicing Fee. Notwithstanding the foregoing, if the Trustee has become the
successor to the Servicer in
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accordance with Section 7.01, the Trustee may, if it shall be unwilling to so
act, or shall, if it is prohibited by applicable law from making Advances
pursuant to Section 4.01 or if it is otherwise unable to so act, appoint, or
petition a court of competent jurisdiction to appoint, any established
mortgage loan servicing institution the appointment of which does not
adversely affect the then current rating of the Certificates by each Rating
Agency, as the successor to the Servicer hereunder in the assumption of all or
any part of the responsibilities, duties or liabilities of the Servicer
hereunder. Any successor to the Servicer shall be an institution which is a
FNMA and FHLMC approved seller/servicer in good standing, which has a net
worth of at least $15,000,000, which is willing to service the Mortgage Loans
and which executes and delivers to the Depositor and the Trustee an agreement
accepting such delegation and assignment, containing an assumption by such
Person of the rights, powers, duties, responsibilities, obligations and
liabilities of the Servicer (other than liabilities of the Servicer under
Section 6.03 incurred before termination of the Servicer under Section 7.01),
with like effect as if originally named as a party to this Agreement; provided
that each Rating Agency acknowledges that its rating of the Certificates in
effect immediately before such assignment and delegation will not be qualified
or reduced as a result of such assignment and delegation. Pending appointment
of a successor to the Servicer hereunder, the Trustee shall act in such
capacity as provided above, subject to section 3.03 and unless prohibited by
law. In connection with such appointment and assumption, the Trustee may make
such arrangements for the compensation of such successor out of payments on
Mortgage Loans as it and such successor shall agree; provided, however, that
in no case shall the rate of such compensation exceed the Servicing Fee Rate.
The Trustee and such successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession. Neither
the Trustee nor any other successor servicer shall be deemed to be in default
hereunder because of any failure to make, or any delay in making, any
distribution hereunder or any portion thereof or any failure to perform, or
any delay in performing, any duties or responsibilities hereunder, in either
case caused by the failure of the Servicer to deliver or provide, or any delay
in delivering or providing, any cash, information, documents or records to it.
In connection with the termination or resignation of the Servicer
hereunder, either (i) the successor Servicer, including the Trustee if the
Trustee is acting as successor Servicer, shall represent and warrant that it is
a member of MERS in good standing and shall agree to comply in all material
respects with the rules and procedures of MERS in connection with the servicing
of the Mortgage Loans that are registered with MERS, or (ii) the predecessor
Servicer shall cooperate with the successor Servicer either (x) in causing MERS
to execute and deliver an assignment of Mortgage in recordable form to transfer
the Mortgage from MERS to the Trustee and to execute and deliver such other
notices, documents and other instruments as may be necessary or desirable to
effect a transfer of such Mortgage Loan or servicing of such Mortgage Loan on
the MERS(R) System to the successor Servicer or (y) in causing MERS to designate
on the MERS(R) System the successor Servicer as the servicer of such Mortgage
Loan. The predecessor Servicer shall file or cause to be filed any such
assignment in the appropriate recording office. The successor Servicer shall
cause such assignment to be delivered to the Trustee promptly upon receipt of
the original with evidence of recording thereon or a copy certified by the
public recording office in which such assignment was recorded.
Any successor to the Servicer as servicer shall give notice to the
Mortgagors of such change of servicer and shall, during the term of its service
as servicer, maintain in force the policy or policies that the Servicer is
required to maintain pursuant to this Agreement.
Section 7.03 Notification to Certificateholders.
(a) Upon any termination of or appointment of a successor to the
Servicer, the Trustee shall give prompt written notice thereof to
Certificateholders and to each Rating Agency.
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(b) Within 60 days after the occurrence of any Event of Default, the
Trustee shall transmit by mail to all Certificateholders and each Rating
Agency notice of each such Event of Default hereunder known to the Trustee,
unless such Event of Default shall have been cured or waived.
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ARTICLE EIGHT
CONCERNING THE TRUSTEE
Section 8.01 Duties of the Trustee.
The Trustee, before the occurrence of an Event of Default and after the
curing of all Events of Default that may have occurred, shall undertake to
perform such duties and only such duties as are specifically set forth in this
Agreement. In case an Event of Default has occurred and remains uncured, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee that are specifically required to be furnished pursuant to any provision
of this Agreement shall examine them to determine whether they are in the form
required by this Agreement. The Trustee shall not be responsible for the
accuracy or content of any such resolution, certificate, statement, opinion,
report, document, order, or other instrument.
No provision of this Agreement shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act or
its own willful misconduct; provided, however, that, unless an Event of Default
known to the Trustee has occurred and is continuing,
(a) the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Agreement, the Trustee shall not
be liable except for the performance of the duties and obligations
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee, and the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Agreement which it believed in good faith to be genuine and to have
been duly executed by the proper authorities respecting any matters arising
hereunder;
(b) the Trustee shall not be liable for an error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it is finally proven that the Trustee was negligent in ascertaining
the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken, suffered, or omitted to be taken by it in good faith in accordance
with the direction of Holders of Certificates evidencing not less than 25%
of the Voting Rights of Certificates relating to the time, method, and
place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee under this
Agreement. As long as any Voting Rights are held by parties other than the
Seller, its Affiliates, or its agents, 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 Permitted Investments and
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(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 or
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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 Eleven 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
conferred or imposed upon
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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 Eight. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to the
Servicer and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 8.11 Tax Matters.
It is intended that the assets with respect to which one or more REMIC
elections pertaining to the Trust Fund is to be made, as set forth in the
Preliminary Statement, shall constitute, and that the conduct of matters
relating to such assets shall be such as to qualify such assets as, a "real
estate mortgage investment conduit" as defined in and in accordance with the
REMIC Provisions. In furtherance of such intention, the Trustee covenants and
agrees that it shall act as agent (and the Trustee is hereby appointed to act as
agent) on behalf of each REMIC created under this Agreement and that in such
capacity it shall:
(a) prepare and file in a timely manner, a U.S. Real Estate Mortgage
Investment Conduit Income Tax Return (Form 1066 or any successor form
adopted by the Internal Revenue Service) with respect to each REMIC created
hereunder and prepare and file with the Internal Revenue Service and
applicable state or local tax authorities income tax or information returns
for each taxable year with respect to each REMIC described in the
Preliminary Statement, containing such information and at the times and in
the manner as may be required by the Code or state or local tax laws,
regulations, or
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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
(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
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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).
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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.
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
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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 thereof shall be given effect for
the purpose of calculating any such aggregation of Percentage Interests), or
(iii) reduce the aforesaid percentages of Certificates the Holders of
which are required to consent to any such amendment, without the consent of the
Holders of all such Certificates then outstanding.
Notwithstanding any contrary provision of this Agreement, the Trustee
shall not consent to any amendment to this Agreement unless (i) it shall have
first received an Opinion of Counsel, which opinion shall not be an expense of
the Trustee or the Trust Fund, to the effect that such amendment will not cause
the imposition of any tax on any REMIC created under this Agreement or the
Certificateholders or cause any REMIC created hereunder to fail to qualify as a
REMIC at any time that any Certificates are outstanding and (ii) because the
Trust Fund is required to be a Qualifying Special Purpose Entity (as that term
is defined in Statement of Financial Accounting Standards No. 140 ("SFAS 140"),
in order for the Seller to continue to account for the transfer of the Mortgage
Loans under this Agreement as a sale under SFAS 140, prior to the parties hereto
entering into such an amendment, the Trustee shall receive an Officer's
Certificate, which shall not be an expense of the Trustee or the Trust Fund, to
the effect that such amendment would not "significantly change" (within the
meaning of SFAS 140) the permitted activities of the Trust Fund so as to cause
the Trust Fund to fail to qualify as a Qualifying Special Purpose Entity.
Promptly after the execution of any amendment to this Agreement requiring
the consent of Certificateholders, the Trustee shall furnish written
notification of the substance or a copy of such amendment to each
Certificateholder and each Rating Agency.
It shall not be necessary for the consent of Certificateholders under this
Section 10.01 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee to enter into an
amendment without receiving an Opinion of Counsel (which Opinion shall not be an
expense of the Trustee or the Trust Fund), satisfactory to the Trustee that (i)
such amendment is permitted and is not prohibited by this Agreement and that all
requirements for amending this Agreement have been complied with; and (ii)
either (A) the amendment does not adversely affect in any material respect the
interests of any Certificateholder or (B) the conclusion set forth in the
preceding clause (A) is not required to be reached pursuant to this Section
10.01.
Section 10.02 Recordation of Agreement; Counterparts.
This Agreement is subject to recordation in all appropriate public offices
for real property records in all the counties or other comparable jurisdictions
in which any or all of the properties subject to the Mortgages are situated, and
in any other appropriate public recording office or elsewhere, such recordation
to be effected by the Servicer at its expense, but only upon receipt of an
Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders.
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For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 10.03 Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO
BE PERFORMED IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
Section 10.04 Intention of Parties.
It is the express intent of the parties hereto that the conveyance (i) of
the Mortgage Loans by the Seller to the Depositor and (ii) of the Trust Fund by
the Depositor to the Trustee each be, and be construed as, an absolute sale
thereof. It is, further, not the intention of the parties that such conveyances
be deemed a pledge thereof. However, if, notwithstanding the intent of the
parties, the assets are held to be the property of the Seller or Depositor, as
the case may be, or if for any other reason this Agreement is held or deemed to
create a security interest in either such assets, then (i) this Agreement shall
be deemed to be a security agreement within the meaning of the UCC and (ii) the
conveyances provided for in this Agreement shall be deemed to be an assignment
and a grant (i) by the Seller to the Depositor or (ii) by the Depositor to the
Trustee, for the benefit of the Certificateholders, of a security interest in
all of the assets transferred, whether now owned or hereafter acquired.
The Seller and the Depositor for the benefit of the Certificateholders
shall, to the extent consistent with this Agreement, take such actions as may be
necessary to ensure that, if this Agreement were deemed to create a security
interest in the Trust Fund, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and will be
maintained as such throughout the term of the Agreement. The Depositor shall
arrange for filing any Uniform Commercial Code continuation statements in
connection with any security interest granted or assigned to the Trustee for the
benefit of the Certificateholders.
Section 10.05 Notices.
(a) The Trustee shall use its best efforts to promptly provide
notice to each Rating Agency with respect to each of the following of which
it has actual knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Event of Default that has not been cured;
3. The resignation or termination of the Servicer or the Trustee and the
appointment of any successor;
4. The repurchase or substitution of Mortgage Loans pursuant to Section
2.03; and
5. The final distribution to Certificateholders.
In addition, the Trustee shall promptly furnish to each Rating Agency
copies of the following:
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1. Each report to Certificateholders described in Section 4.06;
2. Each annual statement as to compliance described in Section 3.17;
3. Each annual independent public accountants' servicing report described
in Section 11.07; and
4. Any notice of a purchase of a Mortgage Loan pursuant to Section 2.02,
2.03 or 3.11.
(b) All directions, demands and notices hereunder shall be in
writing and shall be deemed to have been duly given when delivered to (a)
in the case of the Depositor, IndyMac MBS, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Secondary Marketing, Transaction
Management; (b) in the case of the Servicer, IndyMac Bank, F.S.B., ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Secondary
Marketing, Transaction Management or such other address as may be hereafter
furnished to the Depositor and the Trustee by the Servicer in writing; (c)
in the case of the Trustee to the Corporate Trust Office, Deutsche Bank
National Trust Company, ▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: Trust Administration IN0703, Series 2007-C, 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 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
108
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 certification provided by the Trustee in the form of Exhibit
O-2, or in the assessment of compliance or
109
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 advice or guidance in respect
of the requirements of Regulation AB, (c) the parties shall comply with
110
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 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.
111
(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).
Section 11.08 Use of Subcontractors.
(a) [Reserved].
112
(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 Eleven, this Agreement shall be amended to
reflect the new agreement between the parties covering matters in this Article
Eleven 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 Eleven 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.
* * * * * *
113
IN WITNESS WHEREOF, the Depositor, the Trustee, and the Seller and
Servicer have caused their names to be signed hereto by their respective
officers thereunto duly authorized as of the day and year first above written.
INDYMAC MBS, INC.
as Depositor
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Associate
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
INDYMAC BANK, F.S.B.
as Seller and Servicer
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
STATE OF CALIFORNIA )
: ss.:
COUNTY OF Los Angeles )
On this 27th day of February, 2007, before me, personally appeared ▇▇▇▇
▇▇▇▇▇▇▇▇, known to me to be a Vice President of IndyMac MBS, Inc., one of the
entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of said entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------
Notary Public
[NOTARIAL SEAL]
1
STATE OF CALIFORNIA )
: ss.:
COUNTY OF Orange )
On this 26th day of February, 2007, before me, personally appeared ▇▇▇▇▇▇
▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, known to me to be an Associate and a Vice President,
respectively, of Deutsche Bank National Trust Company, one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Notary Public
[NOTARIAL SEAL]
2
STATE OF CALIFORNIA )
: ss.:
COUNTY OF Los Angeles )
On this 27th day of February, 2007, before me, personally appeared ▇▇▇▇
▇▇▇▇▇▇▇▇, known to me to be a Vice President of IndyMac Bank, F.S.B., one of the
entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of said entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------
Notary Public
[NOTARIAL SEAL]
3
Schedule I
MORTGAGE LOAN SCHEDULE [DELIVERED AT CLOSING TO TRUSTEE]
S-I-1
Schedule II
INDYMAC MBS, INC. MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-C
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-C
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
of not less than five years in excess of the term of the related Mortgage
Loan.
(25) Each Mortgage Loan was selected from among the outstanding
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) Mortgage Loans comprising approximately 0.05% of the Collateral
Allocation Group 1 and 0.14% of the Collateral Allocation Group 2 by
aggregate principal balance as of the Cut-off Date are Cooperative Loans.
(27) The aggregate Stated Principal Balances of the Discount
Mortgage Loans does not exceed $819,861.
(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 latest version of Standard &
Poor's LEVELS(R) Glossary, 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-I
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.]
A-1
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Certificate
Balance of this
Certificate
("Denomination") : $
Initial Certificate
Balances of all
Certificates of this
Class : $
CUSIP :
Interest Rate : %
Maturity Date :
INDYMAC MBS, INC.
Residential Asset Securitization Trust 2007-A3
Mortgage Pass-Through Certificates, Series 2007-C
Class [__]
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced Class with
respect to a Trust Fund consisting primarily of a pool of
conventional mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties.
IndyMac MBS, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein or in the Agreement (defined below). Accordingly, the Certificate
Balance at any time may be less than the Certificate Balance as set forth
herein. This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Seller, the Servicer or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
This certifies that ______________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate Initial Certificate Balances
of all Certificates of the Class to which this Certificate belongs) in certain
monthly distributions with respect to a Trust Fund consisting primarily of the
Mortgage Loans deposited by IndyMac MBS, Inc. (the "Depositor"). The Trust
Fund was created pursuant to a Pooling and Servicing Agreement dated as of the
Cut-off Date specified above (the "Agreement") among the Depositor, IndyMac
Bank, F.S.B., as seller (in such capacity, the "Seller") and as servicer (in
such capacity, the "Servicer"), and Deutsche Bank National Trust Company, as
trustee (the "Trustee"). To the extent not defined herein, the capitalized
terms used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
A-2
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-A3
Mortgage Pass-Through Certificates, Series 2007-C
Class [___]
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced Class with
respect to a Trust Fund consisting primarily of a pool of
conventional mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties.
IndyMac MBS, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as set forth
herein or in the Agreement (defined below). Accordingly, the Certificate Balance
at any time may be less than the Certificate Balance as set forth herein. This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Seller, the Servicer or the Trustee referred to
below or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
This certifies that_____________is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination
of this Certificate by the aggregate Initial Certificate Balances of the
denominations of all Certificates of the Class to which this Certificate
belongs) in certain monthly distributions with respect to a Trust Fund
consisting primarily of the Mortgage Loans deposited by IndyMac MBS, Inc. (the
"Depositor"). The Trust Fund was created pursuant to a Pooling and Servicing
Agreement dated as of the Cut-off Date specified above (the "Agreement") among
the Depositor, IndyMac Bank, F.S.B., as seller (in such capacity, the
"Seller"), and as servicer (in such capacity, the "Servicer"), and Deutsche
Bank National Trust Company, as trustee (the "Trustee"). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned
in the Agreement. This Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
[No transfer of a Certificate of this Class shall be made unless such transfer
is made pursuant to an effective registration statement under the Securities Act
and any applicable state securities laws or is
B-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 Certificate with
funds contained in an "insurance company general account" (as such term is
defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE
95-60")) and that the purchase and holding of such Certificate are covered under
Sections I and III of PTCE 95-60 or (iii) in the case of any such Certificate
presented for registration in the name of an employee benefit plan subject to
ERISA or Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee of any such plan or any other person acting on behalf
of any such plan, an Opinion of Counsel satisfactory to the Trustee to the
effect that the purchase and 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-4
EXHIBIT C
[FORM OF CLASS A-R CERTIFICATE]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS
THE PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
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-A3
Mortgage Pass-Through Certificates, Series 2007-C
evidencing the distributions allocable to the Class A-R
Certificates with respect to a Trust Fund consisting primarily of a
pool of conventional mortgage loans (the "Mortgage Loans") secured
by first liens on one- to four-family residential properties.
IndyMac MBS, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as set forth
herein or in the Agreement (defined below). Accordingly, the Certificate Balance
at any time may be less than the Certificate Balance as set forth herein. This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Seller, the Servicer or the Trustee referred to
below or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
This certifies that_________________is the registered owner of the Percentage
Interest (obtained by dividing the denomination of this Certificate by the
aggregate Initial Certificate Balances of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain
monthly distributions with respect to a Trust Fund consisting of the Mortgage
Loans deposited by IndyMac MBS, Inc. (the "Depositor"). The Trust Fund was
created pursuant to a Pooling and Servicing Agreement dated as of the Cut-off
Date specified above (the "Agreement") among the Depositor, IndyMac Bank,
F.S.B., as seller (in such capacity, the "Seller") and as servicer (in such
capacity, the "Servicer"), and Deutsche Bank National Trust Company, as
trustee (the "Trustee"). To the extent not defined herein, the capitalized
terms used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the Trust Fund will
be made only upon presentment and surrender of this Class A-R Certificate at the
office or agency maintained by the Trustee.
No transfer of a Class A-R Certificate shall be made unless the Trustee shall
have received either (i) a representation letter from the transferee of such
Certificate, acceptable to and in form and substance
C-2
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan subject to Section 406 of ERISA or Section 4975 of the
Code, or a person investing on behalf of or with plan assets of any such plan,
which representation letter shall not be an expense of the Trustee or the
Servicer, (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
Certificate presented for registration in the name of an employee benefit plan
subject to ERISA or Section 4975 of the Code (or comparable provisions of any
subsequent enactments), or a trustee of any such plan or any other person
acting on behalf of any such plan, an Opinion of Counsel satisfactory to the
Trustee to the effect that the purchase and holding of such 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-A3
Mortgage Pass-Through Certificates, Series 2007-C
Class [__]
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced Class with
respect to a Trust Fund consisting primarily of a pool of
conventional mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties.
IndyMac MBS, Inc., as Depositor
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Seller, the Servicer or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
D-2
This certifies that __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination of
this Certificate by the aggregate Initial Notional Amounts of all Certificates
of the Class to which this Certificate belongs) in certain monthly distributions
with respect to a Trust Fund consisting primarily of the Mortgage Loans
deposited by IndyMac MBS, Inc. (the "Depositor"). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date
specified above (the "Agreement") among the Depositor, IndyMac Bank, F.S.B., as
seller (in such capacity, the "Seller") and as servicer (in such capacity, the
"Servicer"), and Deutsche Bank National Trust Company, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
[Until this certificate has been the subject of an ERISA-Qualifying
Underwriting, no transfer of a Certificate of this Class shall be made unless
the Trustee shall have received either (i) a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan subject to Section 406 of ERISA or Section 4975 of the
Code, or a person investing on behalf of or with plan assets of any such plan,
which representation letter shall not be an expense of the Trustee or the
Servicer, or (ii) in the case of any such Certificate presented for registration
in the name of an employee benefit plan subject to ERISA or Section 4975 of the
Code (or comparable provisions of any subsequent enactments), or a trustee of
any such plan or any other person acting on behalf of any such plan, an Opinion
of Counsel satisfactory to the Trustee to the effect that the purchase and
holding of such Certificate will not result in a nonexempt prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code and will not
subject the Trustee or the Servicer to any obligation in addition to those
undertaken in the Agreement, which Opinion of Counsel shall not be an expense of
the Trustee, the Servicer, or the Trust Fund. Notwithstanding anything else to
the contrary herein, until this certificate has been the subject of an
ERISA-Qualifying Underwriting, any purported transfer of a Certificate of this
Class to or on behalf of an employee benefit plan subject to ERISA or to the
Code without the opinion of counsel satisfactory to the Trustee as described
above shall be void and of no effect.]
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
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-A3
Mortgage Pass-Through Certificates, Series 2007-C
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 office or agency maintained by the Trustee, 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]
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-C
------------------------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned, as
Trustee, hereby certifies that, as to each Mortgage Loan listed in the Mortgage
Loan Schedule (other than any Mortgage Loan listed in the attached schedule), it
has received:
(i) the original Mortgage Note, endorsed as provided in the following
form: "Pay to the order of ________, without recourse"; and
(ii) an executed assignment of the Mortgage (which may be included in a
blanket assignment or assignments); provided, however, that it has received no
assignment with respect to any Mortgage for which the Mortgaged Property is
located in the Commonwealth of Puerto Rico.
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and to such Mortgage
Loan.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Trustee makes no representations as to: (i)
the validity, legality, sufficiency, enforceability or genuineness of any of the
documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
G-1-1
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By:_________________________________________
Name:
Title:
G-1-2
EXHIBIT G-2
FORM OF DELAY DELIVERY CERTIFICATION (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-C
------------------------------------------------------------
Gentlemen:
Reference is made to the Initial Certification of Trustee relating to the
above-referenced series, with the schedule of exceptions attached thereto (the
"Schedule A"), delivered by the undersigned, as Trustee, on the Closing Date in
accordance with Section 2.02 of the above-captioned Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"). The undersigned hereby
certifies that, as to each Delay Delivery Mortgage Loan listed on Schedule A
attached hereto (other than any Mortgage Loan paid in full or listed on Schedule
B attached hereto) it has received:
(i) the original Mortgage Note, endorsed by the Seller or the
originator of such Mortgage Loan, without recourse in the
following form: "Pay to the order of _______________ without
recourse", with all intervening endorsements that show a complete
chain of endorsement from the originator to the Seller, or, if
the original Mortgage Note has been lost or destroyed and not
replaced, an original lost note affidavit from the Seller,
stating that the original Mortgage Note was lost or destroyed,
together with a copy of the Mortgage Note;
(ii) the original recorded Mortgage;
(iii) an executed assignment of the Mortgage to "Deutsche Bank National
Trust Company, as trustee under the Pooling and Servicing Agreement
dated as of February 1, 2007, without recourse" (each such
assignment, when duly and validly completed, to be in recordable
form and sufficient to effect the assignment of and transfer to the
assignee thereof, under the Mortgage to which such assignment
relates);
(iv) the original recorded assignment or assignments of the Mortgage
together with all interim recorded assignments of such Mortgage;
(v) the original or copies of each assumption, modification, written
assurance or substitution agreement, if any, with evidence of
recording thereon if recordation thereof is permissible under
applicable law; and
G-2-1
(vi) the original or duplicate original lender's title policy and all
riders, if any, thereto or, in the event such original title policy
has not been received from the insurer, any one of an original title
binder, an original preliminary title report or an original title
commitment, or a copy thereof certified by the title company, with
the original policy of title insurance to be delivered within one
year of the Closing Date.
In the event that in connection with any Mortgage Loan for which the
Seller cannot deliver the original recorded Mortgage or all interim recorded
assignments of the Mortgage satisfying the requirements of clause (ii), (iii) or
(iv), as applicable, the Trustee has received, in lieu thereof, a true and
complete copy of such Mortgage and/or such assignment or assignments of the
Mortgage, as applicable, each certified by the Seller, the applicable title
company, escrow agent or attorney, or the originator of such Mortgage Loan, as
the case may be, to be a true and complete copy of the original Mortgage or
assignment of Mortgage submitted for recording.
Based on its review and examination and only as to the foregoing
documents, (i) such documents appear regular on their face and related to such
Mortgage Loan, and (ii) the information set forth in items (i), (iv), (vi) and
(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-C
-------------------------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned, as
Trustee, hereby certifies that as to each Mortgage Loan listed in the Mortgage
Loan Schedule (other than any Mortgage Loan paid in full or listed on the
attached Document Exception Report) it has received:
(i) The original Mortgage Note, endorsed in the form provided in Section
2.01(c) of the Pooling and Servicing Agreement, with all intervening
endorsements showing a complete chain of endorsement from the originator to the
Seller.
(ii) The original recorded Mortgage.
(iii) An executed assignment of the Mortgage in the form provided in
Section 2.01(c) of the Pooling and Servicing Agreement; provided, however, that
it has received no assignment with respect to any Mortgage for which the
Mortgaged Property is located in the Commonwealth of Puerto Rico, or, if the
Depositor has certified or the Trustee otherwise knows that the Mortgage has not
been returned from the applicable recording office, a copy of the assignment of
the Mortgage (excluding information to be provided by the recording office).
(iv) The original or duplicate original recorded assignment or assignments
of the Mortgage showing a complete chain of assignment from the originator to
the Seller.
(v) The original or duplicate original lender's title policy and all
riders thereto or, any one of an original title binder, an original preliminary
title report or an original title commitment, or a copy thereof certified by the
title company.
Based on its review and examination and only as to the foregoing
documents, (a) such documents appear regular on their face and related to such
Mortgage Loan, and (b) the information set forth in items (i), (ii), (iii),
(iv), (vi) and (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 ▇▇▇▇-▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ )
: ss.:
COUNTY OF _____________ )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of ___________, the proposed Transferee
of an Ownership Interest in a Class A-R Certificate (the "Certificate") issued
pursuant to the Pooling and Servicing Agreement, (the "Agreement"), relating
to the above-referenced Series, by and among IndyMac MBS, Inc., as depositor
(the "Depositor"), IndyMac Bank, F.S.B., as seller and servicer and Deutsche
Bank National Trust Company, as trustee. Capitalized terms used, but not
defined herein or in Exhibit 1 hereto, shall have the meanings ascribed to
such terms in the Agreement. The Transferee has authorized the undersigned to
make this affidavit on behalf of the Transferee.
2. The Transferee is, as of the date hereof, and will be, as of the date
of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate for its own account.
3. The Transferee has been advised of, and understands that (i) a tax will
be imposed on Transfers of the Certificate to Persons that are not Permitted
Transferees; (ii) such tax will be imposed on the transferor, or, if such
Transfer is through an agent (which includes a broker, nominee or middleman) for
a Person that is not a Permitted Transferee, on the agent; and (iii) the Person
otherwise liable for the tax shall be relieved of liability for the tax if the
subsequent Transferee furnished to such Person an affidavit that such subsequent
Transferee is a Permitted Transferee and, at the time of Transfer, such Person
does not have actual knowledge that the affidavit is false.
4. The Transferee has been advised of, and understands that a tax will be
imposed on a "pass-through entity" holding the Certificate if at any time during
the taxable year of the pass-through entity a Person that is not a Permitted
Transferee is the record holder of an interest in such entity. The Transferee
understands that such tax will not be imposed for any period with respect to
which the record holder furnishes to the pass-through entity an affidavit that
such record holder is a Permitted Transferee and the pass-through entity does
not have actual knowledge that such affidavit is false. (For this purpose, a
"pass-through entity" includes a regulated investment company, a real estate
investment trust or common trust fund, a partnership, trust or estate, and
certain cooperatives and, except as may be provided in Treasury Regulations,
persons holding interests in pass-through entities as a nominee for another
Person.)
5. The Transferee has reviewed the provisions of Section 5.02(c) of the
Agreement (attached hereto as Exhibit 2 and incorporated herein by reference)
and understands the legal consequences of the acquisition of an Ownership
Interest in the Certificate including, without limitation, the restrictions on
subsequent Transfers and the provisions regarding voiding the Transfer and
mandatory sales. The Transferee expressly agrees to be bound by and to abide by
the provisions of Section 5.02(c)
I-1
of the Agreement and the restrictions noted on the face of the Certificate.
The Transferee understands and agrees that any breach of any of the
representations included herein shall render the Transfer to the Transferee
contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any Person
to whom the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth as Exhibit J to the Agreement (a "Transferor Certificate") to the
effect that such Transferee has no actual knowledge that the Person to which the
Transfer is to be made is not a Permitted Transferee.
7. The Transferee does not have the intention to impede the assessment or
collection of any tax legally required to be paid with respect to the
Certificate.
8. The Transferee's taxpayer identification number is ______________.
9. The Transferee is a U.S. Person as defined in Code Section 7701(a)(30).
10. The Transferee is aware that the Certificate may be a "noneconomic
residual interest" within the meaning of proposed Treasury regulations
promulgated pursuant to the Code and that the transferor of a noneconomic
residual interest will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the transfer
was to impede the assessment or collection of tax.
11. The Transferee is not a foreign permanent establishment or fixed base
(within the meaning of an applicable income tax treaty) of a U.S. taxpayer.
12. The Transferee will not transfer the Certificates, directly or
indirectly, to a foreign permanent establishment or fixed base (within the
meaning of an applicable income tax treaty) of the Transferee or another U.S.
taxpayer.
13. The Transferee will not cause income from the Certificates to be
attributable to a foreign permanent establishment or fixed base (within the
meaning of an applicable income tax treaty) of the Transferee or another U.S.
taxpayer.
14. Either:
(a) (i) At the time of the transfer, and at the close of each of the
Transferee's two fiscal years preceding the Transferee's fiscal year of
transfer, the Transferee's gross assets for financial reporting purposes
exceed $100 million and its net assets for financial reporting purposes
exceed $10 million. For purposes of the preceding sentence, the gross
assets and net assets of a Transferee do not include any obligation of any
Related Person, as defined below, or any other asset if a principal
purpose for holding or acquiring the other asset is to permit the
Transferee to satisfy the conditions of this paragraph 15(a); (ii) The
Transferee is an Eligible Corporation, as defined below, and hereby agrees
that any subsequent transfer of the interest will be to another Eligible
Corporation in a transaction that satisfies this Transfer Affidavit,
including this paragraph 15(a); and (iii) The Transferee has not given the
Transferor any reason to know that the Transferee will not honor the
restrictions on subsequent transfers of the residual interest or that the
Transferee cannot or will not pay any taxes associated with the residual
interest; or
I-2
(b)(i) The Transferee is a United States Person; (ii) The present
value of the anticipated tax liabilities associated with holding the
residual interest does not exceed the sum of: (A) The present value of any
consideration given to the Transferee to acquire the interest; (B) The
present value of the expected future distributions on the interest; and
(C) The present value of the anticipated tax savings associated with
holding the interest as any REMIC generates losses; and (iii) For purposes
of calculating the aforementioned present values: (A) The transferee has
assumed that it pays tax at a rate equal to the highest rate of tax
specified in Code Section 11(b)(1) (unless the Transferee has been subject
to the alternative minimum tax under Code Section 55 in the preceding two
years and will compute its taxable income in the current taxable year
using the alternative minimum tax rate, in which case the Transferee can
assume that it pays tax at the rate specified in Code Section 55(b)(1)(B)
provided the Transferee states in this Transfer Affidavit that it is using
such alternate rate and that has been subject to the alternative minimum
tax under Code Section 55 in the preceding two years and will compute its
taxable income in the current taxable year using the alternative minimum
tax rate):and (B) The Transferee uses a discount rate equal to the Federal
short-term rate prescribed by section 1274(d) for the month of the
transfer and the compounding period used by the Transferee.
The term "Eligible Corporation" means any domestic C corporation (as
defined in section 1361(a)(2) of the Code) other than a corporation which is
exempt from, or is not subject to, tax under section 11 of the Code, an entity
described in section 851(a) or 856(a) of the Code, a REMIC; or an organization
to which part I, subchapter T, chapter 1, subtitle A of the Code applies. The
Term "Related Person" means any person that bears a relationship to the
Transferee enumerated in section 267(b) or 707(b)(1) of the Code, using "20
percent" instead of "50 percent" where it appears under the provisions; or is
under common control (within the meaning of section 52(a) and (b) of the Code)
with the Transferee.
15. Either (i) the Transferee is not an employee benefit plan that is
subject to ERISA or a plan that is subject to Section 4975 of the Code, and the
Transferee is not acting on behalf of or with plan assets of such a plan; or
(ii) the Transferee is an insurance company that is investing funds contained in
an "insurance company general account" (as such term is defined in Section V(e)
of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60") and the purchase
and holding of the Class A-R Certificate satisfy the requirements for exemptive
relief under Sections I and III of PTCE 95-60.
* * *
I-3
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
duly authorized officer and its corporate seal to be hereunto affixed, duly
attested, this ______ day of __________, 20__.
____________________________________________
Print Name of Transferee
By:_________________________________________
Name:
Title:
[Corporate Seal]
ATTEST:
[Assistant] Secretary
Personally appeared before me the above-named ___________, known or
proved to me to be the same person who executed the foregoing instrument and
to be the of the Transferee, and acknowledged that he executed the same as his
free act and deed and the free act and deed of the Transferee.
Subscribed and sworn before me this _______ day of __________, 20__.
_______________________________
NOTARY PUBLIC
My Commission expires the ______ day
of ___________, 20__.
I-4
EXHIBIT 1
to EXHIBIT I
Certain Definitions
"Ownership Interest": As to any Certificate, any ownership interest in
such Certificate, including any interest in such Certificate as the Holder
thereof and any other interest therein, whether direct or indirect, legal or
beneficial.
"Permitted Transferee": Any Person other than (i) the United States, any
State or political subdivision thereof, or any agency or instrumentality of any
of the foregoing, (ii) a foreign government, International Organization or any
agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in Code Section 521) which is
exempt from tax imposed by Chapter 1 of the Code (including the tax imposed by
Code Section 511 on unrelated business taxable income) on any excess inclusions
(as defined in Code Section 860E(c)(1)) with respect to any Class A-R
Certificate, (iv) rural electric and telephone cooperatives described in Code
Section 1381(a)(2)(c), (v) a Person that is not a citizen or resident of the
United States, a corporation, partnership, or other entity created or organized
in or under the laws of the United States or any political subdivision thereof,
or an estate or trust whose income from sources without the United States is
includible in gross income for federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States, and
(vi) any other Person so designated by the Depositor based upon an Opinion of
Counsel that the Transfer of an Ownership Interest in a Class A-R Certificate to
such Person may cause the Trust Fund to fail to qualify as a REMIC at any time
that certain Certificates are Outstanding. The terms "United States," "State"
and "International Organization" shall have the meanings set forth in Code
Section 7701 or successor provisions. A corporation will not be treated as an
instrumentality of the United States or of any State or political subdivision
thereof if all of its activities are subject to tax, and, with the exception of
the FHLMC, a majority of its board of directors is not selected by such
governmental unit.
"Person": Any individual, corporation, partnership, joint venture, bank,
joint stock company, trust (including any beneficiary thereof), unincorporated
organization or government or any agency or political subdivision thereof.
"Transfer": Any direct or indirect transfer or sale of any Ownership
Interest in a Certificate, including the acquisition of a Certificate by the
Depositor.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
I-5
EXHIBIT 2
to EXHIBIT I
Section 5.02(c) of the Agreement
(c) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall be a Permitted Transferee and shall
promptly notify the Trustee of any change or impending change in its
status as a Permitted Transferee.
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the
Trustee shall not register the Transfer of any Residual Certificate
unless, in addition to the certificates required to be delivered to
the Trustee under subparagraph (b) above, the Trustee shall have
been furnished with an affidavit (a "Transfer Affidavit") of the
initial owner or the proposed transferee in the form attached hereto
as Exhibit I.
(iii) Each Person holding or acquiring any Ownership Interest
in a Residual Certificate shall agree (A) to obtain a Transfer
Affidavit from any other Person to whom such Person attempts to
Transfer its Ownership Interest in a Residual Certificate, (B) to
obtain a Transfer Affidavit from any Person for whom such Person is
acting as nominee, trustee or agent in connection with any Transfer
of a Residual Certificate and (C) not to Transfer its Ownership
Interest in a Residual Certificate or to cause the Transfer of an
Ownership Interest in a Residual Certificate to any other Person if
it has actual knowledge that such Person is not a Permitted
Transferee.
(iv) Any attempted or purported Transfer of any Ownership
Interest in a Residual Certificate in violation of the provisions of
this Section 5.02(c) shall be absolutely null and void and shall
vest no rights in the purported Transferee. If any purported
transferee shall become a Holder of a Residual Certificate in
violation of the provisions of this Section 5.02(c), then the last
preceding Permitted Transferee shall be restored to all rights as
Holder thereof retroactive to the date of registration of Transfer
of such Residual Certificate. The Trustee shall be under no
liability to any Person for any registration of Transfer of a
Residual Certificate that is in fact not permitted by Section
5.02(b) and this Section 5.02(c) or for making any payments due on
such Certificate to the Holder thereof or taking any other action
with respect to such Holder under the provisions of this Agreement
so long as the Transfer was registered after receipt of the Transfer
Affidavit, Transferor Certificate and either the Rule 144A Letter or
the Investment Letter. The Trustee shall be entitled but not
obligated to recover from any Holder of a Residual Certificate that
was in fact not a Permitted Transferee at the time it became a
Holder or, at such subsequent time as it became other than a
Permitted Transferee, all payments made on such Residual Certificate
at and after either such time. Any such payments so recovered by the
Trustee shall be paid and delivered by the Trustee to the last
preceding Permitted Transferee of such Certificate.
I-6
(v) The Depositor shall use its best efforts to make
available, upon receipt of written request from the Trustee, all
information necessary to compute any tax imposed under Section
860E(e) of the Code as a result of a Transfer of an Ownership
Interest in a Residual Certificate to any Holder who is not a
Permitted Transferee.
I-7
EXHIBIT J
FORM OF TRANSFEROR CERTIFICATE
__________, 200__
IndyMac MBS, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Secondary Marketing, Transaction Management
DB Services Tennessee
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Transfer Unit, Series 200-
Re: IndyMac MBS, Inc.
Mortgage Pass-Through Certificates, Series 2007-C, Class
--------------------------------------------------------
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we
certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being disposed
by us in a transaction that is exempt from the registration requirements of the
Act, (b) we have not offered or sold any Certificates to, or solicited offers to
buy any Certificates from, any person, or otherwise approached or negotiated
with any person with respect thereto, in a manner that would be deemed, or taken
any other action which would result in, a violation of Section 5 of the Act and
(c) to the extent we are disposing of a Class A-R Certificate, we have no
knowledge the Transferee is not a Permitted Transferee.
Very truly yours,
______________________________
Print Name of Transferor
By: ___________________________
Authorized Officer
J-1
EXHIBIT K
FORM OF INVESTMENT LETTER (NON-RULE 144A)
__________, 200__
IndyMac MBS, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Secondary Marketing, Transaction Management
DB Services Tennessee
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Transfer Unit, Series 200-
Re: IndyMac MBS, Inc.
Mortgage Pass-Through Certificates, Series 2007-C, 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-1
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
DB Services Tennessee
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Transfer Unit, Series 200-
Re: IndyMac MBS, Inc.
Mortgage Pass-Through Certificates, Series 2007-C, 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:
L-7
EXHIBIT M
REQUEST FOR RELEASE
(for Trustee)
IndyMac MBS, Inc.
Mortgage Pass-Through Certificates
Series 2007-C
Loan Information
Name of Mortgagor:
Servicer
Loan No.: ______________________
Trustee
Name: ______________________
Address: ______________________
______________________
Trustee
Mortgage File No.:
The undersigned Servicer hereby acknowledges that it has received from
Deutsche Bank National Trust Company, as Trustee for the Holders of Mortgage
Pass-Through Certificates, of the above-referenced Series, the documents
referred to below (the "Documents"). All capitalized terms not otherwise defined
in this Request for Release shall have the meanings given them in the Pooling
and Servicing Agreement (the "Pooling and Servicing Agreement") relating to the
above-referenced Series among the Trustee, IndyMac Bank, F.S.B., as Seller and
Servicer and IndyMac MBS, Inc., as Depositor.
( ) Mortgage Note dated ________, 20__, in the original principal sum of
$__________, made by __________. payable to, or endorsed to the
__________ order of, the Trustee.
( ) Mortgage recorded on as instrument no. ________ in the County
Recorder's Office of the County of ____________, State of _________ in
book/reel/docket __________ of official records at page/image __________.
( ) Deed of Trust recorded on as instrument no. ______ in the County
Recorder's Office of the County of ___________, State of _________ in
book/reel/docket __________ of official records at page/image __________.
( ) Assignment of Mortgage or Deed of Trust to the Trustee, recorded on as
instrument no. _______ in the County Recorder's Office of the County of
________, State of __________ in book/reel/docket of official records at
page/image _______________ .
M-1
( ) Other documents, including any amendments, assignments or other
assumptions of the Mortgage Note or Mortgage.
The undersigned Servicer hereby acknowledges and agrees as follows:
(1) The Servicer shall hold and retain possession of the
Documents in trust for the benefit of the Trustee, solely for the
purposes provided in the Agreement.
(2) The Servicer shall not cause or knowingly permit the
Documents to become subject to, or encumbered by, any claim, liens,
security interest, charges, writs of attachment or other impositions
nor shall the Servicer assert or seek to assert any claims or rights
of setoff to or against the Documents or any proceeds thereof.
(3) The Servicer shall return each and every Document
previously requested from the Mortgage File to the Trustee when the
need therefor no longer exists, unless the Mortgage Loan relating to
the Documents has been liquidated and the proceeds thereof have been
remitted to the Certificate Account and except as expressly provided
in the Agreement.
(4) The Documents and any proceeds thereof, including any
proceeds of proceeds, coming into the possession or control of the
Servicer shall at all times be earmarked for the account of the
Trustee, and the Servicer shall keep the Documents and any proceeds
separate and distinct from all other property in the Servicer's
possession, custody or control.
INDYMAC BANK, F.S.B.
By: _________________
Name:
Title:
Date: , 20
M-2
EXHIBIT N
REQUEST FOR RELEASE OF DOCUMENTS
To: Deutsche Bank National Trust Company
Attn: Mortgage Custody Services
Re: The Pooling and Servicing Agreement dated February 1, 2007 among IndyMac
Bank, F.S.B. as Servicer, Inc, IndyMac MBS, Inc. and Deutsche Bank
National Trust Company, as Trustee
Ladies and Gentlemen:
In connection with the administration of the Mortgage Loans held by you as
Trustee for IndyMac MBS, Inc., we request the release of the Mortgage Loan File
for the Mortgage Loan(s) described below, for the reason indicated.
FT Account #: Pool #:
Mortgagor's Name, Address and Zip Code:
Mortgage Loan Number:
Reason for Requesting Documents (check one)
_______1. Mortgage Loan paid in full (IndyMac hereby certifies that all
amounts have been received.)
_______2. Mortgage Loan Liquidated (IndyMac hereby certifies that all
proceeds of foreclosure, insurance, or other liquidation have been
finally received.)
_______3. Mortgage Loan in Foreclosure.
_______4. Other (explain): ____________________________________
If item 1 or 2 above is checked, and if all or part of the Mortgage File
was previously released to us, please release to us our previous receipt on file
with you, as well as an additional documents in your possession relating to the
above-specified Mortgage Loan. If item 3 or 4 is checked, upon return of all of
the above documents to you as Trustee, please acknowledge your receipt by
signing in the space indicated below, and returning this form.
N-1
INDYMAC BANK, F.S.B.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
By:________________________
Name:______________________
Title:____________________
Date:______________________
TRUSTEE CONSENT TO RELEASE AND
ACKNOWLEDGEMENT OF RECEIPT
By:________________________
Name:______________________
Title:____________________
Date:______________________
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-1-1
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 February 1, 2007 (the "Pooling Agreement") by and among IndyMac
Bank, F.S.B., as seller and servicer, IndyMac MBS, Inc., as depositor and
Deutsche Bank National Trust Company, as trustee, pursuant to which was created
the 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:
O-1
EXHIBIT P
[RESERVED]
P-1
EXHIBIT Q
FORM 10-D, FORM 8-K AND FORM 10-K
REPORTING RESPONSIBILITY
As to each item described below, the entity indicated as the Responsible Party
shall be primarily responsible for reporting the information to the Trustee
pursuant to Section 3.24(e). If the Trustee is indicated below as to any item,
then the Trustee is primarily responsible for obtaining that information.
Under Item 1 of Form 10-D: a) items marked "4.03 statement" are required to be
included in the periodic Distribution Date statement under Section 4.03,
provided by the Trustee based on information received from the Servicer; and b)
items marked "Form 10-D report" are required to be in the Form 10-D report but
not the 4.03 statement, provided by the party indicated. Information under all
other Items of Form 10-D is to be included in the Form 10-D report.
Form Item Description Responsible Party
-------------- --------------- ---------------------------------------------------------- ---------------------------
10-D Must be filed within 15 days of the distribution date for the mortgage-backed securities.
=========================================================================================
-------------- ------------------------------------------------------------------------------------------------------
1 Distribution and Pool Performance Information
---------------------------------------------------------- ---------------------------
Item 1121(a) - Distribution and Pool Performance
Information
---------------------------------------------------------- ---------------------------
(1) Any applicable record dates, accrual dates, 4.03 statement
determination dates for calculating distributions and
actual distribution dates for the distribution period.
---------------------------------------------------------- ---------------------------
(2) Cash flows received and the sources thereof for 4.03 statement
distributions, fees and expenses.
---------------------------------------------------------- ---------------------------
(3) Calculated amounts and distribution of the 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 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 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 excess 4.03 statement
spread and the disposition of excess cash flow.
---------------------------------------------------------- ---------------------------
(4) Beginning and ending principal balances of the 4.03 statement
mortgage-backed securities.
---------------------------------------------------------- ---------------------------
(5) Interest rates applicable to the pool assets and the 4.03 statement
mortgage-backed securities, as applicable.
---------------------------------------------------------- ---------------------------
(6) Beginning and ending balances of transaction 4.03 statement
accounts, such as reserve accounts, and material
---------------------------------------------------------- ---------------------------
Q-1
-------------- --------------- ---------------------------------------------------------- ---------------------------
account activity during the period.
---------------------------------------------------------- ---------------------------
(7) Any amounts drawn on any credit enhancement 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 beginning 4.03 statement
and ending of each period, and updated pool composition
information, such as weighted average coupon, weighted Updated pool composition
average life, weighted average remaining term, pool information fields to be
factors and prepayment amounts. as specified by Depositor
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 waivers Form 10-D report: Servicer
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 Form 10-D report: Trustee
warranties or transaction covenants. (based on actual
knowledge to the extent
not notified by the
Servicer or the
Depositor)and Depositor
(to the extent of actual
knowledge)
---------------------------------------------------------- ---------------------------
(13) Information on ratio, coverage or other tests used 4.03 statement
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 backed by the same asset Depositor
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), such as additions or
removals in connection with a pre-funding or revolving
period and pool asset
-------------- --------------- ---------------------------------------------------------- ---------------------------
Q-2
-------------- --------------- ---------------------------------------------------------- ---------------------------
substitutions and repurchases (and purchase rates, if
applicable), and cash flows available for future
purchases, such as the balances of any pre-funding or
revolving accounts, if applicable.
Disclose any material changes in the solicitation,
credit-granting, underwriting, origination, acquisition Form 10-D report: Servicer
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 report, other Servicer
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 sponsor,
depositor or issuing entity, that are backed by the same Depositor
asset pool or are otherwise issued by the issuing
entity, whether or not registered, provide the sales and
use of proceeds information in Item 701 of Regulation
S-K. Pricing information can be omitted if securities
were not registered.
--------------- ---------------------------------------------------------- ---------------------------
4 Defaults Upon Senior Securities
---------------------------------------------------------- ---------------------------
Information from Item 3 of Part II of Form 10-Q:
-------------- --------------- ---------------------------------------------------------- ---------------------------
Q-3
-------------- --------------- ---------------------------------------------------------- ---------------------------
Report the occurrence of any Event of Default (after
expiration of any grace 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
-------------- --------------- ---------------------------------------------------------- ---------------------------
8-K Must be filed within four business days of an event reportable on Form 8-K.
===========================================================================
------------------------------------------------------------------------------------------------------
1.01 Entry into a Material Definitive Agreement
-------------- --------------- ---------------------------------------------------------- ---------------------------
Q-4
-------------- --------------- ---------------------------------------------------------- ---------------------------
Disclosure is required regarding entry 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 or Depositor
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 trigger or Servicer/Trustee (to the
other event, including event of default, that would extent of actual
materially alter the payment priority/distribution of knowledge)
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
---------------------------------------------------------- ---------------------------
Disclosure is required of any amendment "to the Depositor
governing documents of the issuing entity"
-------------- --------------- ---------------------------------------------------------- ---------------------------
Q-5
--------------- ---------------------------------------------------------- ---------------------------
5.06 Change in Shell Company Status
-------------------------------------------- ---------------------------
[Not applicable to ABS issuers] Depositor
--------------- ---------------------------------------------------------- ---------------------------
6.01 ABS Informational and Computational Material
---------------------------------------------------------- ---------------------------
[Not included in reports to be filed 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 other Depositor or Trustee
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% or Depositor
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 required Depositor
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 not Depositor
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 on Form The Responsible Party for
8-K during the fourth quarter covered by the Form 10-K the applicable Form 8-K
but not reported item as indicated above
--------------- ---------------------------------------------------------- ---------------------------
15 Exhibits and Financial Statement Schedules
---------------------------------------------------------- ---------------------------
Item 1112(b) - Significant Obligor Financial Information Servicer
-------------- --------------- ---------------------------------------------------------- ---------------------------
Q-6
-------------- --------------- ---------------------------------------------------------- ---------------------------
Item 1114(b)(2) - Credit Enhancement Provider Financial
Information Depositor
Determining applicable disclosure threshold
Obtaining required financial information or effecting
incorporation by reference
---------------------------------------------------------- ---------------------------
Item 1115(b) - Derivative Counterparty 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 report, other Servicer
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
Trustee (only as to
Servicer, affiliated Servicer, other Servicer servicing affiliations between the
20% or more of pool assets at time of report, other Trustee and such other
material servicers parties listed)
Originator Servicer
-------------- --------------- ---------------------------------------------------------- ---------------------------
Q-7
-------------- --------------- ---------------------------------------------------------- ---------------------------
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 February 1,
2007 (the "Pooling and Servicing Agreement") among IndyMac
MBS, Inc., as Depositor, IndyMac Bank, F.S.B., as Seller
and Servicer, and the undersigned, as Trustee (the
"Trustee")
I, ________________________________, the _______________________ of the
Trustee, 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 X
to prevent unauthorized access.
----------------- --------------------------------------- ----------- ----------- -----------
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.
----------------- --------------------------------------- ----------- ----------- -----------
S-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.
----------------- ---------------------------------------- ---------- ---------- -------------
S-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.
------------------ ----------------------------------------------- ------------- ----------- --------
S-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.
------------------ ----------------------------------------------- ------------- ----------- --------
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.
------------------ ----------------------------------------------- ------------- ----------- --------
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.
------------------ ----------------------------------------------- ------------- ----------- --------
1122(d)(4)(xiii) Disbursements made on behalf of an obligor X
are posted within two business days to the
obligor's records maintained by the servicer,
or such other number of days specified in the
transaction agreements.
------------------ ----------------------------------------------- ------------- ----------- --------
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible X
accounts are recognized and recorded in
accordance with the transaction agreements.
------------------ ----------------------------------------------- ------------- ----------- --------
1122(d)(4)(xv) Any external enhancement or other support, X (with X
identified in Item 1114(a)(1) through (3) or respect to
Item 1115 of Regulation AB, is maintained as a swap
set forth in the transaction agreements. disclosure
event)
------------------ ----------------------------------------------- ------------- ----------- --------
S-5
EXHIBIT T
[FORM OF] LIST OF ITEM 1119 PARTIES
ASSET BACKED CERTIFICATES
Series 200__-__
[Date]
______________________________________________________________________________
Party Contact Information
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
T-1
EXHIBIT U
[FORM OF] ▇▇▇▇▇▇▇▇-▇▇▇▇▇ CERTIFICATION
Re: Residential Asset Securitization Trust 2007-A3
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