EXHIBIT 99.1
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INDYMAC ABS, INC.
Depositor
INDYMAC BANK, F.S.B.
Seller and Master Servicer
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.
Trustee
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POOLING AND SERVICING AGREEMENT
Dated as of February 1, 2001
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HOME EQUITY MORTGAGE LOAN ASSET-BACKED TRUST
Series SPMD 2001-A
HOME EQUITY MORTGAGE LOAN ASSET-BACKED CERTIFICATES
Series SPMD 2001-A
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Table of Contents
Page
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions......................................1
Section 1.02. Rules of Construction...........................36
ARTICLE TWO
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
Section 2.01. Conveyance of Mortgage Loans.....................1
Section 2.02. Acceptance by the Trustee of the Mortgage
Loans............................................5
Section 2.03. Representations, Warranties, and Covenants
of the Seller and the Master Servicer............8
Section 2.04. Representations and Warranties of the
Depositor as to the Mortgage Loans..............10
Section 2.05. Delivery of Opinion of Counsel in
Connection with Substitutions and Repurchases...11
Section 2.06. Execution and Delivery of Certificates..........11
Section 2.07. REMIC Matters...................................12
Section 2.08. Covenants of the Master Servicer................12
Section 2.09. Subsequent Transfers............................12
Section 2.10. Mandatory Prepayment............................16
ARTICLE THREE
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01. Master Servicer to Service Mortgage Loans........1
Section 3.02. Subservicing; Enforcement of the
Obligations of Subservicers......................2
Section 3.03. [Reserved].......................................2
Section 3.04. No Contractual Relationship Between
Subservicers and the Trustee.....................2
Section 3.05. Trustee to Act as Master Servicer................3
Section 3.06. Collection of Mortgage Loan Payments;
Servicing Accounts; Collection Account;
Certificate Account; Distribution Account;
Pre-Funding Accounts; Capitalized Interest
Accounts.........................................4
Section 3.07. Collection of Taxes, Assessments and
Similar Items; Escrow Accounts...................9
Section 3.08. Access to Certain Documentation and
Information Regarding the Mortgage Loans........10
Section 3.09. Permitted Withdrawals from the Certificate
Account, the Distribution Account and the
Excess Reserve Fund Account.....................10
Section 3.10. Maintenance of Hazard Insurance;
Maintenance of Primary Insurance Policies.......12
Section 3.11. Enforcement of Due-On-Sale Clauses;
Assumption Agreements...........................14
i
Section 3.12. Realization Upon Defaulted Mortgage Loans;
Repurchase of Certain Mortgage Loans............15
Section 3.13. Trustee to Cooperate; Release of Mortgage
Files...........................................19
Section 3.14. Documents, Records and Funds in Possession
of the Master Servicer to be Held for the
Trustee.........................................20
Section 3.15. Servicing Compensation..........................20
Section 3.16. Access to Certain Documentation.................21
Section 3.17. Annual Statement as to Compliance...............21
Section 3.18. Annual Independent Public Accountants'
Servicing Statement; Financial Statements.......21
Section 3.19. Errors and Omissions Insurance; Fidelity
Bonds...........................................22
ARTICLE FOUR
DISTRIBUTIONS AND ADVANCES BY THE MASTER SERVICER
Section 4.01. Advances.........................................1
Section 4.02. Priorities of Distribution.......................1
Section 4.03. Monthly Statements to Certificateholders.........4
Section 4.04. [Reserved].......................................6
Section 4.05. [Reserved].......................................6
Section 4.06. [Reserved].......................................6
Section 4.07. Certain Matters Relating to the
Determination of LIBOR...........................6
ARTICLE FIVE
THE CERTIFICATES
Section 5.01. The Certificates.................................1
Section 5.02. Certificate Register; Registration of
Transfer and Exchange of Certificates............1
Section 5.03. Mutilated, Destroyed, Lost or Stolen
Certificates.....................................7
Section 5.04. Persons Deemed Owners............................7
Section 5.05. Access to List of Certificateholders'
Names and Addresses..............................7
Section 5.06. Maintenance of Office or Agency..................8
ARTICLE SIX
THE DEPOSITOR AND THE MASTER SERVICER
Section 6.01. Respective Liabilities of the Depositor
and the Master Servicer..........................1
Section 6.02. Merger or Consolidation of the Depositor
or the Master Servicer...........................1
Section 6.03. Limitation on Liability of the Depositor,
the Seller, the Master Servicer and Others.......1
Section 6.04. Limitation on Resignation of the Master
Servicer.........................................2
ii
ARTICLE SEVEN
DEFAULT
Section 7.01. Events of Default................................1
Section 7.02. Trustee to Act; Appointment of Successor.........2
Section 7.03. Notification to Certificateholders...............3
ARTICLE EIGHT
CONCERNING THE TRUSTEE
Section 8.01. Duties of the Trustee............................1
Section 8.02. Certain Matters Affecting the Trustee............2
Section 8.03. Trustee Not Liable for Certificates or
Mortgage Loans...................................3
Section 8.04. Trustee May Own Certificates.....................3
Section 8.05. Trustee's Fees and Expenses......................3
Section 8.06. Eligibility Requirements for the Trustee.........4
Section 8.07. Resignation and Removal of the Trustee...........4
Section 8.08. Successor Trustee................................5
Section 8.09. Merger or Consolidation of the Trustee...........6
Section 8.10. Appointment of Co-Trustee or Separate
Trustee..........................................6
Section 8.11. Tax Matters......................................7
Section 8.12. Periodic Filings................................10
Section 8.13. [Reserved]......................................10
Section 8.14. Tax Classification of the Excess Reserve
Fund Account....................................10
ARTICLE NINE
TERMINATION
Section 9.01. Termination upon Liquidation or Purchase
of the Mortgage Loans............................1
Section 9.02. Final Distribution on the Certificates...........1
Section 9.03. Additional Termination Requirements..............3
ARTICLE TEN
MISCELLANEOUS PROVISIONS
Section 10.01. Amendment........................................1
Section 10.02. Recordation of Agreement; Counterparts...........3
Section 10.03. Governing Law....................................3
Section 10.04. Intention of Parties.............................3
Section 10.05. Notices..........................................4
Section 10.06. Severability of Provisions.......................4
Section 10.07. Assignment.......................................5
Section 10.08. Limitation on Rights of Certificateholders.......5
Section 10.09. Inspection and Audit Rights......................6
Section 10.10. Certificates Nonassessable and Fully Paid........6
Section 10.11. Official Record..................................6
iii
SCHEDULES
Schedule I: Mortgage Loan Schedule................................S-I-1
Schedule II: Representations and Warranties of the
Seller/Master Servicer................................S-II-1
Schedule III: Representations and Warranties as to
the Mortgage Loans....................................S-III-1
Schedule IV: Planned Balanced Schedules ...........................S-IV-1
EXHIBITS
Exhibit A: Form of Class A, M and B Certificate....................A-1
Exhibit B: Form of Class P Certificate.............................B-1
Exhibit C: Form of Class R Certificate.............................C-1
Exhibit D: Form of Class X Certificate.............................D-1
Exhibit E: Form of Reverse of Certificates.........................E-1
Exhibit F: [Reserved]..............................................F-1
Exhibit G: Form of Initial Certification of Trustee................G-1
Exhibit 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: [Reserved]..............................................K-1
Exhibit L: Form of Rule 144A Letter................................L-1
Exhibit M: Form of Request for Release (for
Trustee)................................................M-1
Exhibit N: Form of Request for Release (Mortgage Loan
Paid in Full, Repurchased and Released).................N-1
Exhibit O: [Reserved]..............................................O-1
Exhibit Q: Form of Subsequent Transfer Agreement...................Q-1
iv
THIS POOLING AND SERVICING AGREEMENT, dated as of February 1, 2001,
among INDYMAC ABS, INC., a Delaware corporation, as depositor (the
"Depositor"), INDYMAC BANK, F.S.B. ("IndyMac"), a federal savings bank, as
seller (in that capacity, the "Seller") and as master servicer (in that
capacity, the "Master Servicer"), and BANKERS TRUST COMPANY OF CALIFORNIA,
N.A., a national banking association, as trustee (the "Trustee"),
WITNESSETH THAT
In consideration of the mutual agreements herein contained, the parties
agree as follows:
PRELIMINARY STATEMENT
The Trustee shall elect to treat each of the segregated pools of assets
described below as a real estate mortgage investment conduit (each a "REMIC"
or, in the alternative, REMIC 1, and REMIC 2, and REMIC 3, REMIC 3 also being
referred to as the "Upper Tier REMIC"). Each Certificate, other than the Class
R Certificates, represents ownership of a regular interest in the Upper Tier
REMIC for purposes of the REMIC Provisions. In addition, each Certificate,
other than the Class R and the Class P Certificates, represents an entitlement
to receive payments from the Excess Reserve Fund Account maintained by the
Trustee pursuant to Section 3.06(d). The Class R Certificate represents
ownership of the sole class of residual interest in each of REMIC 1, REMIC 2,
and the Upper Tier REMIC for purposes of the REMIC Provisions. Although the
Class P Certificate represents an interest in the Trust Fund, it does not
represent an interest in any of the REMICs created under this Agreement. The
Upper Tier REMIC shall hold as its assets the several classes of
uncertificated Lower Tier Interests in REMIC 2, other than the Class LT2-R
Interest, and each such Lower Tier Interest is hereby designated as regular
interests in REMIC 2 for purposes of the REMIC Provisions. REMIC 2 shall hold
as its assets the several classes of uncertificated Lower Tier Interests in
REMIC 1, other than the Class LT1-R Interest, and each such Lower Tier
Interest is hereby designated as a regular interest in REMIC 1. REMIC 1 shall
hold as its assets the property of the Trust Fund other than the Lower Tier
Interests in REMIC 1 and REMIC 2, the Group 1 Pre-Funding Account, the Group 2
Pre-Funding Account, the Group 1 Capitalized Interest Account, the Group 2
Capitalized Interest Account, and the Excess Reserve Fund Account. The startup
day for each REMIC created hereby for purposes of the REMIC Provisions is the
Closing Date. In addition, for purposes of the REMIC Provisions, the latest
possible maturity date for each regular interest in each REMIC created hereby
is March 25, 2033.
REMIC 1
The following table sets forth (or describes) the class designation,
interest rate, and initial principal amount for each class of REMIC 1 Lower
Tier Interests.
1
REMIC 1 REMIC 1
Lower Tier Lower Tier Initial Class
Class Designation Interest Rate Principal Amount
----------------- ------------- ----------------
Class LT1F-1 (1) $101,200,000.00
Class LT1F-2 (1) $ 400,000.00
Class LT1F-3 (1) $ 500,000.00
Class LT1F-4 (1) $ 500,000.00
Class LT1F-5 (1) $ 700,000.00
Class LT1F-6 (1) $ 700,000.00
Class LT1F-7 (1) $ 900,000.00
Class LT1F-8 (1) $ 900,000.00
Class LT1F-9 (1) $ 1,000,000.00
Class LT1F-10 (1) $ 1,000,000.00
Class LT1F-11 (1) $ 1,100,000.00
Class LT1F-12 (1) $ 1,100,000.00
Class LT1F-13 (1) $ 3,000,000.00
Class LT1F-14 (1) $ 3,600,000.00
Class LT1F-15 (1) $ 3,100,000.00
Class LT1F-16 (1) $ 3,000,000.00
Class LT1F-17 (1) $ 2,800,000.00
Class LT1F-18 (1) $ 2,600,000.00
Class LT1F-19 (1) $ 2,200,000.00
Class LT1F-20 (1) $ 2,000,000.00
Class LT1F-21 (1) $ 2,000,000.00
Class LT1F-22 (1) $ 1,800,000.00
Class LT1F-23 (1) $ 1,600,000.00
Class LT1F-24 (1) $ 1,600,000.00
Class LT1F-25 (1) $ 1,500,000.00
Class LT1F-26 (1) $ 1,500,000.00
Class LT1F-27 (1) $ 1,200,000.00
Class LT1F-28 (1) $ 1,000,000.00
Class LT1F-29 (1) $ 1,000,000.00
Class LT1F-30 (1) $ 900,000.00
Class LT1F-31 (1) $ 900,000.00
Class LT1F-32 (1) $ 800,000.00
Class LT1F-33 (1) $ 800,000.00
Class LT1F-34 (1) $ 700,000.00
Class LT1F-35 (1) $13,400,000.00
Class LT1V-1 (2) $137,000,000.00
Class LT1V-2 (2) $ 2,500,000.00
2
Class LT1V-3 (2) $ 8,500,000.00
Class LT1V-4 (2) $ 3,900,000.00
Class LT1V-5 (2) $ 1,300,000.00
Class LT1V-6 (2) $ 7,400,000.00
Class LT1V-7 (2) $ 1,100,000.00
Class LT1V-8 (2) $ 3,500,000.00
Class LT1V-9 (2) $ 1,000,000.00
Class LT1V-10 (2) $ 2,900,000.00
Class LT1V-11 (2) $ 1,700,000.00
Class LT1V-12 (2) $ 800,000.00
Class LT1V-13 (2) $ 2,200,000.00
Class LT1V-14 (2) $ 700,000.00
Class LT1V-15 (2) $ 1,100,000.00
Class LT1V-16 (2) $ 1,400,000.00
Class LT1V-17 (2) $ 700,000.00
Class LT1V-18 (2) $ 1,200,000.00
Class LT1V-19 (2) $ 700,000.00
Class LT1V-20 (2) $ 1,000,000.00
Class LT1V-21 (2) $ 700,000.00
Class LT1V-22 (2) $ 600,000.00
Class LT1V-23 (2) $ 700,000.00
Class LT1V-24 (2) $ 500,000.00
Class LT1V-25 (2) $ 600,000.00
Class LT1V-26 (2) $ 900,000.00
Class LT1V-27 (2) $ 2,400,000.00
Class LT1-R (3) (3)
(1) The interest rate with respect to any Distribution Date (and the related
Interest Accrual Period) for these Lower Tier Interests is a per annum
rate equal to the weighted average of the Adjusted Net Mortgage Rates of
the Mortgage Loans in Loan Group 1 as of the first day of the related
Remittance Period.
(2) The interest rate with respect to any Distribution Date (and the related
Interest Accrual Period) for these Lower Tier Interests is a per annum
rate equal to the weighted average of the Adjusted Net Mortgage Rates of
the Mortgage Loans in Loan Group 2 as of the first day of the related
Remittance Period.
(3) The Class LT1-R Interest is the sole class of residual interest in the
REMIC 1. It does not have an interest rate or a principal balance.
On each Distribution Date, interest is payable on each REMIC 1 Lower Tier
Regular Interest at the rate shown above.
3
On each Distribution Date all collections and other recoveries attributable
to principal of the Mortgage Loans in Loan Group 1, and all Realized Losses
attributable to the Mortgage Loans in Loan Group 1, shall be allocated first
to the Class LT1F-1 Interest until its principal balance is reduced to zero,
and then to each of the remaining Lower Tier Interests in REMIC 1 having a
Class LT1F designation sequentially, in ascending numerical order, until the
principal balance of each such Lower Tier Interest is reduced to zero.
On each Distribution Date all collections and other recoveries attributable
to principal of the Mortgage Loans in Loan Group 2, and all Realized Losses
attributable to the Mortgage Loans in Loan Group 2, shall be allocated first
to the Class LT1V-1 Interest until its principal balance is reduced to zero,
and then to each of the remaining Lower Tier Interests in REMIC 1 having a
Class LT1V designation sequentially, in ascending numerical order, until the
principal balance of each such Lower Tier Interest is reduced to zero.
REMIC 2
The following table sets forth (or describes) the class designation,
interest rate, and principal amount for each class of REMIC 2 Lower Tier
Interests.
REMIC 2 Corresponding
Lower Tier REMIC 2 Initial Class Class of
Class Lower Tier Principal Certificates
Designation Interest Rate Amount (or Components)
-------------- ---------------- ---------------- --------------------
Class LT2-D (1) $81,500,000.00 N/A
Class LT2-AF-1 (1) $20,700,000.00 Class AF-1
Class LT2-AF-2 (1) $13,250,000.00 Class AF-2
Class LT2-AF-3 (1) $11,000,000.00 Class AF-3
Class LT2-AF-4 (1) $14,750,000.00 Class AF-4
Class LT2-AF-5 (1) $8,962,950.00 Class AF-5
Class LT2-AF-6 (1) $8,150,000.00 Class AF-6
Class LT2-MF-1 (1) $2,241,500.00 Class MF-1
Class LT2-MF-2 (1) $1,834,000.00 Class MF-2
Class LT2-BF (1) $ 611,500.00 Class BF-1
Class LT2-AR (1) $50.00 Class R
Class LT2-IO-F1 (2) (2) Group 1 IO
Class LT2-IO-F2 (3) (3) Group 1 IO
Class LT2-IO-F3 (4) (4) Group 1 IO
Class LT2-IO-F4 (5) (5) Group 1 IO
Class LT2-IO-F5 (6) (6) Group 1 IO
Class LT2-IO-F6 (7) (7) Group 1 IO
Class LT2-IO-F7 (8) (8) Group 1 IO
4
Class LT2-IO-F8 (9) (9) Group 1 IO
Class LT2-IO-F9 (10) (10) Croup 1 IO
Class LT2-IO-F10 (11) (11) Group 1 IO
Class LT2-IO-F11 (12) (12) Group 1 IO
Class LT2-IO-F12 (13) (13) Group 1 IO
Class LT2-IO-F13 (14) (14) Group 1 IO
Class LT2-IO-F14 (15) (15) Group 1 IO
Class LT2-IO-F15 (16) (16) Group 1 IO
Class LT2-IO-F16 (17) (17) Group 1 IO
Class LT2-IO-F17 (18) (18) Group 1 IO
Class LT2-IO-F18 (19) (19) Group 1 IO
Class LT2-IO-F19 (20) (20) Group 1 IO
Class LT2-IO-F20 (21) (21) Group 1 IO
Class LT2-IO-F21 (22) (22) Group 1 IO
Class LT2-IO-F22 (23) (23) Group 1 IO
Class LT2-IO-F23 (24) (24) Group 1 IO
Class LT2-IO-F24 (25) (25) Group 1 IO
Class LT2-IO-F25 (26) (26) Group 1 IO
Class LT2-IO-F26 (27) (27) Group 1 IO
Class LT2-IO-F27 (28) (28) Group 1 IO
Class LT2-IO-F28 (29) (29) Group 1 IO
Class LT2-IO-F29 (30) (30) Group 1 IO
Class LT2-IO-F30 (31) (31) Group 1 IO
Class LT2-IO-F31 (32) (32) Group 1 IO
Class LT2-IO-F32 (33) (33) Group 1 IO
Class LT2-IO-F33 (34) (34) Group 1 IO
Class LT2-IO-F34 (35) (35) Group 1 IO
Class LT2-Q (36) $93,500,000.00 N/A
Class LT2-AV (36) $89,292,000.00 Class AV-1
Class LT2-MV-1 (36) $ 2,104,000.00 Class MV-1
Class LT2-MV-2 (36) $ 1,870,000.00 Class MV-2
Class LT2-BV (36) $ 234,000.00 Class BV-1
Class LT2-IO-V1 (37) (37) Group 2 IO
Class LT2-IO-V2 (38) (38) Group 2 IO
Class LT2-IO-V3 (39) (39 Group 2 IO
Class LT2-IO-V4 (40) (40) Group 2 IO
Class LT2-IO-V5 (41) (41) Group 2 IO
Class LT2-IO-V6 (42) (42) Group 2 IO
Class LT2-IO-V7 (43) (43) Group 2 IO
Class LT2-IO-V8 (44) (44) Group 2 IO
5
Class LT2-IO-V9 (45) (45) Group 2 IO
Class LT2-IO-V10 (46) (46) Group 2 IO
Class LT2-IO-V11 (47) (47) Group 2 IO
Class LT2-IO-V12 (48) (48) Group 2 IO
Class LT2-IO-V13 (49) (49) Group 2 IO
Class LT2-IO-V14 (50) (50) Group 2 IO
Class LT2-IO-V15 (51) (51) Group 2 IO
Class LT2-IO-V16 (52) (52) Group 2 IO
Class LT2-IO-V17 (53) (53) Group 2 IO
Class LT2-IO-V18 (54) (54) Group 2 IO
Class LT2-IO-V19 (55) (55) Group 2 IO
Class LT2-IO-V20 (56) (56) Group 2 IO
Class LT2-IO-V21 (57) (57) Group 2 IO
Class LT2-IO-V22 (58) (58) Group 2 IO
Class LT2-IO-V23 (59) (59) Group 2 IO
Class LT2-IO-V24 (60) (60) Group 2 IO
Class LT2-IO-V25 (61) (61) Group 2 IO
Class LT2-IO-V26 (62) (62) Group 2 IO
Class LT2-R (63) (63) N/A
(1) The interest rate with respect to any Distribution Date (and the related
Interest Accrual Period) for these interests is a per annum rate equal
Group 1 WAC Cap.
(2) The Class LT2-IO F1 Interest has a notional principal balance of
$400,000 and, for each of the first two Dstribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(3) The Class LT2-IO F2 Interest has a notional principal balance of
$500,000 and, for each of the first three Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(4) The Class LT2-IO F3 Interest has a notional principal balance of
$500,000 and, for each of the first four Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(5) The Class LT2-IO F4 Interest has a notional principal balance of
$700,000 and, for each of the first 5 Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(6) The Class LT2-IO F5 Interest has a notional principal balance of
$700,000 and, for each of the first six Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
6
(7) The Class LT2-IO F6 Interest has a notional principal balance of
$9000,000 and, for each the first seven Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(8) The Class LT2-IO F7 Interest has a notional principal balance of
$900,000 and, for each of the first eight Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(9) The Class LT2-IO F8 Interest has a notional principal balance of
$1,000,000 and, for each of the first nine Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(10) The Class LT2-IO F9 Interest has a notional principal balance of
$1,000,000 and, for each of the first ten Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(11) The Class LT2-IO F10 Interest has a notional principal balance of
$1,100,000 and, for each of the first eleven Distribution Dates shall
bear interest at a rate of 7% and shall not bear interest thereafter.
(12) The Class LT2-IO F11 Interest has a notional principal balance of
$1,100,000 and, for each of the first 12 Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(13) The Class LT2-IO F12 Interest has a notional principal balance of
$3,000,000 and, for each of the first 13 Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(14) The Class LT2-IO F13 Interest has a notional principal balance of
$3,600,000 and, for each of the first 14 Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(15) The Class LT2-IO F14 Interest has a notional principal balance of
$3,100,000 and, for each of the first 15 Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(16) The Class LT2-IO F15 Interest has a notional principal balance of
$3,000,000 and, for each of the first 16 Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(17) The Class LT2-IO F16 Interest has a notional principal balance of
$2,800,000 and, for each of the first 17 Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(18) The Class LT2-IO F17 Interest has a notional principal balance of
$2,600,000 and, for each of the first 18 Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
7
(19) The Class LT2-IO F18 Interest has a notional principal balance of
$2,200,000 and, for each of the first 19 Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(20) The Class LT2-IO F19 Interest has a notional principal balance of
$2,000,000 and, for each of the first 20 Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(21) The Class LT2-IO F20 Interest has a notional principal balance of
$2,000,000 and, for each of the first 21 Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(22) The Class LT2-IO F21 Interest has a notional principal balance of
$1,800,000 and, for each of the first 22 Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(23) The Class LT2-IO F22 Interest has a notional principal balance of
$1,600,000 and, for each of the first 23 Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(24) The Class LT2-IO F23 Interest has a notional principal balance of
$1,600,000 and, for each of the first 24 Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(25) The Class LT2-IO F24 Interest has a notional principal balance of
$1,500,000 and, for each of the first 25 Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(26) The Class LT2-IO F25 Interest has a notional principal balance of
$1,500,000 and, for each of the first 26 Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(27) The Class LT2-IO F26 Interest has a notional principal balance of
$1,200,000 and, for each of the first 27 Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(28) The Class LT2-IO F27 Interest has a notional principal balance of
$1,000,000 and, for each of the first 28 Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(29) The Class LT2-IO F28 Interest has a notional principal balance of
$1,000,000 and, for each of the first 29 Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(30) The Class LT2-IO F29 Interest has a notional principal balance of
$900,000 and, for each of the first 30 Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
8
(31) The Class LT2-IO F30 Interest has a notional principal balance of
$900,000 and, for each of the first 31 Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(32) The Class LT2-IO F31 Interest has a notional principal balance of
$800,000 and, for each of the first 32 Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(33) The Class LT2-IO F32 Interest has a notional principal balance of
$800,000 and, for each of the first 33 Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(34) The Class LT2-IO F33 Interest has a notional principal balance of
$700,000 and, for each of the first 34 Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(35) The Class LT2-IO F34 Interest has a notional principal balance of
$13,400,000 and, for each of the first 35 Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(36) The interest rate with respect to any Distribution Date (and the related
accrual period) for these interests is a per annum rate equal Group 2
WAC Cap.
(37) The Class LT2-IO V1 Interest has a notional principal balance of
$2,500,000 and, for each of the first three Distribution Dates shall
bear interest at a rate of 7% and shall not bear interest thereafter.
(38) The Class LT2-IO V2 Interest has a notional principal balance of
$8,500,000 and, for each of the first six Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(39) The Class LT2-IO V3 Interest has a notional principal balance of
$3,900,000 and, for each of the first nine Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(40) The Class LT2-IO V4 Interest has a notional principal balance of
$1,300,000 and, for each of the first nine Distribution Dates shall bear
interest at a rate of 7%, for the 10th Distribution Date shall bear
interest a rate of 6.7806267806%, and for the 11th Distribution Date
shall bear interest at a rate of 7% and shall not bear interest
thereafter.
(41) The Class LT2-IO V5 Interest has a notional principal balance of
$7,40,000 and, for each of the first eleven Distribution Dates shall
bear interest at a rate of 7%, for the 12th Distribution Date shall bear
interest a rate of 6.065088757%, and for the 13th Distribution Date
shall bear interest at a rate of 7% and shall not bear interest
thereafter.
9
(42) The Class LT2-IO V6 Interest has a notional principal balance of
$1,100,000 and, for each of the first 14 Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(43) The Class LT2-IO V7 Interest has a notional principal balance of
$3,500,000 and, for each of the first 15 Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(44) The Class LT2-IO V8 Interest has a notional principal balance of
$1,000,000 and, for each of the first 16 Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(45) The Class LT2-IO V9 Interest has a notional principal balance of
$2,900,000 and, for each of the first 17 Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(46) The Class LT2-IO V10 Interest has a notional principal balance of
$1,700,000 and, for each of the first 18 Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(47) The Class LT2-IO V11 Interest has a notional principal balance of
$800,000 and, for each of the first 19 Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(48) The Class LT2-IO V12 Interest has a notional principal balance of
$2,200,000 and, for each of the first 20 Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(49) The Class LT2-IO V13 Interest has a notional principal balance of
$700,000 and, for each of the first 21 Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(50) The Class LT2-IO V14 Interest has a notional principal balance of
$1,100,000 and, for each of the first 22 Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(51) The Class LT2-IO V15 Interest has a notional principal balance of
$1,400,000 and, for each of the first 22 Distribution Dates shall bear
interest at a rate of 7%, for the 23rd Distribution Date shall bear
interest at a rate of 6.6315789474%, and shall bear interest at a rate
of 7% for the 24th and 25th Distribution Dates, and shall not bear
interest thereafter.
(52) The Class LT2-IO V16 Interest has a notional principal balance of
$700,000 and, for each of the first 26 Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
10
(53) The Class LT2-IO V17 Interest has a notional principal balance of
$1,200,000 and, for each of the first 27 Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(54) The Class LT2-IO V18 Interest has a notional principal balance of
$700,000 and, for each of the first 28 Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(55) The Class LT2-IO V19 Interest has a notional principal balance of
$1,000,000 and, for each of the first 29 Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(56) The Class LT2-IO V20 Interest has a notional principal balance of
$700,000 and, for each of the first 30 Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(57) The Class LT2-IO V21 Interest has a notional principal balance of
$600,000 and, for each of the first 31 Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(58) The Class LT2-IO V22 Interest has a notional principal balance of
$700,000 and, for each of the first 32 Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(59) The Class LT2-IO V23 Interest has a notional principal balance of
$500,000 and, for each of the first 33 Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(60) The Class LT2-IO V24 Interest has a notional principal balance of
$600,000 and, for each of the first 34 Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(61) The Class LT2-IO V25 Interest has a notional principal balance of
$900,000 and, for each of the first 35 Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(62) The Class LT2-IO V26 Interest has a notional principal balance of
$2,400,000 and, for each of the first 36 Distribution Dates shall bear
interest at a rate of 7% and shall not bear interest thereafter.
(63) The Class LT2-R Interest is the sole class of residual interest in the
REMIC 2. It does not have an interest rate or a principal balance.
On each Distribution Date (and the related Interest Accrual Period), a
portion of the interest that accrues at the rate shown above on the Class
LT2-D Interest shall be deferred and added to the principal balance of the
Class LT2-D Interest. For any Distribution Date, the portion so deferred shall
equal 50% of the increase occurring on such Distribution Date in the
11
Subordinated Amount for the Group 1 Certificates. Interest so deferred shall
be applied to make principal payments on the other Lower Tier Interests in
REMIC 2.
On each Distribution Date (and the related Interest Accrual Period), a
portion of the interest that accrues at the rate shown above on the Class
LT2-Q Interest shall be deferred and added to the principal balance of the
Class LT2-Q Interest. For any Distribution Date, the portion so deferred shall
equal 50% of the increase occurring on such Distribution Date in the
Subordinated Amount for the Group 2 Certificates. Interest so deferred shall
be applied to make principal payments on the other Lower Tier Interests in
REMIC 2.
On each Distribution Date, Available Funds with respect to Loan Group 1
shall be applied to pay interest that accrues at the pass through rates shown
above on the Class LT2-AF-1, Class LT2-AF-2, Class LT2-AF-3, Class LT2-AF-4,
Class LT2-AF-5, Class LT2-AF-6, Class LT2-MF-1, Class LT2-MF-2, Class
LT2-BF,and LT2-D Interests, other than the interest that is deferred with
respect to the Class LT2-D.
On each Distribution Date, Available Funds with respect to Loan Group 2
shall be applied to pay interest that accrues at the pass through rates shown
above on the Class LT2-AV, Class LT2-MV-1, Class LT2-MV-2, Class LT2-BV, and
Class LT2-Q Interests, other than the interest that is deferred with respect
to the Class LT2-Q.
On each Distribution Date, Available Funds with respect to Loan Group 1
not applied to pay interest on the Lower Tier Interests in REMIC 2 shall first
be distributed with respect to the Class LT2-AR Interest until its balance is
reduced to zero, and then shall be distributed to, and losses shall be
allocated among, the Class LT2-AF-1, Class LT2-AF-2, Class LT2-AF-3, Class
LT2-AF-4, Class LT2-AF-5, Class LT2-AF-6, Class LT2-MF-1, Class LT2-MF-2, and
Class LT2-BF Interests in a manner such that, immediately following the
Distribution Date, the principal balance of each such Lower Tier Interest in
REMIC 2 equals 50% of the balance of the Corresponding Class of Certificates.
Any remaining Available Funds for Loan Group 1 shall be distributed as
principal with respect to Class LT2-D.
On each Distribution Date, Available Funds with respect to Loan Group 2
not applied to pay interest on the Lower Tier Interests in REMIC 2 shall be
distributed to, and losses shall be allocated among, the Class LT2-AV, Class
LT2-MV-1, Class LT2-MV-2, and Class LT2-BV Interests in a manner such that,
immediately following the Distribution Date, the principal balance of each
such Lower Tier Interest in REMIC 2 equals 50% of the balance of the
Corresponding Class of Certificates. Any remaining Available Funds for Loan
Group 2 shall be distributed as principal with respect to Class LT2-Q.
REMIC 3
The following table sets forth (or describes) the class designation,
interest rate, and principal amount for each class of Upper Tier REMIC
Interests.
12
Initial Upper
Upper Tier Upper Tier Tier Principal Corresponding
Class Designation Interest Rate Amount Certificate
----------------- -------------- --------------- ---------------
Class AF-1 5.704%(1) $41,400,000.00 Class AF-1(10)
Class AF-2 5.762%(1) $26,500,000.00 Class AF-2(10)
Class AF-3 6.092%(1) $22,000,000.00 Class AF-3(10)
Class AF-4 6.607%(1) $29,500,000.00 Class AF-4(10)
Class AF-5 7.225%(1)(2) $17,925,900.00 Class AF-5(10)
Class AF-6 6.537%(1) $16,300,000.00 Class AF-6(10)
Class MF-1 7.336%(1) $ 4,483,000.00 Class MF-1(10)
Class MF-2 7.731%(1) $ 3,668,000.00 Class MF-2(10)
Class BF 8.336%(1) $ 1,223,000.00 Class BF(10)
Class AV (3) $178,584,000.00 Class AV (10)
Class MV-1 (3) $ 4,208,000.00 Class MV-1(10)
Class MV-2 (3) $ 3,740,000.00 Class MV-2(10)
Class BV (3) $ 468,000.00 Class BV (10)
Group 1-IO (4) (4) Class AF-IO(8)
Group 2 IO (5) (5) Class AF-IO(8)
Class XF (6) (6) Class X(9)
Class XV (7) (7) Class X(9)
Class UT-R (11) $100 Class R
(1) With respect to any Distribution Date, the rate at which interest is
payable on these interests will be the lesser of the rate shown above or
the Group 1 WAC Cap.
(2) Following the Optional Termination Date, the stated per annum
Pass-Through Rate shown above for this interest will increase by 0.50%.
(3) The Class AV, Class MV-1, Class MV-2, and Class BV Interests will bear
interest during their initial Interest Accrual Period at 5.64125%,
5.99125%, 6.53125%, and 7.88125%, respectively, per annum. The Class AV,
Class MV-1, Class MV-2, and Class BV Interests will bear interest during
each Interest Accrual Period thereafter at a per annum rate equal to the
least of (i) LIBOR plus 0.26%, 0.61%, 1.15%, and 2.50%, respectively,
(ii) the Group 2 Maximum Cap, and (iii) the Group 2 WAC Cap. Following
the Optional Termination Date, the Pass-Through Margin for the Class AV
Certificates shall be doubled and the Pass-Through Margin for Group 2
Subordinated Certificates shall increase by 1.5 times.
(4) The Group 1 IO does not have a principal balance. For any Distribution
Date, the Group 1 IO shall be entitled to all interest payable for such
date with respect to the Class LT2-IO-F1, Class LT2-IO-F2, Class
LT2-IO-F3, Class LT2-IO-F4, Class LT2-IO-F5, Class LT2-IO-F6, Class
LT2-IO-F7, Class LT2-IO-F8, Class LT2-IO-F9, Class LT2-IO-F10, Class
LT2-IO-F11, Class LT2-IO-F12, Class LT2-IO-F13, Class LT2-IO-F14, Class
13
LT2-IO-F15, Class LT2-IO-F16, Class LT2-IO-F17, Class LT2-IO-F18, Class
LT2-IO-F18, Class LT2-IO-F20, Class LT2-IO-F21, Class LT2-IO-F22, Class
LT2-IO-F23, Class LT2-IO-F24, Class LT2-IO-F25, Class LT2-IO-F26, Class
LT2-IO-F27, Class LT2-IO-F28, Class LT2-IO-F29, Class LT2-IO-F30, Class
LT2-IO-F31, Class LT2-IO-F32, Class LT2-IO-F33, and Class LT2-IO-F34
Lower Tier Interests.
(5) The Group 2 IO does not have a principal balance. For any Distribution
Date, the Group 2 IO shall be entitled to all interest payable for such
date with respect to the Class LT2-IO-V1, Class LT2-IO-V2, Class
LT2-IO-V3, Class LT2-IO-V4, Class LT2-IO-V5, Class LT2-IO-V6, Class
LT2-IO-V7, Class LT2-IO-V8, Class LT2-IO-V9, Class LT2-IO-V10, Class
LT2-IO-V11, Class LT2-IO-V12, LT2-IO-V13, LT2-IO-V14, LT2-IO-V15,
LT2-IO-V16, LT2-IO-V17, LT2-IO-V18, LT2-IO-V19, LT2-IO-V20, LT2-IO-V21,
LT2-IO-V22, LT2-IO-V23, LT2-IO-V24, LT2-IO-V25, and LT2-IO-V26 Lower
Tier Interests.
(6) The Class XF Interest does not have a principal balance but it will
accrue interest on a notional principal balance. As of any Distribution
Date, the Class XF Interest shall have a notional principal balance
equal to the aggregate of the principal balances of the Class LT2-AF-1,
Class LT2-AF-2, Class LT2-AF-3, Class LT2-AF-4, Class LT2-AF-5, Class
LT2-AF-6, Class LT2-MF-1, Class LT2-MF-2, Class LT2-BF,and LT2-D
Interests as of the first day of the related Interest Accrual Period.
With respect to any Interest Accrual Period, the Class XF Interest shall
bear interest at a rate equal to the excess of the Group 1 WAC Cap over
the product of (i) 2 and (ii) the Adjusted Lower Tier Fixed Rate WAC.
With respect to any Distribution Date, interest that so accrues on the
notional balance of the Class XF Interest shall be deferred in an amount
equal to any increase in the Subordinated Amount for the Group 1
Certificates on the Distribution Date. The deferred interest shall not
itself bear interest.
(7) The Class XV Interest does not have a principal balance but will accrue
interest on a notional principal balance. As of any Distribution Date,
the Class XV Interest shall have a notional principal balance equal to
the aggregate of the principal balances of the Class LT2-AV, Class
LT2-MV-1, Class LT2-MV-2, Class LT2-BV, and Class LT2-Q Interests as of
the first day of the related Interest Accrual Period. With respect to
any Interest Accrual Period, the Class XV Interest shall bear interest
at a rate equal to the excess of the Group 2 WAC Cap over the product of
(i) 2 and (ii) the Adjusted Lower Tier Adjustable Rate WAC. With respect
to any Distribution Date, interest that so accrues on the notional
balance of the Class XV Interest shall be deferred in an amount equal to
any increase in the Subordinated Amount for the Group 2 Certificates on
the Distribution Date. The deferred interest shall not itself bear
interest.
(8) The Group 1 IO and the Group 2 IO Interests are non severable components
of the Class AF-IO Certificate.
14
(9) The Class XF and the Class XV Interests are non-severable components of
the Class X Certificate.
(10) Each of these Certificates will represent not only the ownership of the
Corresponding Class of Upper Tier Regular Interest but also the right to
receive payments from the Excess Reserve Fund Account in respect of any
Basis Risk CarryForward Amounts. For federal income tax purposes, the
Trustee will treat a Certificateholder's right to receive payments from
the Excess Reserve Fund Account as payments made pursuant to an interest
rate cap contract written by the Class X Certificateholder.
(11) The Class UT-R Interest is the sole class of residual interest in the
Upper Tier REMIC. The Class UT-R Interest does not have an interest
rate.
The minimum denomination for each Class of Certificates, other than the
Class P, Class R, and the Class X Certificates, will be $25,000. The Class P,
Class R, and the Class X Certificates will each represent a 100% Percentage
Interest in such class.
Set forth below is designations of Classes of Certificates to the
categories used herein:
Book-Entry Certificates....All Classes of Certificates other
than the Physical Certificates.
Group 1 Certificates.......Class AF-1, Class AF-2, Class
AF-3, Class AF-4, Class AF-5, Class AF-6, Class
AF-IO, Class MF-1, Class MF-2, Class BF, and Class
R Certificates.
Group 2 Certificates.......Class AV, Class MV-1, Class
MV-2, and Class BV Certificates.
Group 1 Class A
Certificates.............. Class AF-1, Class AF-2,Class AF-3, Class AF-4,
Class AF-5, Class AF-6, and Class AF-IO
Certificates.
Group 2 Class A
Certificates ............. Class AV Certificates.
Group 1 Mezzanine
Certificates.............. Class MF-1 and Class MF-2 Certificates.
Group 2 Mezzanine
Certificates.............. Class MV-1 and Class MV-2 Certificates.
Group 1 Subordinated
Certificates ..............Group 1 Mezzanine Certificates and Class BF
Certificates.
Group 2 Subordinated
Certificates.............. Group 2 Mezzanine Certificates and Class BV
Certificates.
Adjustable Rate
Certificates.............. Group 2 Certificates.
Fixed Rate Certificates....Class AF-1, Class AF-2, Class AF-3,
Class AF-4, Class AF-5, Class AF-6, Class
AF-IO, Class MF-1, Class MF-2, and Class BF
Certificates.
Delay Certificates........ All interest-bearing Classes of
Certificates other than any Non-Delay
Certificates.
15
ERISA-Restricted
Certificates ..............Class R, Class P, and Class X
Certificates.
Floating Rate
Certificates.............. Adjustable Rate Certificates.
LIBOR Certificates........ Adjustable Rate Certificates.
Mezzanine Certificates ... Class MF-1, Class MF-2, Class MV-1, and
Class MV-2 Certificates.
Non-Delay Certificates.... Adjustable Rate Certificates.
Offered Certificates ..... All Classes of Certificates other than the
Private Certificates.
Physical Certificates .... Class R, Class P, and Class X Certificates.
Private Certificates...... Class X and Class P Certificates.
Rating Agencies........... Xxxxx'x, S&P, and Fitch.
Regular Certificates ..... All Classes of Certificates other than
the Class P and Class R Certificates.
Residual Certificates .... Class R Certificates.
Subordinated
Certificates.............. Mezzanine Certificates, Class BF
Certificates, and Class BV Certificates.
References to "Class A," "Class M-1," "Class X-0," "Xxxxx X," "Mezzanine
Certificates," and "Subordinated Certificates" are references to Certificates
of either or both Certificate Groups of similar designations, as the context
requires.
16
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions.
Unless the context requires a different meaning, capitalized terms are
used in this Agreement as defined below.
Accrued Certificate Interest Distribution Amount: For any Distribution
Date for each Class of Certificates (other than the Class P, Class R, and
Class X Certificates), the amount of interest accrued during the related
Interest Accrual Period at the applicable Pass-Through Rate on the related
Class Certificate Balance immediately before the Distribution Date.
Adjusted Lower Tier Adjustable Rate WAC: For any Interest Accrual
Period, the weighted average of the interest rates on the Lower Tier
Adjustable Rate Regular Interests determined for this purpose by first
subjecting the rate payable on the Class LT-Q Interest to a cap of zero and
subjecting the rate payable on each of the Class LT2-AV, Class LT-MV-1, Class
LT2-MV-2, and Class LT-BV Interests to a cap equal to LIBOR plus the Margin
that corresponds to the Pass-Through Margin used in computing the Pass-Through
Rate on the Corresponding Class of Certificates.
Adjusted Lower Tier Fixed Rate WAC: For any Interest Accrual Period, the
weighted average of the interest rates on the Lower Tier Fixed Rate Regular
Interests determined for this purpose by first subjecting the rate payable on
the Class LT-D Interest to a cap of zero and subjecting the rate payable on
each of the Class LT2-AF-1, Class LT2-AF-2, Class LT2-AF-3, Class LT2-AF-4,
Class LT2-AF-5, Class LT2-AF-6, Class LT2-MF-1, Class LT2-MF-2, and Class
LT2-BF Interests to a cap that corresponds to the Pass-Through Rate payable on
the Corresponding Class of Certificates.
Adjusted Mortgage Rate: As to each Mortgage Loan and at any time, the
per annum rate equal to the Mortgage Rate less the Master Servicing Fee Rate.
Adjusted Net Mortgage Rate: As to each Mortgage Loan and at any time,
the per annum rate equal to the Mortgage Rate less the Expense Fee Rate.
Adjustment Date: As to any Mortgage Loan in Loan Group 2, the first Due
Date on which the related Mortgage Rate adjusts as provided in the related
Mortgage Note and each Due Date thereafter on which the Mortgage Rate adjusts
as provided in the related Mortgage Note.
Advance: As to a Loan Group, the payment required to be made by the
Master Servicer for any Distribution Date pursuant to Section 4.01, the amount
of that payment being equal to the aggregate of payments of principal and
interest (net of the Master Servicing Fee and the Servicing Fee and net of any
net income in the case of any REO Property) on the Mortgage
I-1
Loans in the Loan Group that were due during the related Remittance Period and
not received as of the close of business on the related Determination Date,
less the aggregate amount of any delinquent payments that the Master Servicer
has determined would constitute a Nonrecoverable Advance if advanced.
AF-6 Share: The product of the Principal Distribution Amount for Loan
Group 1 for the relevant Distribution Date and a fraction whose numerator is
the Class Certificate Balance of the Class AF-6 Certificates immediately
before that Distribution Date and whose denominator is the aggregate Class
Certificate Balances of the Group 1 Class A Certificates immediately before
that Distribution Date.
Agreement: This Pooling and Servicing Agreement.
Amount Held for Future Distribution: As to the Certificates in either
Certificate Group on any Distribution Date, the aggregate amount held in the
Certificate Account at the close of business on the related Determination Date
on account of (i) Principal Prepayments and Liquidation Proceeds on the
Mortgage Loans in the related Loan Group received after the end of the related
Remittance Period and (ii) all Scheduled Payments on the Mortgage Loans in the
related Loan Group due after the end of the related Remittance Period.
Applied Realized Loss Amount: For any Distribution Date, the
excess of
(i) for the Group 1 Certificates, the aggregate Class Certificate
Balance of the Group 1 Certificates after distributions of principal on the
Distribution Date over the aggregate Stated Principal Balance of the Mortgage
Loans in Loan Group 1 as of the last day of the preceding Remittance Period
plus the amount in the related Pre-Funding Account excluding investment
earnings, and
(ii) for the Group 2 Certificates, the aggregate Class Certificate
Balance of the Group 2 Certificates after distributions of principal on the
Distribution Date over the aggregate Stated Principal Balance of the Mortgage
Loans in Loan Group 2 as of the last day of the preceding Remittance Period
plus the amount in the related Pre-Funding Account excluding investment
earnings.
Available Funds: For any Distribution Date and the Mortgage Loans in a
Loan Group are the excess of receipts over expenses.
The receipts are the sum of
(i) all scheduled installments of interest (net of the related Expense
Fees) and principal due on the Due Date on the Mortgage Loans in the related
Remittance Period and received before the related Determination Date, together
with any related Advances;
(ii) all Insurance Proceeds and Liquidation Proceeds during the related
Remittance Period (in each case, net of unreimbursed expenses incurred in
connection with a liquidation or foreclosure);
I-2
(iii) all partial or full prepayments on the Mortgage Loans in the Loan
Group received during the related Remittance Period together with all related
Compensating Interest;
(iv) the related Unused Pre-Funding Amount;
(v) the related Capitalized Interest Requirement; and
(vi) amounts received for the Distribution Date as the Substitution
Adjustment Amount or purchase price of a Deleted Mortgage Loan in the Loan
Group or a Mortgage Loan in the Loan Group repurchased by the Seller or the
Master Servicer as of the Distribution Date.
The expenses are the sum of
(i) amounts in reimbursement for Advances previously made with respect
to the Mortgage Loans in the Loan Group and other amounts reimbursable to the
Master Servicer with respect to the Loan Group pursuant to the Agreement;
(ii) the Trustee's Fee allocated to the Loan Group; and
(iii) the Mortgage Insurance Premium.
Basic Principal Distribution Amount: For any Distribution Date and Loan
Group, the excess of (i) the related Principal Remittance Amount for the
Distribution Date over (ii) the related Excess Subordinated Amount for the
Distribution Date.
Basis Risk CarryForward Amount: For each Class of Group 1
Certificates, as of any Distribution Date before March 2004, the sum
of
(A) if on the Distribution Date the Pass-Through Rate for any Class of
Group 1 Certificates is based upon the Group 1 WAC Cap, the excess of
(i) the amount of interest that Class of Group 1 Certificates
would otherwise be entitled to receive on the Distribution Date had its
Pass-Through Rate not been subject to the Group 1WAC Cap over
(ii) the amount of interest payable on that Class of Group 1
Certificates at the Group 1 WAC Cap for the Distribution Date and
(B) the Basis Risk CarryForward Amount for that Class of Group 1
Certificates for all previous Distribution Dates not previously paid, together
with interest thereon at the then applicable Pass-Through Rate on that Class
of Group 1Certificates, without giving effect to the Group 1 WAC Cap.
After the February 2004 Distribution Date no further amounts will be
added to any Basis Risk Carryforward Amount for any Class of Group 1
Certificates, but any existing Basis Risk Carryforward Amount will continue to
be due until paid.
For each Class of Group 2 Certificates, as of any Distribution
Date, the sum of
I-3
(A) if on the Distribution Date the Pass-Through Rate for any Class of
Group 2 Certificates is based upon the Group 2 WAC Cap, the excess of
(i) the amount of interest that Class of Group 2 Certificates
would otherwise be entitled to receive on the Distribution Date had its
Pass-Through Rate been calculated as the sum of LIBOR and the applicable
Pass-Through Margin on that Class of Group 2 Certificates for the
Distribution Date, up to the Group 2 Maximum Cap over
(ii) the amount of interest payable on that Class of Group 2
Certificates at the Group 2 WAC Cap for the Distribution Date and
(B) the Basis Risk CarryForward Amount for that Class of Group 2
Certificates for all previous Distribution Dates not previously paid, together
with interest thereon at a rate equal to the sum of LIBOR and the applicable
Pass-Through Margin for that Class of Group 2 Certificates for the
Distribution Date, subject to the Group 2 Maximum Cap.
Any payment in reduction of the IO Cap CarryForward Amount will also be
credited at the moment paid in reduction of the Basis Risk CarryForward Amount
for the relevant Class.
Basis Risk Payment: For any Distribution Date, the lesser of the amounts
otherwise distributable on the Class X Certificates on the Distribution Date
and the sum of any Basis Risk CarryForward Amount, plus the Required Reserve
Amount for the Distribution Date, minus any IO Cap CarryForward paid on that
Distribution Date.
Basis Risk Shortfall: For a Loan Group and the Distribution Date is the
excess of the Basis Risk Payment for the Loan Group and the Distribution Date
over the remaining amount of Available Funds that would be available for
transfer to the Excess Reserve Fund for the Loan Group on the Distribution
Date under Section 4.02(I)(iii)(j) without taking into account the Pledged
Prepayment Penalty Amount for the Distribution Date.
Blanket Mortgage: The 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, or the
State of California, or the city in which the Corporate Trust Office of the
Trustee is located are authorized or obligated by law or executive order to be
closed.
Capitalized Interest Account: Either of the Group 1 Capitalized
Interest Account or the Group 2 Capitalized Interest Account.
Capitalized Interest Requirement: For the Distribution Date in
March 2001 and Loan Group 1, the product of
(a) one twelfth of the weighted average of the Adjusted Net Mortgage
Rates of the Mortgage Loans in Loan Group 1 as of the first day of the
calendar month preceding the Distribution Date and
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(b) the excess of the Pre-Funding Amount for Loan Group 1 on the
Closing Date over the Principal Balance of any Subsequent Mortgage Loan
transferred to the Trust Fund for Loan Group 1 during the related Due Period
or a prior Due Period that has a Monthly Payment due during the Due Period and
For the Distribution Date in March 2001 and Loan Group 2, the product of
(a) one twelfth of the weighted average of the Adjusted Net Mortgage
Rates of the Mortgage Loans in Loan Group 2 as of the first day of the
calendar month preceding the Distribution Date and
(b) the excess of the Pre-Funding Amount for Loan Group 2 on the
Closing Date over the Principal Balance of any Subsequent Mortgage Loan
transferred to the Trust Fund for Loan Group 2 during the related Due Period
or a prior Due Period that has a Monthly Payment due during the Due Period.
Certificate: Any one of the Certificates executed by the
Trustee in substantially the forms attached as exhibits.
Certificate Account: The separate Eligible Account or Accounts created
and maintained by the Master Servicer pursuant to Section 3.06(c) with a
depository institution in the name of the Master Servicer for the benefit of
the Trustee on behalf of Certificateholders and designated "IndyMac Bank,
F.S.B., in trust for the registered holders of Home Equity Mortgage Loan
Asset-Backed Certificates, Series SPMD 2001-A."
Certificate Balance: For any Class of Certificates (other than the Class
AF-IO and the Class X Certificates) at any date, the maximum dollar amount of
principal to which the Holders of the Certificates of the Class is then
entitled, such amount being equal to the Denomination of the Class minus all
distributions of principal previously made with respect thereto and in the
case of any Subordinated Certificates, reduced by any Applied Realized Loss
Amounts applicable to the Class of Subordinated Certificates. The Class AF-IO
and Class X Certificates have no Certificate Balance.
Certificate Group: Any of the Certificate Group 1 Certificates
or the Certificate Group 2 Certificates, as applicable.
Certificate Owner: Of a Book-Entry Certificate, the Person who
is the beneficial owner of the Book-Entry Certificate.
Certificate Register: The register maintained pursuant to
Section 5.02.
Certificateholder or Holder: The person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purpose of
giving any consent pursuant to this Agreement, any Certificate registered in
the name of the Depositor or any affiliate of the Depositor is not Outstanding
and the Percentage Interest evidenced thereby shall not be taken into account
in determining whether the requisite amount of Percentage Interests necessary
to
I-5
effect a consent has been obtained unless the Depositor or its affiliates
own 100% of the Percentage Interests evidenced by a Class of Certificates, in
which case the Certificates shall be Outstanding for purposes of any provision
of this Agreement requiring the consent of the Holders of Certificates of a
particular Class as a condition to the taking of any action. The Trustee is
entitled to rely conclusively on a certification of the Depositor or any
affiliate of the Depositor in determining which Certificates are registered in
the name of an affiliate of the Depositor.
Class: All Certificates bearing the same class designation as set forth
in the Preliminary Statement.
Class A Principal Distribution Amount: For each Loan Group and
any Distribution Date, the excess of
(i) the aggregate Class Certificate Balance of the Class A Certificates
for the related Certificate Group before the Distribution Date over
(ii) the lesser of
(A) 87.50% for Loan Group 1 and 90.00% for Loan Group 2, of the
aggregate Stated Principal Balance of the Mortgage Loans in the related
Loan Group as of the last day of the related Remittance Period and
(B) the Stated Principal Balances of the Mortgage Loans in the
related Loan Group as of the last day of the related Remittance Period
minus $815,000 for Loan Group 1 and $935,000 for Loan Group 2.
Class AF-IO Certificate: The Class AF-IO Certificates do not have
Certificate Principal Balances but will accrue interest at a rate of 7.00% per
annum on their Notional Amounts. The "Notional Amount" of the Class AF-IO will
be the sum of the notional balances of its two components: the Group 1 IO
Component and the Group 2 IO Component. The components comprising the Class
AF-IO Certificates may not be transferred separately from the certificates.
The Group 1 IO Component will have a notional balance on a Distribution Date
equal to the lesser of the aggregate Stated Principal Balance of the mortgage
loans in Loan Group 1 as of the last day of the related Remittance Period and
the amounts described below:
Distribution Notional Distribution Notional Distribution Notional
Dates Amount Dates Amount Dates Amount
------------ --------- ------------ -------- ------------ ---------
1-2......... $61,800,000 14...........$50,000,000 26.......... $22,200,000
3............ 61,400,000 15........... 46,400,000 27........... 20,700,000
4............ 60,900,000 16........... 43,300,000 28........... 19,500,000
5............ 60,400,000 17........... 40,300,000 29........... 18,500,000
6............ 59,700,000 18........... 37,500,000 30........... 17,500,000
7............ 59,000,000 19........... 34,900,000 31........... 16,600,000
8............ 58,100,000 20........... 32,700,000 32........... 15,700,000
9............ 57,200,000 21........... 30,700,000 33........... 14,900,000
10........... 56,200,000 22........... 28,700,000 34........... 14,100,000
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11........... 55,200,000 23........... 26,900,000 35........... 13,400,000
12........... 54,100,000 24........... 25,300,000 36........... 13,400,000
13........... 53,000,000 25........... 23,700,000 Thereafter 0
The Group 2 IO Component will have a notional balance on a Distribution
Date equal to the lesser of the aggregate Stated Principal Balance of the
mortgage loans in Loan Group 2 as of the last day of the related Remittance
Period and the amounts described below:
Distribution Notional Distribution Notional Distribution Notional
Dates Amount Dates Amount Dates Amount
------------ ----------- ------------ ----------- ----------- -----------
1-3......... $50,000,000 15.......... $25,300,000 27......... $9,300,000
4........... 47,500,000 16.......... 21,800,000 28......... 8,100,000
5........... 47,500,000 17.......... 20,800,000 29......... 7,400,000
6........... 47,500,000 18.......... 17,900,000 30......... 6,400,000
7........... 39,000,000 19.......... 16,200,000 31......... 5,700,000
8........... 39,000,000 20.......... 15,400,000 32......... 5,100,000
9........... 39,000,000 21.......... 13,200,000 33......... 4,400,000
10.......... 34,000,000 22.......... 12,500,000 34......... 3,900,000
11.......... 35,100,000 23.......... 10,800,000 35......... 3,300,000
12.......... 31,900,000 24.......... 11,400,000 36......... 2,400,000
13.......... 33,800,000 25.......... 11,400,000 Thereafter 0
14.......... 26,400,000 26.......... 10,000,000
Class B Principal Distribution Amount: For any Distribution Date on
which the Class Certificate Balances of the related Class A, Class M-1, and
Class M-2 Certificates have been reduced to zero, the Class B Principal
Distribution Amount is the lesser of (x) the Class Certificate Balance of the
Class B Certificates and (y) the related Principal Distribution Amount.
Otherwise, for each Loan Group and any Distribution Date, the excess of
(i) the sum for the related Certificate Group of
(A) the aggregate Class Certificate Balance of the related Class A
Certificates (after taking into account distribution of the Class A
Principal Distribution Amount on the Distribution Date),
(B) the Class Certificate Balance of the related Class M-1
Certificates (after taking into account distribution of the Class M-1
Principal Distribution Amount on the Distribution
Date),
(C) the Class Certificate Balance of the related Class M-2
Certificates (after taking into account distribution of the Class M-2
Principal Distribution Amount for the Distribution Date), and
(D) the Class Certificate Balance of the related Class B
Certificates before the Distribution Date over
(ii) the lesser of
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(A) 99.00% for Loan Group 1 and 99.00% for Loan Group 2, of the
aggregate Stated Principal Balance of the Mortgage Loans in the related
Loan Group as of the last day of the related Remittance Period and
(B) the Stated Principal Balances of the Mortgage Loans in the
related Loan Group as of the last day of the related Remittance Period
minus $815,000 for Loan Group 1 and $935,000 for Loan Group 2.
Class Certificate Balance: For any Class (other than the Class AF-IO
Certificates) as of any date of determination, the aggregate of the
Certificate Balances of all Certificates of the Class as of the date and for
the Class AF-IO Certificates on any date of determination, their aggregate
notional amount as of the date.
Class M-1 Principal Distribution Amount: For each Loan Group
and any Distribution Date, the excess of
(i) the sum for the related Certificate Group of
(A) the aggregate Class Certificate Balance of the related Class A
Certificates (after taking into account distribution of the Class A
Principal Distribution Amount on the Distribution Date), and
(B) the Class Certificate Balance of the related Class M-1
Certificates before the Distribution Date over
(ii) the lesser of
(A) 93.00% for Loan Group 1 and 94.50% for Loan Group 2, of the
aggregate Stated Principal Balance of the Mortgage Loans in the related
Loan Group as of the last day of the related Remittance Period and
(B) the Stated Principal Balances of the Mortgage Loans in the
related Loan Group as of the last day of the related Remittance Period
minus $815,000 for Loan Group 1 and $935,000 for Loan Group 2.
Class M-2 Principal Distribution Amount: For each Loan Group
and any Distribution Date, the excess of
(i) the sum for the related Certificate Group of
(A) the aggregate Class Certificate Balance of the related Class A
Certificates (after taking into account distribution of the Class A
Principal Distribution Amount on the Distribution Date),
(B) the Class Certificate Balance of the related Class M-1
Certificates (after taking into account distribution of the Class M-1
Principal Distribution Amount on the Distribution Date), and
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(C) the Class Certificate Balance of the related Class M-2
Certificates before the Distribution Date over
(ii) the lesser of
(A) 97.50% for Loan Group 1 and 98.50% for Loan Group 2, of the
aggregate Stated Principal Balance of the Mortgage Loans in the related
Loan Group as of the last day of the related Remittance Period and
(B) the Stated Principal Balances of the Mortgage Loans in the
related Loan Group as of the last day of the related Remittance Period
minus $815,000 for Loan Group 1 and $935,000 for Loan Group 2.
Class X Distributable Amount: On any Distribution Date, the amount of
interest that has accrued on the Class XF and Class XV Regular Interests but
that has not been distributed on the Class X Certificates on prior
Distribution Dates.
Closing Date: February 28, 2001.
Code: The Internal Revenue Code of 1986, including any
successor or amendatory provisions.
Collateral Value: For any Mortgage Loan, the Collateral Value of the
related Mortgaged Property shall be, other than for Mortgage Loans the
proceeds of which were used for a Refinance Loan, the lesser of (i) the
appraised value determined in an appraisal obtained by the originator at
origination of the Mortgage Loan and (ii) the sales price for the Mortgaged
Property. In the case of Refinance Loans, the Collateral Value of the related
Mortgaged Property is their appraised value determined in an appraisal
obtained at the time of refinancing.
Collection Account: As defined in Section 3.06(b).
Combined Loan-to-Value Ratio: For any Mortgage Loan at any
time, the ratio of
(i) the sum of (a) the original principal balance of the Mortgage Loan
and (b) the outstanding principal balance at the date of origination of the
Mortgage Loan of any senior mortgage loan, or in the case of any open-ended
senior mortgage loan, the maximum available line of credit with respect to the
Mortgage Loan at origination, regardless of any lesser amount actually
outstanding at the date of origination of the Mortgage Loan, to
(ii) the Collateral Value of the Mortgage Loan.
Compensating Interest: For any Distribution Date, 0.25% multiplied by
one-twelfth multiplied by the aggregate Stated Principal Balance of the
Mortgage Loans as of the first day of the prior month.
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
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governs the Cooperative Property, which Cooperative Corporation must qualify
as a Cooperative Housing Corporation under Section 216 of the Code.
Coop Shares: Shares issued by a Cooperative Corporation.
Cooperative Loan: Any Mortgage Loan secured by Coop Shares and
a Proprietary Lease.
Cooperative Property: The real property and improvements owned by the
Cooperative Corporation, including the allocation of individual dwelling units
to the holders of the Coop Shares of the Cooperative Corporation.
Cooperative Unit: A single family dwelling located in a
Cooperative Property.
Corporate Trust Office: The designated office of the Trustee in the
State of California at which at any particular time its corporate trust
business with respect to this Agreement is administered, which office at the
date of the execution of this Agreement is located at 0000 Xxxx Xx. Xxxxxx
Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000, Attn: Mortgage Administration-INO1C1
(IndyMac ABS, Inc., Home Equity Mortgage Loan Asset-Backed Trust, Series SPMD
2001-A), facsimile no. (000) 000-0000 and which is the address to which
notices to and correspondence with the Trustee should be directed.
Corresponding Class: The class of interests in the Lower Tier REMIC
created under this Agreement that correspond to the Class of interests in the
Upper Tier REMIC and to a Class of Certificates as follows:
REMIC 2 Lower Tier Upper Tier Corresponding
Class Designation Interest Certificate
----------------- ----------- -------------
Class LT2-AF-1 Class AF-1 Class AF-1
Class LT2-AF-2 Class AF-2 Class AF-2
Class LT2-AF-3 Class AF-3 Class AF-3
Class LT2-AF-4 Class AF-4 Class AF-4
Class LT2-AF-5 Class AF-5 Class AF-5
Class LT2-AF-6 Class AF-6 Class AF-6
Class LT2-IO-F1 - Group 1 IO Class AF-IO
Class LT2-IO-F34
Class LT2-MF-1 Class MF-1 Class MF-1
Class LT2-MF-2 Class MF-2 Class MF-2
Class LT2-BF Class BF Class BF
Class LT2-AV Class AV Class AV
Class LT2-IO-V1 - Group 2 IO Class AF-IO
Class LT2-IO-V26
Class LT2-MV-1 Class MV-1 Class MV-1
Class LT2-MV-2 Class MV-2 Class MV-2
Class LT2-BV Class BV Class BV
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Cut-off Date: For each Initial Mortgage Loan, February 1, 2001; for each
Subsequent Mortgage Loan, the later of its date of origination and March 1,
2001.
Cut-off Date Pool Principal Balance: For any Cut-off Date, the aggregate
Stated Principal Balance of all Mortgage Loans as of that date.
Cut-off Date Principal Balance: As to any Mortgage Loan, its Stated
Principal Balance as of the close of business on the related Cut-off Date.
Debt Service Reduction: For any Mortgage Loan, a reduction by a court of
competent jurisdiction in a proceeding under the Bankruptcy Code in the
Scheduled Payment for the Mortgage Loan that became final and non-appealable,
except a reduction resulting from a Deficient Valuation or that results in a
permanent forgiveness of principal.
Debt Service Reduction Mortgage Loan: Any Mortgage Loan that became the
subject of a Debt Service Reduction.
Defective Mortgage Loan: Any Mortgage Loan that is required to be
repurchased pursuant to Section 2.02 or 2.03.
Deficient Valuation: For any Mortgage Loan, a valuation by a court of
competent jurisdiction of the Mortgaged Property in an amount less than the
then outstanding indebtedness under the Mortgage Loan, or any reduction in the
amount of principal to be paid in connection with any Scheduled Payment that
results in a permanent forgiveness of principal, which valuation or reduction
results from an order of the court that is final and non-appealable in a
proceeding under the Bankruptcy Code.
Definitive Certificates: Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 5.02(e).
Delay Certificates: As specified in the Preliminary Statement.
Delay Delivery Mortgage Loans: (i) The Initial Mortgage Loans identified
on the Mortgage Loan Schedule for which all or a portion of a related Mortgage
File is not delivered to the Trustee by the Closing Date, and (ii) all
Subsequent Mortgage Loans. The Depositor shall deliver the Mortgage Files to
the Trustee:
(A) for at least 70% of the Initial Mortgage Loans, not later than the
Closing Date,
(B) for the remaining 30% of the Initial Mortgage Loans, not later than
five Business Days after the Closing Date,
(C) for at least 90% of the Subsequent Mortgage Loans conveyed on a
Subsequent Transfer Date, not later than twenty-one days after the Subsequent
Transfer Date, and
(D) for the remaining 10% of the Subsequent Mortgage Loans conveyed on
the related Subsequent Transfer Date, not later than thirty days after the
relevant Subsequent Transfer Date. To the extent that the Seller is in
possession of any Mortgage Files for any Delay Delivery
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Loan, until delivery of the Mortgage File to the Trustee as provided in
Section 2.01, the Seller shall hold the files as Master Servicer, as agent and
in trust for the Trustee.
Deleted Mortgage Loan: As defined in Section 2.03(c).
Denomination: For each Certificate, the amount on the face of
the Certificate as the "Initial Certificate Balance of this
Certificate" or the Percentage Interest appearing on the face of the
Certificate.
Depositor: IndyMac ABS, Inc., a Delaware corporation, or its
successor in interest.
Depository: The initial Depository shall be The Depository Trust
Company, the nominee of which is CEDE & Co., as the registered Holder of the
Book-Entry Certificates. The Depository shall at all times be a "clearing
corporation" as defined in Section 8-102(a)(5) of the Uniform Commercial Code
of the State of New York.
Depository Participant: A broker, dealer, bank, or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: As to any Distribution Date, the 18th day of each
month or if that day is not a Business Day the next Business Day, except that
if the next Business Day is less than two Business Days before the related
Distribution Date, then the Determination Date shall be the Business Day
preceding the 18th day of the month.
Distribution Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.06(e) in the name of the
Trustee for the benefit of the Certificateholders and designated "Bankers
Trust Company of California, N.A. in trust for registered holders of IndyMac
Home Equity Mortgage Loan Asset-Backed Certificates, Series SPMD 2001-A."
Funds in the Distribution Account shall be held in trust for the
Certificateholders for the uses and purposes set forth in this Agreement.
Distribution Account Deposit Date: As to any Distribution Date, 12:30
P.M. Pacific time on the Business Day preceding the Distribution Date.
Distribution Date: The 25th day of each calendar month after the initial
issuance of the Certificates, or if that day is not a Business Day, the next
Business Day, commencing in March 2001.
Due Date: For any Mortgage Loan, the first day of the month in which the
related Scheduled Payment is due.
Eligible Account: Any of
(i) an account maintained with a federal or state chartered depository
institution or trust company the short-term unsecured debt obligations of
which (or, in the case of a depository institution or trust company that is
the principal subsidiary of a holding company, the debt obligations of the
holding company, but only if Xxxxx'x is not a Rating Agency) have the
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highest short-term ratings of each Rating Agency at the time any amounts are
held on deposit therein, or
(ii) an account in a depository institution or trust company that is
insured by the FDIC or the SAIF (to the limits established by the FDIC or the
SAIF) and the uninsured deposits in which accounts are otherwise secured such
that, as evidenced by an Opinion of Counsel delivered to the Trustee and to
each Rating Agency, the Certificateholders have a claim on the funds in the
account or a perfected first priority security interest against any collateral
(which shall be limited to Permitted Investments) securing the funds in the
account that is superior to claims of any other depositors or creditors of the
depository institution or trust company in which the account is maintained, or
(iii) a trust account or accounts maintained with the trust department
of a federal or state chartered depository institution or trust company,
acting in its fiduciary capacity, or
(iv) any other account acceptable to each Rating Agency.
Eligible Accounts may bear interest, and may include, if otherwise qualified
under this definition, accounts maintained with the Trustee.
ERISA: The Employee Retirement Income Security Act of 1974.
ERISA-Qualifying Underwriting: A best efforts or firm
commitment underwriting or private placement that meets the
requirements of Prohibited Transaction Exemption 2000-58, 65 Fed.
Reg. 67765 (2000) (or any successor thereto), or any substantially
similar administrative exemption granted by the U.S. Department of
Labor.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
Escrow Account: The Eligible Account or Accounts established
and maintained pursuant to Section 3.07(a).
Event of Default: As defined in Section 7.01.
Excess Proceeds: For any Liquidated Mortgage Loan, the excess
of
(a) all Liquidation Proceeds from the Mortgage Loan received in the
calendar month in which the Mortgage Loan became a Liquidated Mortgage Loan,
net of any amounts previously reimbursed to the Master Servicer as
Nonrecoverable Advances with respect to the Mortgage Loan pursuant to Section
3.09(a)(ii), over
(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.
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Excess Reserve Fund Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.06(d) in the name of the
Trustee for the benefit of the Certificateholders and designated "Bankers
Trust Company of California, N.A. in trust for registered holders of IndyMac
Home Equity Mortgage Loan Asset-Backed Trust, Series SPMD 2001-A." Funds in
the Excess Reserve Fund Account shall be held in trust for the
Certificateholders for the uses and purposes set forth in this Agreement. The
Excess Reserve Fund Account will not be an asset of any REMIC.
Excess Subordinated Amount: For a Certificate Group and any Distribution
Date, the excess of (a) the related Subordinated Amount on the Distribution
Date over (b) the related Specified Subordinated Amount for the Distribution
Date.
Expense Fees: As to each Mortgage Loan, the sum of the related Master
Servicing Fee, Servicing Fee, Trustee Fee, and any lender-paid primary
mortgage insurance premium.
Expense Fee Rate: As to each Mortgage Loan, the sum of the related
Master Servicing Fee Rate, Servicing Fee Rate, Trustee Fee Rate, and the rate
at which lender-paid primary mortgage insurance premiums are calculated.
Extra Principal Distribution Amount: As of any Distribution Date after
the Distribution Date in March 2001 and either Certificate Group, the lesser
of (x) the related Total Monthly Excess Spread for the Distribution Date and
(y) the related Subordination Deficiency for the Distribution Date.
FDIC: The Federal Deposit Insurance Corporation, or any
successor thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of
the Emergency Home Finance Act of 1970, as amended, or any successor thereto.
Final Scheduled Payment Date: The Final Scheduled Payment Date
for each Class of Certificates is:
Final Scheduled
Payment Date
----------------------
Class AF-1 Certificates.................................. June 25, 2018
Class AF-2 Certificates.................................. October 25, 2023
Class AF-3 Certificates.................................. November 25, 2026
Class AF-4 Certificates.................................. September 25, 2029
Class AF-5 Certificates.................................. March 25, 2031
Class AF-6 Certificates.................................. November 25,2030
Class AF-IO Certificates................................. February 25,2004
Class MF-1 Certificates.................................. March 25, 2031
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Class MF-2 Certificates.................................. March 25, 2031
Class BF Certificates.................................... March 25, 2031
Class AV Certificates.................................... March 25, 2031
Class MV-1 Certificates.................................. March 25, 2031
Class MV-2 Certificates.................................. March 25, 2031
Class BV Certificates.................................... March 25, 2031
Class R Certificates..................................... March 25, 2031
FIRREA: The Financial Institutions Reform, Recovery and
Enforcement Act of 1989.
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., Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, XX 00000,
Attention: MBS Monitoring - IndyMac SPMD 2001-A, or any other address
Fitch furnishes to the Depositor and the Master Servicer.
FNMA: The Federal National Mortgage Association, a federally chartered
and privately owned corporation organized and existing under the Federal
National Mortgage Association Charter Act, or any successor thereto.
Group 1 Certificates: As specified in the Preliminary Statement.
Group 1 Capitalized Interest Account: The separate Eligible Account
created and maintained by the Trustee pursuant to Section 3.06 in the name of
the Trustee for the benefit of the Certificateholders and designated "Bankers
Trust Company of California, N.A., in trust for registered holders of IndyMac
Home Equity Mortgage Loan Asset-Backed Certificates, Series SPMD 2001-A."
Funds in the Group 1 Capitalized Interest Account (other than investment
income) shall be held in trust for the Certificateholders for the uses and
purposes in this Agreement and shall not be a part of any REMIC created under
this Agreement. Any investment income earned from Permitted Investments made
with funds in the Group 1 Capitalized Interest Account will be for the account
of the Seller.
Group 1 Pre-Funding Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.06 in the name of the Trustee
for the benefit of the Certificateholders and designated "Bankers Trust
Company of California, N.A., in trust for registered holders of IndyMac Home
Equity Mortgage Loan Asset-Backed Certificates, Series SPMD 2001-A" allocated
for the purchase of Subsequent Mortgage Loans to be included in Loan Group 1.
Funds in the Group 1 Pre-Funding Account shall be held in trust for the
Certificateholders for the uses and purposes set forth in this Agreement and
shall not be a part of any REMIC created under this Agreement.
Group 1 WAC Cap: For the Mortgage Loans in Loan Group 1 as of any
Distribution Date, the weighted average of the Adjusted Net Mortgage Rates in
effect on the beginning of
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the related Remittance Period for the Mortgage Loans minus, for the first 36
distribution dates only, the product of (a) 7.00 % and (b) the Group 1 IO
Component notional balance divided by the Group 1 aggregate Stated Principal
Balances as of the opening of business on the first day of the related
Remittance Period.
Group 2 Certificates: As specified in the Preliminary Statement.
Group 2 Capitalized Interest Account: The separate Eligible Account
created and maintained by the Trustee pursuant to Section 3.06 in the name of
the Trustee for the benefit of the Certificateholders and designated "Bankers
Trust Company of California, N.A., in trust for registered holders of IndyMac
Home Equity Mortgage Loan Asset-Backed Certificates, Series SPMD 2001-A."
Funds in the Group 2 Capitalized Interest Account (other than investment
income) shall be held in trust for the Certificateholders for the uses and
purposes in this Agreement and shall not be a part of any REMIC created under
this Agreement. Any investment income earned from Permitted Investments made
with funds in the Group 2 Capitalized Interest Account will be for the account
of the Seller.
Group 2 Pre-Funding Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.05 in the name of the Trustee
for the benefit of the Certificateholders and designated "Bankers Trust
Company of California, N.A., in trust for registered holders of IndyMac Home
Equity Mortgage Loan Asset-Backed Certificates, Series SPMD 2001-A" allocated
for the purchase of Subsequent Mortgage Loans to be included in Loan Group 2.
Funds in the Group 2 Pre-Funding Account shall be held in trust for the
Certificateholders for the uses and purposes set forth in this Agreement and
shall not be a part of any REMIC created under this Agreement.
Group 2 Maximum Cap: For the Mortgage Loans in Loan Group 2 as of any
Distribution Date, the weighted average of the Maximum Rates on the Mortgage
Loans in Loan Group 2 less the weighted average Expense Fee Rate, and minus
for the first 36 distribution dates only, the product of (1) 7.00 % and (2)
the Group 2 IO Component notional balance divided by the Group 2 aggregate
Stated Principal Balances as of the opening of business on the first day of
the related Remittance Period.
Group 2 WAC Cap: For the Mortgage Loans in Loan Group 2 as of any
Distribution Date, the product of (i) the weighted average of the Adjusted Net
Mortgage Rates then in effect at the beginning of the related Remittance
Period on the Mortgage Loans in Loan Group 2 minus for the first 36
distribution dates only, the product of (1) 7.00 % and (2) the Group 2 IO
Component notional balance divided by the Group 2 aggregate Stated Principal
Balances as of the opening of business on the first day of the related
Remittance Period, and (ii) a fraction whose numerator is 30 and whose
denominator is the actual number of days in the Interest Accrual Period for
the Group 2 Certificates related to the Distribution Date.
Index: As to each Mortgage Loan in Loan Group 2, the index from time to
time in effect for the adjustment of the Mortgage Rate set forth as such on
the related Mortgage Note.
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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 Mortgage Loan: Such of the mortgage loans transferred and
assigned to the Trustee pursuant to the provisions hereof, as from time to
time are held as a part of the Trust Fund (including any REO Property), the
mortgage loans so held being identified on the Mortgage Loan Schedule as of
the Closing Date, notwithstanding foreclosure or other acquisition of title of
the related Mortgaged Property.
Insurance Policy: For any Mortgage Loan included in the Trust Fund, any
insurance policy, including all riders and endorsements thereto in effect,
including any replacement policy or policies for any Insurance Policies.
Insurance Proceeds: Proceeds paid by an insurer pursuant to any
Insurance Policy, in each case other than any amount included in such
Insurance Proceeds in respect of Insured Expenses.
Insured Expenses: Expenses covered by an Insurance Policy or any other
insurance policy with respect to the Mortgage Loans.
Interest Accrual Period: For each Class of Delay Certificates and the
Corresponding Class of REMIC 2 Lower Tier Interests and for each Class of
REMIC 1 Lower Tier Interest, and any Distribution Date, the calendar month
before the month of the Distribution Date. For purposes of computing accrual
of interest on each Class of Delay Certificates and the Corresponding Class of
REMIC 2 of Lower Tier Interests and for each Class of REMIC 1 Lower Tier
Interest, each month is assumed to have 30 days and each year is assumed to
have 360 days. For each Class of Non-Delay Certificates and the Corresponding
Class of REMIC 2 Lower Tier Regular Interests and any Distribution Date, the
period from the Distribution Date in the month preceding the month in which
the Distribution Date occurs to the Distribution Date (or in the case of the
first Distribution Date, the period from the Closing Date to the first
Distribution Date). For purposes of computing interest accruals on each Class
of Non-Delay Certificates and the Corresponding Class of REMIC 2 Lower Tier
Regular Interests, each Interest Accrual Period has the actual number of days
in the month and each year is assumed to have 360 days.
"IO Cap CarryForward" for any class of certificates on any Distribution
Date is the portion of any Basis Risk CarryForward Amounts for the class that
would not have been incurred if the Group 1 WAC Cap or the Group 2 WAC Cap, as
applicable, had not included a reduction in the cap for the product of (a)
7.00% and (b) the Group 1 IO Component notional balance or Group 2 IO
Component notional balance, as applicable, divided by the Loan Group 1 or Loan
Group 2, as applicable, Stated Principal Balances as of the opening of
business on the first day of the related Remittance Period. Any payment in
reduction of the IO Cap CarryForward Amount will also be credited at the
moment paid in reduction of the Basis Risk CarryForward Amount for the
relevant Class.
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Lender PMI Loans: Mortgage Loans with respect to which the lender rather
than the borrower acquired the primary mortgage guaranty insurance and charged
the related borrower an interest premium.
LIBOR: For any Interest Accrual Period for the LIBOR Certificates, the
rate determined by the Trustee on the related LIBOR Determination Date on the
basis of the offered rate for one-month U.S. dollar deposits that appears on
Telerate Page 3750 as of 11:00 a.m. (London time) on that date. If the rate
does not appear on Telerate Page 3750, the rate for that date will be
determined on the basis of the rates at which one-month U.S. dollar deposits
are offered by the Reference Banks at approximately 11:00 A.M. (London time)
on that date to prime banks in the London interbank market. In that case, the
Trustee will request the principal London office of each of the Reference
Banks to provide a quotation of its rate. If at least two quotations are so
provided, the rate for that date will be the arithmetic mean of the quotations
(rounded upwards if necessary to the nearest whole multiple of 1/16%). If
fewer than two quotations are provided as requested, the rate for that date
will be the arithmetic mean of the rates quoted by major banks in New York
City, selected by the Master Servicer, at approximately 11:00 A.M. (New York
City time) on that date for one-month U.S. dollar loan to leading European
banks.
LIBOR Certificates: As specified in the Preliminary Statement.
LIBOR Determination Date: For any Interest Accrual Period for the LIBOR
Certificates, the second London Business Day preceding the commencement of the
Interest Accrual Period.
Liquidated Mortgage Loan: For any Distribution Date, a defaulted
Mortgage Loan (including any REO Property) that was liquidated in the calendar
month preceding the month of the Distribution Date and as to which the Master
Servicer has certified (in accordance with this Agreement) that it has
received all amounts it expects to receive in connection with the liquidation
of the Mortgage Loan, including the final disposition of an REO Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds regardless
of when received, received in connection with the partial or complete
liquidation of defaulted Mortgage Loans, whether through trustee's sale,
foreclosure sale, or otherwise or amounts received in connection with any
condemnation or partial release of a Mortgaged Property, and any other
proceeds received in connection with an REO Property, less the sum of related
unreimbursed Servicing Fees, Servicing Advances, and Advances.
Loan Group: Any of Loan Group 1 or Loan Group 2, as applicable.
Loan Group 1: All Mortgage Loans that have Mortgage Rates that
are fixed.
Loan Group 2: All Mortgage Loans that have Mortgage Rates that
are adjustable.
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
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that date of determination and whose denominator is the Collateral Value of
the related Mortgaged Property.
Lockout Percentage: The indicated percentage for the indicated
Distribution Dates:
Distribution Dates Percentage
------------------ -----------
March 2001 through February 2004........................0%
March 2004 through February 2006 ......................45%
March 2006 through February 2007 ......................80%
March 2007 through February 2008 .....................100%
March 2008 and thereafter ............................300%
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.
Lower Tier Adjustable Rate Regular Interest: Each of the Class LT2-AV,
Class LT2-MV-1, Class LT2-MV-2, Class BV, and Class LT2-Q Interests as
described in the Preliminary Statement.
Lower Tier Fixed Rate Regular Interest: Each of the Class LT2-AF-1,
Class LT2-AF-2, Class LT2-AF-3, Class LT2-AF-4, Class LT2-AF-5, Class
LT2-AF-6, Class LT2-MF-1, Class LT2-MF-2, Class LT2-BF, and Class LT2-D
Interests as described in the Preliminary Statement.
Lower Tier Interests: As described in the Preliminary Statement.
Lower Tier REMIC: Each off REMIC 1 and REMIC 2, as described in
the Preliminary Statement
Maintenance: For any Cooperative Unit, the rent paid by the
Mortgagor to the Cooperative Corporation pursuant to the Proprietary
Lease.
Majority in Interest: As to any Class of Regular Certificates, the
Holders of Certificates of the Class evidencing, in the aggregate, at least
51% of the Percentage Interests evidenced by all Certificates of the Class.
Margin: As to each Mortgage Loan in Loan Group 2, the percentage amount
set forth on the related Mortgage Note added to the Index in calculating its
Mortgage Rate.
Master Servicer: IndyMac Bank, F.S.B., a federal savings bank,
and its successors and assigns, in its capacity as master servicer
under this Agreement.
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Master Servicer Advance Date: As to any Distribution Date,
12:30 P.M. Pacific time on the Business Day preceding the
Distribution Date.
Master Servicing Fee: As to each Mortgage Loan and any Distribution
Date, one month's interest at the related Master Servicing Fee Rate on the
Stated Principal Balance of the Mortgage Loan or, in the event of any payment
of interest which accompanies a Principal Prepayment in Full made by the
Mortgagor, interest at the Master Servicing Fee Rate on the Stated Principal
Balance of the Mortgage Loan for the period covered by the payment of
interest, subject to reduction as provided in Section 3.15.
Master Servicing Fee Rate: For each Mortgage Loan, zero.
Maximum Rate: As to any Mortgage Loans in Loan Group 2, the
maximum rate in the related Mortgage Note at which interest can
accrue on the Mortgage Loan.
MGIC: Mortgage Guaranty Insurance Corporation, a Wisconsin
corporation.
Modified Mortgage Loan: Any Mortgage Loan that the Master
Servicer has modified pursuant to Section 3.12(c).
Monthly Statement: The statement delivered to the
Certificateholders pursuant to Section 4.06.
Moody's: If Xxxxx'x 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 Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Residential Loan Monitoring Group, or any other address that
Moody's furnishes to the Depositor and the Master Servicer.
Mortgage: The mortgage, deed of trust, or other instrument creating a
first or second lien on an estate in fee simple or leasehold interest in real
property securing a Mortgage Note.
Mortgage File: The mortgage documents listed in Section 2.01 pertaining
to a particular Mortgage Loan and any additional documents delivered to the
Trustee to be added to the Mortgage File pursuant to this Agreement.
Mortgage Loans: Such of the mortgage loans transferred and assigned to
the Trustee pursuant to either (i) this Agreement or (ii) a Subsequent
Transfer Agreement and 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 of Mortgage Loans in
Schedule I included in the Trust Fund on that date, separately identifying the
Initial Mortgage Loans and the Subsequent Mortgage Loans. The Mortgage Loan
Schedule shall be prepared by the Seller and shall set forth the following
information with respect to each Mortgage Loan:
(i) the loan number;
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(ii) the Mortgagor's name and the street address of the
Mortgaged Property, including the zip code;
(iii) the maturity date;
(iv) the original principal balance;
(v) the Cut-off Date Principal Balance;
(vi) the first payment date of the Mortgage Loan;
(vii) the Scheduled Payment in effect as of the related Cut-off
Date;
(viii) the Loan-to-Value Ratio or Combined Loan-to-Value
(as applicable) 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) with respect to the Mortgage Loans in Loan Group 2:
(a) the Maximum Rate; (b) the Periodic Rate Cap; (c) the
Adjustment Date; and (d) the Margin;
(xv) a code indicating whether the Mortgage Loan is a
Performance Loan;
(xvi) a code indicating whether the Mortgage Loan is a
borrower-paid mortgage insurance loan;
(xvii) the Servicing Fee Rate;
(xviii) a code indicating whether the Mortgage Loan is a Lender
PMI Loan;
(xix) the coverage amount of any mortgage insurance;
(xx) with respect to the Lender PMI Loans, the Lender PMI fee
premium;
(xxi) a code indicating whether the Mortgage Loan is one for
which the Trust Fund is acquiring and paying for primary
mortgage guaranty insurance from MGIC; and
(xxii) a code indicating whether the Mortgage Loan is a Delay
Delivery Mortgage Loan.
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The schedule shall also set forth the total of the amounts described under (v)
above for all of the Mortgage Loans.
Mortgage Note: The original executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
Mortgage Rate: The annual rate of interest borne by a Mortgage Note from
time to time.
Mortgaged Property: The underlying property securing a Mortgage Loan,
which, with respect to a Cooperative Loan, is the related Coop Shares and
Proprietary Lease.
Mortgagor: The obligors on a Mortgage Note.
Net Prepayment Interest Shortfall: For any Distribution Date and any
Loan Group, the excess of the sum of the Prepayment Interest Shortfalls with
respect to the Loan Group over the sum of the Compensating Interest payments
made on the Distribution Date with respect to the Loan Group.
Non-Delay Certificates: As specified in the Preliminary
Statement.
Nonrecoverable Advance: Any portion of an Advance previously made or
proposed to be made by the Master Servicer, that, in the good faith judgment
of the Master Servicer, will not be ultimately recoverable by the Master
Servicer from the related Mortgagor, related Liquidation Proceeds or
otherwise.
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 on its presentation and surrender.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: A certificate (i) signed by the Chairman of the
Board, the Vice Chairman of the Board, the President, a Managing Director, a
Vice President (however denominated), an Assistant Vice President, the
Treasurer, the Secretary, or one of the Assistant Treasurers or Assistant
Secretaries of the Depositor or the Master Servicer, or (ii) if provided for
in this Agreement, signed by a Servicing Officer, as the case may be, and
delivered to the Depositor and the Trustee as required by this Agreement.
Opinion of Counsel: For the interpretation or application of the REMIC
Provisions, counsel must (i) in fact be independent of the Depositor and the
Master Servicer, (ii) not have any direct financial interest in the Depositor
or the Master Servicer or in any affiliate of either, and (iii) not be
connected with the Depositor or the Master Servicer as an officer, employee,
promoter, underwriter, trustee, partner, director, or person performing
similar functions. Otherwise, Opinion of Counsel is a written opinion of
counsel, who may be counsel for the Depositor or the Master Servicer,
including in-house counsel, reasonably acceptable to the Trustee;
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Optional Termination: The termination of the Trust Fund created
hereunder in connection with the purchase of the Mortgage Loans pursuant to
Section 9.01(a).
Optional Termination Date: The Distribution Date on which the assets of
the Trust Fund decline to 10% or less of the Cut-off Date Principal Balances
of the Mortgage Loans.
Original Mortgage Loan: The Mortgage Loan refinanced in connection with
the origination of a Refinance Loan.
OTS: The Office of Thrift Supervision.
Outstanding: For the Certificates as of any date of
determination, all Certificates theretofore executed and
authenticated under this Agreement except:
(i) Certificates theretofore canceled by the Trustee or delivered
to the Trustee for cancellation; and
(ii) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered by the Trustee pursuant to
this Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan with a
Stated Principal Balance greater than zero that was not the subject of a
Principal Prepayment in Full before the Due Date and that did not become a
Liquidated Mortgage Loan before the Due Date.
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 Margin: For each Class of Adjustable Rate Certificates, the
following percentages: Class AV Certificates, 0.26%; Class MV-1 Certificates,
0.61%; Class MV-2 Certificates, 1.15%; and Class BV Certificates, 2.50%.
Following the Optional Termination Date, the Pass-Through Margin for the Class
AV Certificates shall be 2 times their initial margin and the Pass-Through
Margin for Group 2 Subordinated Certificates shall be 1.5 times their initial
margin.
Pass-Through Rate: For each Class of Certificates and each Lower Tier
Interest, the per annum rate set forth or calculated in the manner described
in the Preliminary Statement.
Percentage Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class,
the percentage interest being set forth on their 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 Loan: Mortgage Loans that provide borrowers the potential of
margin reduction for good payment history. If, at the time of evaluation, the
related borrower has made scheduled payments in full since the origination of
the loan with a maximum of one late payment (which, however, cannot be in the
month of evaluation) the Mortgage Loan is eligible
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for a reduction (ranging from 0.50% to 1.00%) in the margin used to calculate
the Mortgage Rate.
Periodic Rate Cap: As to any Mortgage Loan in Loan Group 2 and any
Adjustment Date, the maximum percentage increase or decrease to the related
Mortgage Rate on the Adjustment Date, as specified in the related Mortgage
Note.
Permitted Investments: At any time, any of the following:
(i) obligations of the United States or any agency thereof backed by the
full faith and credit of the United States;
(ii) general obligations of or obligations guaranteed by any state of
the United States or the District of Columbia receiving the highest long-term
debt rating of each Rating Agency, or any lower rating that will not result in
the downgrading or withdrawal of the ratings then assigned to the Certificates
by the Rating Agencies, as evidenced by a signed writing delivered by each
Rating Agency;
(iii) commercial or finance company paper that is then receiving the
highest commercial or finance company paper rating of each Rating Agency, or
any lower rating that will not result in the downgrading or withdrawal of the
ratings then assigned to the Certificates by the Rating Agencies, as evidenced
by a signed writing delivered by each Rating Agency;
(iv) certificates of deposit, demand or time deposits, or bankers'
acceptances issued by any depository institution or trust company incorporated
under the laws of the United States or of any state thereof and subject to
supervision and examination by federal or state banking authorities, provided
that the commercial paper or long-term unsecured debt obligations of the
depository institution or trust company (or in the case of the principal
depository institution in a holding company system, the commercial paper or
long-term unsecured debt obligations of the holding company, but only if
Xxxxx'x is not a Rating Agency) are then rated one of the two highest
long-term and the highest short-term ratings of each Rating Agency for the
securities, or any lower rating that will not result in the downgrading or
withdrawal of the ratings then assigned to the Certificates by the Rating
Agencies, as evidenced by a signed writing delivered by each Rating Agency;
(v) demand or time deposits or certificates of deposit issued by any
bank or trust company or savings institution to the extent that the deposits
are fully insured by the FDIC;
(vi) guaranteed reinvestment agreements issued by any bank, insurance
company, or other corporation acceptable to the Rating Agencies at the time of
the issuance of the agreements, as evidenced by a signed writing delivered by
each Rating Agency;
(vii) repurchase obligations with respect to any security described in
clauses (i) and (ii) above, in either case entered into with a depository
institution or trust company (acting as principal) described in clause (iv)
above;
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(viii) securities (other than stripped bonds, stripped coupons, or
instruments sold at a purchase price in excess of 115% of their face amount)
bearing interest or sold at a discount issued by any corporation incorporated
under the laws of the United States or any state thereof that, at the time of
the investment, have one of the two highest ratings of each Rating Agency
(except if the Rating Agency is Moody's the rating shall be the highest
commercial paper rating of Moody's for the securities), or any lower rating
that will not result in the downgrading or withdrawal of the ratings then
assigned to the Certificates by the Rating Agencies, as evidenced by a signed
writing delivered by each Rating Agency;
(ix) units of a taxable money-market portfolio having the highest rating
assigned by each Rating Agency (except (i) if Fitch is a Rating Agency and has
not rated the portfolio, the highest rating assigned by Moody's and (ii) if
S&P is a Rating Agency, "AAAm" or "AAAM-G" by S&P) and restricted to
obligations issued or guaranteed by the United States of America or entities
whose obligations are backed by the full faith and credit of the United States
of America and repurchase agreements collateralized by such obligations; and
(x) any other investments bearing interest or sold at a discount
acceptable to each Rating Agency that will not result in the downgrading or
withdrawal of the ratings then assigned to the Certificates by the Rating
Agencies, as evidenced by a signed writing delivered by each Rating Agency.
No Permitted Investment may evidence the right to receive interest only
payments with respect to the obligations underlying the instrument.
Permitted Transferee: Any person other than
(i) the United States, any State or political subdivision thereof, or
any agency or instrumentality of any of the foregoing,
(ii) a foreign government, International Organization, or any agency or
instrumentality of either of the foregoing,
(iii) an organization (except certain farmers' cooperatives described in
section 521 of the Code) that is exempt from tax imposed by Chapter 1 of the
Code (including the tax imposed by section 511 of the Code on unrelated
business taxable income) on any excess inclusions (as defined in section
860E(c)(1) of the Code) with respect to any Residual Certificate,
(iv) rural electric and telephone cooperatives described in section
1381(a)(2)(C) of the Code,
(v) a Person that is not a U.S. Person, and
(vi) any other Person so designated by the Depositor based on an Opinion
of Counsel that the Transfer of an Ownership Interest in a Residual
Certificate to the Person may cause either REMIC to fail to qualify as a REMIC
at any time that the Certificates are outstanding.
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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.
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.
Pledged Prepayment Penalty Amount: For a Loan Group and the Distribution
Date is the lesser of the Basis Risk Shortfall for the Loan Group and the
Distribution Date and the amount of the Prepayment Charges collected on the
Mortgage Loans of the Loan Group during the related Remittance Period.
Pool Stated Principal Balance: As to any Distribution Date, the
aggregate of the Stated Principal Balances of the Mortgage Loans on the last
day of the related Remittance Period that were Outstanding Mortgage Loans on
that day.
Pre-Funding Amount: For any date, the amount on deposit in the
respective Pre-Funding Accounts as of that date (net of any reinvestment
earnings thereon).
Pre-Funding Accounts: The separate Eligible Accounts created and
maintained by the Trustee pursuant to Section 3.06 in the name of the Trustee
for the benefit of the Certificateholders and designated "Bankers Trust
Company of California, N.A., in trust for registered holders of IndyMac Home
Equity Mortgage Loan Asset-Backed Certificates, Series SPMD 2001-A." Funds in
the Pre-Funding Accounts shall be held in trust for the Certificateholders for
the uses and purposes set forth in this Agreement and shall not be a part of
any REMIC created under this Agreement. Any investment income earned from
Permitted Investments in the Pre-Funding Accounts will be for the account of
the Seller.
Pre-Funding Period: For each Loan Group, the period commencing on the
Closing Date and ending on the earlier to occur of (i) the date on which the
amount on deposit in the Pre-Funding Accounts (exclusive of any investment
earnings) is less than $100,000 and (ii) March 31, 2001.
Prepayment Charge: As to a Mortgage Loan, any charge paid by a Mortgagor
in connection with certain partial prepayments and all prepayments in full
made within the related Prepayment Charge Period, the Prepayment Charges with
respect to each applicable Mortgage Loan so held by the Trust being identified
in the Prepayment Charge Schedule.
Prepayment Charge Period: As to any Mortgage Loan the period of time
during which a Prepayment Charge may be imposed.
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Prepayment Charge Schedule: As of any date, the list of Prepayment
Charges included in the Trust on that date, (including the prepayment charge
summary attached thereto). The Prepayment Charge Schedule shall set forth the
following information with respect to each Prepayment Charge:
(i) the Mortgage Loan account number;
(ii) a code indicating the type of Prepayment Charge;
(iii) the state of origination in which the related Mortgage
Property is located;
(iv) the first date on which a Monthly Payment is or was due under
the related Mortgage Note;
(v) the term of the Prepayment Charge;
(vi) the original principal amount of the related Mortgage Loan; and
(vii) the Cut-off Date Principal Balance of the related Mortgage
Loan.
The Prepayment Charge Schedule shall be amended from time to time by the
Servicer in accordance with this Agreement.
Prepayment Interest Shortfall: As to any Distribution Date, Mortgage
Loan, and Principal Prepayment, the excess of one month's interest at the
related Mortgage Rate (net of the related rate at which lender-paid primary
mortgage insurance premiums are calculated if relevant for the Mortgage Loan
and period involved) on the Principal Prepayment over the amount of interest
paid in connection with the Principal Prepayment.
Prepayment Period: As to any Distribution Date, the applicable
Remittance Period.
Primary Insurance Policy: Each policy of primary mortgage
guaranty insurance or any replacement policy therefor with respect to
any Mortgage Loan.
Principal Distribution Amount: For each Certificate Group on any
Distribution Date, the sum of (i) the Basic Principal Distribution Amount for
the Distribution Date for the Certificate Group and (ii) the Extra Principal
Distribution Amount for the Distribution Date for the Certificate Group.
Principal Prepayment: Any payment of principal by a Mortgagor on a
Mortgage Loan (including the Purchase Price of any Modified Mortgage Loan
purchased pursuant to Section 3.12(c)) that is received in advance of its
scheduled Due Date and is not accompanied by an amount representing scheduled
interest due on any date in any month after the month of prepayment. The
Master Servicer shall apply partial Principal Prepayments in accordance with
the related Mortgage Note.
Principal Prepayment in Full: Any Principal Prepayment made by a
Mortgagor of the entire principal balance of a Mortgage Loan.
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Principal Remittance Amount: For any Distribution Date and each Loan
Group, the sum of the following amounts (without duplication) with respect to
the preceding Remittance Period:
(i) each payment of principal on a Mortgage Loan in the related Loan
Group received by the Master Servicer during the Remittance Period, including
all full and partial principal prepayments,
(ii) the Liquidation Proceeds on the Mortgage Loans in the related Loan
Group allocable to principal actually collected by the Master Servicer during
the related Remittance Period,
(iii) the portion of the purchase price with respect to each Deleted
Mortgage Loan in the related Loan Group, the repurchase obligation for which
arose during the related Remittance Period and that was repurchased before the
related Distribution Account Deposit Date,
(iv) the principal portion of any Substitution Adjustment Amounts in
connection with a substitution of a Mortgage Loan in the related Loan Group as
of the Distribution Date,
(v) with respect to the Distribution Date occurring in the month
following the end of the Pre-Funding Period, the related Unused Pre-Funding
Amount, and
(vi) the allocable portion of the proceeds received with respect to the
termination of the Trust Fund (to the extent such proceeds relate to
principal).
Private Certificates: As specified in the Preliminary Statement.
Proprietary Lease: For any Cooperative Unit, a lease or
occupancy agreement between a Cooperative Corporation and a holder of
related Coop Shares.
Prospectus Supplement: The Prospectus Supplement dated February
23, 2001 relating to the Offered Certificates.
PUD: Planned Unit Development.
Purchase Price: For any Modified Mortgage Loan or any Mortgage
Loan required to be purchased by the Seller pursuant to Section 2.02
or 2.03 or purchased at the option of the Master Servicer pursuant to
Section 3.12, the sum of
(i) 100% of the unpaid principal balance of the Mortgage Loan on the
date of the purchase, and
(ii) accrued interest on the Mortgage Loan at the applicable Mortgage
Rate (or at the applicable Adjusted Net Mortgage Rate if (x) the purchaser is
the Master Servicer or (y) if the purchaser is the Seller and the Seller is
the Master Servicer) from the date through which interest was last paid by the
Mortgagor to the Due Date in the month in which the Purchase Price is to be
distributed to Certificateholders.
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If the Mortgage Loan is a Modified Mortgage Loan, the interest component of
the Purchase Price shall be computed (i) on the basis of the applicable
Adjusted Net Mortgage Rate before giving effect to the related modification
and (ii) from the date to which interest was last paid to the date on which
the Modified Mortgage Loan is assigned to the Master Servicer pursuant to
Section 3.12(c).
Qualified Insurer: A mortgage guaranty insurance company duly qualified
as such under the laws of the state of its principal place of business and
each state having jurisdiction over the insurer in connection with the
insurance policy issued by the insurer, duly authorized and licensed in such
states to transact a mortgage guaranty insurance business in such states and
to write the insurance provided by the insurance policy issued by it, approved
as a FNMA- or FHLMC-approved mortgage insurer or having a claims paying
ability rating of at least "AA" or equivalent rating by a nationally
recognized statistical rating organization. Any replacement insurer with
respect to a Mortgage Loan must have at least as high a claims paying ability
rating as the insurer it replaces had on the Closing Date.
Rating Agency: Each of the Rating Agencies specified in the Preliminary
Statement. If any of them or a successor is no longer in existence, "Rating
Agency" shall be the nationally recognized statistical rating organization, or
other comparable Person, designated by the Depositor, notice of which
designation shall be given to the Trustee. References to a given rating or
rating category of a Rating Agency means the rating category without giving
effect to any modifiers.
Recognition Agreement: For any Cooperative Loan, an agreement between
the Cooperative Corporation and the originator of the Mortgage Loan which
establishes the rights of the originator in the Cooperative Property.
Record Date: For any Definitive Certificate or any Group 1 Certificate,
the close of business on the last Business Day of the month preceding the
month of the related Distribution Date. For the Group 2 Certificates held in
book-entry form, the close of business on the Business Day before the related
Distribution Date.
Reference Bank: As defined in Section 4.07.
Refinance Loan: Any Mortgage Loan the proceeds of which are
used to refinance an existing mortgage loan.
Regular Certificates: As specified in the Preliminary Statement.
Relevant Mortgage Loan: As defined in Section 3.12(c).
REMIC: A "real estate mortgage investment conduit" within the
meaning of section 860D of the Code.
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REMIC Change of Law: Any proposed, temporary, or final regulation,
revenue ruling, revenue procedure, or other official announcement or
interpretation relating to REMICs and the REMIC Provisions issued after the
Closing Date.
REMIC Provisions: Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations promulgated thereunder, as the foregoing may be in effect from
time to time as well as provisions of applicable state laws.
Remittance 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.
REO Property: A Mortgaged Property acquired by the Trust Fund through
foreclosure or deed-in-lieu of foreclosure in connection with a defaulted
Mortgage Loan.
Request for Release: The Request for Release submitted by the Master
Servicer to the Trustee, substantially in the form of Exhibits M and N, as
appropriate.
Required Insurance Policy: For any Mortgage Loan, any insurance
policy that is required to be maintained from time to time under this
Agreement.
Required Reserve Amount: (a) $10,000 on any Distribution Date that the
Group 2 WAC Cap exceeds the weighted average rate on the Adjustable Rate
Certificates by more than 0.25%, and (b) the greater of (i) $10,000 or (ii)
the product of 0.50% and the Class Certificate Balance of the Adjustable Rate
Certificates as of the Distribution Date, on any Distribution Date that the
Group 2 WAC Cap exceeds the weighted average rate on the Adjustable Rate
Certificates by less than 0.25%.
Residual Certificates: As specified in the Preliminary
Statement.
Responsible Officer: When used with respect to the Trustee, any Vice
President, any Assistant Vice President, any Assistant Secretary, any
Assistant Treasurer, 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.
SAIF: The Savings Association Insurance Fund, or any successor
thereto.
S&P: Standard & Poor's, a division of The XxXxxx-Xxxx Companies. If S&P
is designated as a Rating Agency in the Preliminary Statement, for purposes of
Section 10.05(b) the address for notices to S&P shall be Standard & Poor's
Ratings Group, a division of The XxXxxx-Xxxx Companies, Inc., 00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention:
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Mortgage Surveillance Monitoring, or any other address that S&P furnishes to
the Depositor and the Master Servicer.
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan due
on any Due Date allocable to principal or interest on the Mortgage Loan that,
unless otherwise specified herein, shall give effect to any related Debt
Service Reduction and any Deficient Valuation that affects the amount of the
monthly payment due on the Mortgage Loan.
Securities Act: The Securities Act of 1933.
Security Agreement: For any Cooperative Loan, the agreement between the
owner of the related Coop Shares and the originator of the related Mortgage
Note that defines the security interest in the Coop Shares and the related
Proprietary Lease.
Seller: IndyMac Bank, F.S.B., a federal savings bank, and its
successors and assigns, in its capacity as seller of the Mortgage
Loans to the Depositor.
Senior Enhancement Percentage: For either Certificate Group and
any Distribution Date, the percentage obtained by dividing
(x) the sum of (i) the aggregate Class Certificate Balance of the
Subordinated Certificates of the Certificate Group and (ii) the related
Subordinated Amount (in each case after taking into account the
distributions of the related Principal Distribution Amount for the
Distribution Date) by
(y) the aggregate Stated Principal Balance of the Mortgage Loans in
the related Loan Group as of the last day of the related Remittance
Period.
Senior Specified Enhancement Percentage: As of any date of
Determination, 12.50% for Certificate Group 1 and 10.00% for
Certificate Group 2.
Servicing Account: The separate Eligible Account or Accounts
created and maintained pursuant to Section 3.06(b).
Servicing Advances: All customary, reasonable, and necessary
"out of pocket" costs and expenses incurred in the performance by the
Master Servicer of its servicing obligations, including the cost of
(i) --
(a) the preservation, restoration, and protection of a Mortgaged
Property,
(b) expenses reimbursable to the Master Servicer pursuant to
Section 3.12 and any enforcement or judicial proceedings, including
foreclosures,
(c) the management and liquidation of any REO Property, and
(d) compliance with the obligations under Section 3.10; and
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(ii) reasonable compensation to the Master Servicer or its affiliates
for acting as broker in connection with the sale of foreclosed Mortgaged
Properties and for performing certain default management and other similar
services (including appraisal services) in connection with the servicing of
defaulted Mortgage Loans. For purposes of clause (ii), only costs and expenses
incurred in connection with the performance of activities generally considered
to be outside the scope of customary servicing or master servicing duties
shall be treated as Servicing Advances.
Servicing Fee: As to each Mortgage Loan and any Distribution Date, one
month's interest at the applicable Servicing Fee Rate on the Stated Principal
Balance of the Mortgage Loan, or, whenever a payment of interest accompanies a
Principal Prepayment in Full made by the Mortgagor, interest at the Servicing
Fee Rate on the Stated Principal Balance of the Mortgage Loan for the period
covered by the payment of interest, subject to reduction as provided in
Section 3.15
Servicing Fee Rate: For any Mortgage Loan, the per annum rate in the
Mortgage Loan Schedule for the Mortgage Loan.
Servicing Officer: Any officer of the Master Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and facsimile signature appear on a list of servicing officers furnished
to the Trustee by the Master Servicer on the Closing Date pursuant to this
Agreement, as the list may from time to time be amended.
Servicing Standard: That degree of skill and care exercised by the
Master Servicer with respect to mortgage loans comparable to the Mortgage
Loans serviced by the Master Servicer for itself or others.
60+ Day Delinquent Loan: Each Mortgage Loan in foreclosure, all REO
Property, each Mortgage Loan for which the Mortgagor has filed for bankruptcy,
and each Mortgage Loan with respect to which any portion of a Scheduled
Payment is, as of the last day of the prior Remittance Period, two months or
more past due (without giving effect to any grace period).
Specified Subordinated Amount: For each Loan Group
(i) for the distribution date in March 2001, zero;
(ii) for any other Distribution Date before the Stepdown Date for the
related Certificate Group, 0.50 % for Loan Group 1 and 0.50 % for Loan Group
2, of the sum of the Cut-off Date Principal Balance of the initial Mortgage
Loans in the related Loan Group plus the amount in the related Pre-Funding
Account; and
(iii) for each Loan Group from the Stepdown Date for the related
Certificate Group and as long as no Trigger Event for the related Certificate
Group exists, 1.00 % for Loan Group 1 and 1.00 % for Loan Group 2, of the
aggregate Stated Principal Balance of the Mortgage Loans in the Loan Group as
of the last day of the related Remittance Period, subject to a minimum amount
equal to 0.50% for each Loan Group of the aggregate Stated Principal Balance
of the
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initial Mortgage Loans in that Loan Group as of the related Cut-off Date plus
the amount in the related Pre-Funding Account.
If, on any Distribution Date, a Trigger Event for a Certificate Group
has occurred, the Specified Subordinated Amount shall not be reduced to the
applicable percentage of the then current aggregate Stated Principal Balance
of the Mortgage Loans in the related Loan Group until the Distribution Date on
which a Trigger Event for the Certificate Group is no longer occurring.
Startup Day: The Closing Date.
Stated Principal Balance: As to any Mortgage Loan and Due Date, the
unpaid principal balance of the Mortgage Loan as of the Due Date as specified
in the amortization schedule at the time relating thereto (before any
adjustment to the amortization schedule for any moratorium or similar waiver
or grace period) after giving effect to any previous partial Principal
Prepayments and Liquidation Proceeds allocable to principal (other than with
respect to any Liquidated Mortgage Loan) and to the payment of principal due
on the Due Date and irrespective of any delinquency in payment by the related
Mortgagor.
Stepdown Date: For either Loan Group, the later to occur of (i) the
Distribution Date in March 2004 and (ii) the first Distribution Date on which
the Senior Enhancement Percentage (calculated for this purpose only after
taking into account distributions of principal on the Mortgage Loans in the
related Loan Group on the last day of the related Remittance Period but before
any applications of Principal Distribution Amount to the related Certificates)
is greater than or equal to the related Senior Specified Enhancement
Percentage.
Subordinated Amount: For each Certificate Group and as of any
Distribution Date and related Loan Group, the excess of
(a) the aggregate Stated Principal Balance of the Mortgage Loans in the
Loan Group as of the end of the related Remittance Period plus the amount in
the related Pre-Funding Account excluding investment earnings over
(b) the aggregate of the Class Certificate Balances of the Offered
Certificates in the related Certificate Group as of the Distribution Date
(after giving effect to the payment of principal on the Certificates on the
Distribution Date).
Subordinated Certificates: As specified in the Preliminary
Statement.
Subordination Deficiency: For any Distribution Date and either Loan
Group, the excess of (a) the Specified Subordinated Amount for the related
Certificate Group applicable to the Distribution Date over (b) the
Subordinated Amount for the Certificate Group applicable to the Distribution
Date.
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Subordination Reduction Amount: For any Distribution Date and either
Loan Group, the lesser of (a) the related Excess Subordinated Amount and (b)
the Total Monthly Excess Spread for the related Certificate Group.
Subsequent Mortgage Loan: Such of the mortgage loans transferred and
assigned to the Trustee pursuant to (i) a Subsequent Transfer Agreement and
(ii) the provisions hereof, as from time to time are held as a part of the
Trust Fund (including any REO Property), the mortgage loans so held being
identified on the Mortgage Loan Schedule for the related Subsequent Transfer
Date, notwithstanding foreclosure or other acquisition of title of the related
Mortgaged Property. When used with respect to a single Subsequent Transfer
Date, "Subsequent Mortgage Loan" means a Subsequent Mortgage Loan conveyed to
the Trust Fund on the Subsequent Transfer Date.
Subsequent Transfer Agreement: A Subsequent Transfer Agreement
substantially in the form of Exhibit Q, executed and delivered by the Seller,
the Depositor, and the Trustee as provided in Section 2.09(a).
Subsequent Transfer Date: For any Subsequent Transfer Agreement, the
"Subsequent Transfer Date" identified in the Subsequent Transfer Agreement.
The Subsequent Transfer Date for any Subsequent Transfer Agreement may not be
a date earlier than the date on which the Subsequent Transfer Agreement is
executed and delivered by the parties thereto pursuant to Section 2.09(a).
Subservicer: As defined in Section 3.02(a).
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;
(ii) be accruing interest at a rate no lower than and not more than 1%
per annum higher than, that of the Deleted Mortgage Loan;
(iii) have a Loan-to-Value Ratio or Combined Loan-to-Value Ratio (as
applicable) no higher than that of the Deleted Mortgage Loan;
(iv) have a remaining term to maturity no greater than (and not more
than one year less than that of) the Deleted Mortgage Loan;
(v) not be a Cooperative Loan unless the Deleted Mortgage Loan was a
Cooperative Loan; and
(vi) comply with each representation and warranty in Section 2.03.
Substitution Adjustment Amount: As defined in Section 2.03.
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Telerate Page 3750: The display page currently so designated on the
Bridge Telerate Information Services, Inc. (or any page replacing that page on
that service for the purpose of displaying London inter-bank offered rates of
major banks).
Total Monthly Excess Spread: As to either Loan Group and any
Distribution Date, the excess of (i) the interest collected or advanced on the
related Mortgage Loans during the related Remittance Period plus the related
Capitalized Interest Requirement for the Distribution Date over (ii) the sum
of the amounts paid to the Classes of Certificates in the related Certificate
Group or to the Excess Reserve Fund Account for the benefit of the related
Certificate Group on the Distribution Date pursuant to Section 4.02(I)(i) and
4.02(I)(iii)(a).
For any Distribution Date the amount remaining for distribution pursuant
to Section 4.02(I)(iii) (before giving effect to distributions pursuant to
that Section).
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
Trigger Event: With respect to the Certificates of a Certificate Group
after a Stepdown Date for the related Loan Group, exists if the quotient of
(x) the three month rolling average of 60+ Day Delinquent Loans for the
related Loan Group, as of the last day of the related Remittance Period, over
(y) the Stated Principal Balance of the Mortgage Loans in that Loan Group
equals or exceeds 85% (in the case of Loan Group 1) or 135% (in the case of
Loan Group 2) of the related Senior Enhancement Percentage.
Trust Fund: The corpus of the trust created under this
Agreement consisting of
(i) the Mortgage Loans and all interest and principal received on them
after the related Cut-off Date, other than amounts due on the Mortgage Loans
by the related Cut-off Date;
(ii) the Certificate Account, Excess Reserve Fund Account, the
Distribution Account, the Pre-Funding Accounts, and the Capitalized Interest
Accounts and all amounts deposited therein pursuant to this Agreement
(including amounts received from the Seller on the Closing Date that will be
deposited by the Trustee in the Certificate Account pursuant to Section 2.01);
(iii) property that secured a Mortgage Loan and has been acquired by
foreclosure, deed-in-lieu of foreclosure, or otherwise;
(iv) the right to collect any amounts under any mortgage insurance
policies covering any Mortgage Loan and any collections received under any
mortgage insurance policies covering any Mortgage Loan; and
(v) all proceeds of the conversion, voluntary or involuntary, of any of
the foregoing.
Trustee: Bankers Trust Company of California, N.A. and its
successors and, if a successor trustee is appointed under this
Agreement, the successor.
Trustee Fee: As to each Mortgage Loan and any Distribution Date, one
month's interest at the related Trustee Fee Rate on the Stated Principal
Balance of the Mortgage Loan or,
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whenever a payment of interest accompanies a Principal Prepayment in Full made
by the Mortgagor, interest at the Trustee Fee Rate on the Stated Principal
Balance of the Mortgage Loan for the period covered by the payment of
interest.
Trustee Fee Rate: For each Mortgage Loan, the per annum rate agreed upon
in writing by the Closing Date by the Trustee and the Depositor.
United States Person or U.S. Person: (i) A citizen or resident
of the United States;
(ii) a corporation (or entity treated as a corporation for tax purposes)
created or organized in the United States or under the laws of the United
States or of any state thereof, including, for this purpose, the District of
Columbia;
(iii) a partnership (or entity treated as a partnership for tax
purposes) organized in the United States or under the laws of the United
States or of any state thereof, including, for this purpose, the District of
Columbia (unless provided otherwise by future Treasury regulations);
(iv) an estate whose income is includible in gross income for United
States income tax purposes regardless of its source; or
(v) a trust, if a court within the United States is able to exercise
primary supervision over the administration of the trust and one or more U.S.
Persons have authority to control all substantial decisions of the trust.
Notwithstanding the last clause of the preceding sentence, to the extent
provided in Treasury regulations, certain trusts in existence on August 20,
1996, and treated as U.S. Persons before that date, may elect to continue to
be U.S. Persons.
Unpaid Interest Amounts: As of any Distribution Date and any
Class of Certificates, the sum of
(a) the excess of
(i) the sum of the Accrued Certificate Interest Distribution
Amount for the Distribution Date and any portion of the Accrued
Certificate Interest Distribution Amount from prior Distribution Dates
remaining unpaid over
(ii) the amount in respect of interest on the Class of
Certificates actually distributed on the preceding Distribution Date and
(b) 30 days' interest on that excess at the applicable Pass-Through Rate (to
the extent permitted by applicable law).
Unpaid Realized Loss Amount: For any Class of Subordinated Certificates
and any Distribution Date, is the excess of (i) Applied Realized Loss Amounts
for the Class over (ii) the sum of all distributions in reduction of Applied
Realized Loss Amounts for the Class on all previous Distribution Dates. Any
amounts distributed to a Class of Subordinated Certificates with respect to
any Unpaid Realized Loss Amount will not be applied to reduce the Class
Certificate Balance of the Class.
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Unused Pre-Funding Amount: The Pre-Funding Amount immediately after the
end of the Pre-Funding Period.
Upper Tier Regular Interest: As described in the Preliminary
Statement.
Upper Tier REMIC:. As described in the Preliminary Statement.
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 any Class X
Certificates (the Voting Rights to be allocated among the holders of
Certificates of each Class in accordance with their respective Percentage
Interests) and (b) the remaining Voting Rights shall be allocated among
Holders of the remaining Classes of Certificates in proportion to the
Certificate Balances or notional amounts, as applicable, of their respective
Certificates on the date.
Section 1.02. Rules of Construction.
Except as otherwise expressly provided in this Agreement or unless the
context clearly requires otherwise:
(a) References to designated articles, sections, subsections, exhibits,
and other subdivisions of this Agreement, such as "Section 6.12 (a)," refer to
the designated article, section, subsection, exhibit, or other subdivision of
this Agreement as a whole and to all subdivisions of the designated article,
section, subsection, exhibit, or other subdivision. The words "herein,"
"hereof," "hereto," "hereunder," and other words of similar import refer to
this Agreement as a whole and not to any particular article, section, exhibit,
or other subdivision of this Agreement.
(b) Any term that relates to a document or a statute, rule, or
regulation includes any amendments, modifications, supplements, or any other
changes that may have occurred since the document, statute, rule, or
regulation came into being, including changes that occur after the date of
this Agreement.
(c) Any party may execute any of the requirements under this Agreement
either directly or through others, and the right to cause something to be done
rather than doing it directly shall be implicit in every requirement under
this Agreement. Unless a provision is restricted as to time or limited as to
frequency, all provisions under this Agreement are implicitly available and
things may happen from time to time.
(d) The term "including" and all its variations mean "including but not
limited to." Except when used in conjunction with the word "either," the word
"or" is always used inclusively (for example, the phrase "A or B" means "A or
B or both," not "either A or B but not both").
(e) A reference to "a [thing]" or "any [of a thing]" does not imply the
existence or occurrence of the thing referred to even though not followed by
"if any," and "any [of a thing]"
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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 "on or before." 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 Initial Mortgage Loan, including all
interest and principal due to the Seller on each Initial Mortgage Loan after
the related Cut-off Date and all interest and principal payments on each
Initial Mortgage Loan received by the related Cut-off Date for installments of
interest and principal due after the related Cut-Off Date but not including
payments of principal and interest due on each Initial Mortgage Loan by the
related Cut-off Date. By the Closing Date, the Seller shall deliver to the
Depositor or, at the Depositor's direction, to the Trustee or other designee
of the Depositor, the Mortgage File for each Initial Mortgage Loan listed in
the Mortgage Loan Schedule as of the Closing Date. The delivery of the
Mortgage Files shall be made against payment by the Depositor of the purchase
price, previously agreed to by the Seller and Depositor, for the Initial
Mortgage Loans.
(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 Initial Mortgage Loan
in accordance with this Agreement.
(c) In connection with the transfer and assignment of each Initial
Mortgage Loan, the Depositor has delivered (or, in the case of the Delay
Delivery Mortgage Loans, will deliver to the Trustee within the time periods
specified in the definition of Delay Delivery Mortgage Loans), and, in
connection with the transfer and assignment of each Subsequent Mortgage Loan,
will deliver to the Trustee for the benefit of the Certificateholders the
following documents or instruments with respect to each Mortgage Loan so
assigned.
(i) The original Mortgage Note, endorsed by manual or facsimile
signature in blank in the following form: "Pay to the order of
_______________ ______________without recourse," with all intervening
endorsements showing a complete chain of endorsement from the originator
to the 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.
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(ii) Except as provided below, the original recorded Mortgage or a
copy of the Mortgage certified by the Seller (or, in the case of a
Mortgage for which the related Mortgaged Property is located in the
Commonwealth of Puerto Rico, a copy of the Mortgage certified by the
applicable notary) as being a true and complete copy of the Mortgage.
(iii) A duly executed assignment of the Mortgage (which may be
included in a blanket assignment or assignments), together with, except
as provided below, all interim recorded assignments of the mortgage
(each assignment, when duly and validly completed, to be in recordable
form and sufficient to effect the assignment of and transfer to its
assignee of the Mortgage to which the assignment relates). If the
related Mortgage has not been returned from the applicable public
recording office, the assignment of the Mortgage may exclude the
information to be provided by the recording office. The assignment of
Mortgage need not be delivered in the case of a Mortgage for which the
related Mortgage Property is located in the Commonwealth of Puerto Rico.
(iv) The original or copies of each assumption, modification,
written assurance, or substitution agreement.
(v) Except as provided below, the original or duplicate original
lender's title policy and all its riders.
(vi) The originals of the following documents for each Cooperative
Loan:
(A) the Coop Shares, together with a stock power in blank;
(B) the executed Security Agreement;
(C) the executed Proprietary Lease;
(D) the executed Recognition Agreement;
(E) the executed UCC-1 financing statement that
has been filed in all places required to perfect the Seller's
interest in the Coop Shares and the Proprietary Lease with
evidence of recording on it; and
(F) executed UCC-3 financing statements or other appropriate
UCC financing statements required by state law, evidencing a
complete and unbroken line from the mortgagee to the Trustee with
evidence of recording thereon (or in a form suitable for
recordation).
If in connection with any Mortgage Loan the Depositor cannot deliver
(a) the original recorded Mortgage,
(b) all interim recorded assignments, or
(c) the lender's title policy (together with all its riders)
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satisfying the requirements of clause (ii), (iii), or (v) above, respectively,
concurrently with the execution and delivery of this Agreement because any of
them have not been returned from the applicable public recording office in the
case of clause (ii) or (iii) above, or because the title policy has not been
delivered to either the Master Servicer or the Depositor by the applicable
title insurer in the case of clause (v) above,
then the Depositor shall promptly deliver to the Trustee, in the case of
clause (ii) or (iii) above, the original Mortgage or the interim assignment,
as the case may be, with evidence of recording indicated on it when it is
received from the public recording office, or a copy of it, certified, if
appropriate, by the relevant recording office.
The delivery of the original Mortgage Loan and each interim assignment
or a copy of them, certified, if appropriate, by the relevant recording
office, shall not be made later than one year following the Closing Date (or,
for a Subsequent Mortgage Loan, the Subsequent Transfer Date), or, in the case
of clause (v) above, later than 120 days following the Closing Date (or, for a
Subsequent Mortgage Loan, the Subsequent Transfer Date). If the Depositor is
unable to deliver each Mortgage by that date and each interim assignment
because any documents have not been returned by the appropriate recording
office, or, in the case of each interim assignment, because the related
Mortgage has not been returned by the appropriate recording office, the
Depositor shall deliver the documents to the Trustee as promptly as possible
upon their receipt and, in any event, within 720 days following the Closing
Date (or, for a Subsequent Mortgage Loan, the Subsequent Transfer Date).
The Depositor shall forward to the Trustee (a) from time to time
additional original documents evidencing an assumption or modification of a
Mortgage Loan and (b) any other documents required to be delivered by the
Depositor or the Master Servicer to the Trustee. If the original Mortgage is
not delivered and in connection with the payment in full of the related
Mortgage Loan the public recording office requires the presentation of a "lost
instruments affidavit and indemnity" or any equivalent document, because only
a copy of the Mortgage can be delivered with the instrument of satisfaction or
reconveyance, the Master Servicer shall execute and deliver the required
document to the public recording office. If a public recording office retains
the original recorded Mortgage or if a Mortgage is lost after recordation in a
public recording office, the Seller shall deliver to the Trustee a copy of the
Mortgage certified by the public recording office to be a true and complete
copy of the original recorded Mortgage.
As promptly as practicable after any transfer of a Mortgage Loan under
this Agreement, and in any event within thirty days after the transfer, the
Trustee shall (i) affix the Trustee's name to each assignment of Mortgage, as
its assignee, and (ii) cause to be delivered for recording in the appropriate
public office for real property records the assignments of the Mortgages to
the Trustee, except that, if the Trustee has not received the information
required to deliver any assignment of a Mortgage for recording, the Trustee
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shall deliver it for as soon as practicable after receipt of the needed
information and in any event within thirty days.
The Trustee need not record any assignment that relates to a Mortgage
Loan (a) the Mortgaged Property and Mortgage File relating to which are
located in California or (b) in any other jurisdiction (including Puerto Rico)
under the laws of which, as evidenced by an Opinion of Counsel delivered by
the Seller (at the Seller's expense) to the Trustee, recording the assignment
is not necessary to protect the Trustee's and the Certificateholders' interest
in the related Mortgage Loan.
If any Mortgage Loans have been prepaid in full as of the Closing Date,
the Depositor, in lieu of delivering the above documents to the Trustee, will
deposit in the Certificate Account the portion of the prepayment that is
required to be deposited in the Certificate Account pursuant to Section 3.06.
Notwithstanding anything to the contrary in this Agreement, within five
Business Days after the Closing Date (in the case of Initial Mortgage Loans)
or within thirty days of the Subsequent Transfer Date (in the case of
Subsequent Mortgage Loans), the Seller shall either
(i) deliver to the Trustee the Mortgage File as required pursuant to
this Section 2.01 for each Delay Delivery Mortgage Loan or
(ii) (A) repurchase the Delay Delivery Mortgage Loan or (B) substitute
the Delay Delivery Mortgage Loan for a Substitute Mortgage Loan, which
repurchase or substitution shall be accomplished in the manner and subject to
the conditions in Section 2.03.
If the Seller fails to deliver a Mortgage File for any Delay Delivery
Mortgage Loan within thirty days of the Subsequent Transfer Date, 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 the Delay Delivery Mortgage Loan,
but rather the Seller shall have five Business Days to cure the failure to
deliver, and shall promptly provide each Rating Agency with written notice of
any cure, repurchase, or substitution. By the fifth Business Day after the
Closing Date (in the case of Initial Mortgage Loans) or the thirtieth day (or
if that day is not a Business Day, the next Business Day) after the Subsequent
Transfer Date (in the case of Subsequent Mortgage Loans), the Trustee shall,
in accordance with Section 2.02, send a Delay Delivery Certification
substantially in the form of Exhibit G-1 (with any applicable exceptions noted
thereon) for all Delay Delivery Mortgage Loan delivered within the specified
numbers of days after the pertinent date. The Trustee will promptly send a
copy of such Delay Delivery Certification to each Rating Agency.
(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.
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Section 2.02. Acceptance by the Trustee of the Mortgage Loans.
(a) The Trustee acknowledges receipt of the documents identified in the
Initial Certification in the form of Exhibit G, and receipt of the amount of
$20,998,601.23 for deposit in the Group 1 Pre-Funding Account and the amount
of $28,676,365.97 for deposit in the Group 2 Pre-Funding Account and declares
that it holds and will hold such documents and the other documents delivered
to it constituting the Mortgage Files for the Initial Mortgage Loans, that it
holds and will hold all amounts in the Pre-Funding Accounts and the
Capitalized Interest Accounts, and that it holds or will hold such other
assets as are included in the Trust Fund, in trust for the exclusive use and
benefit of all present and future Certificateholders. The Trustee acknowledges
that it will maintain possession of the related Mortgage Notes in the State of
California, unless otherwise permitted by the Rating Agencies.
The Trustee agrees to execute and deliver on the Closing Date to the
Depositor, the Master Servicer and the Seller an Initial Certification in the
form of Exhibit G. Based on its review and examination, and only as to the
documents identified in such Initial Certification, the Trustee acknowledges
that such documents appear regular on their face and relate to such Initial
Mortgage Loans. The Trustee shall be under no duty or obligation to inspect,
review or examine said documents, instruments, certificates or other papers to
determine that the same are genuine, enforceable or appropriate for the
represented purpose or that they have actually been recorded in the real
estate records or that they are other than what they purport to be on their
face.
By the thirtieth day after the Closing Date (or if that day is not a
Business Day, the succeeding Business Day), the Trustee shall deliver to the
Depositor, the Master Servicer, and the Seller a Delay Delivery Certification
with respect to the Initial Mortgage Loans substantially in the form of
Exhibit G-1, with any applicable exceptions noted thereon.
Not later than 90 days after the Closing Date, the Trustee shall deliver
to the Depositor, the Master Servicer and the Seller a Final Certification in
the form of Exhibit H, with any applicable exceptions noted thereon.
If, in the course of its review, the Trustee finds any document
constituting a part of a Mortgage File that does not meet the requirements of
Section 2.01, the Trustee shall list such as an exception in the Final
Certification. The Trustee shall not make any determination as to whether (i)
any endorsement is sufficient to transfer all interest of the party so
endorsing, as noteholder or assignee thereof, in that Mortgage Note or (ii)
any assignment is in recordable form or is sufficient to effect the assignment
of and transfer to the assignee thereof under the mortgage to which the
assignment relates. The Seller shall promptly correct any defect within 90
days from the date it was so notified of the defect and, if the Seller does
not correct the defect within that period, the Seller shall either (a)
substitute for the related Initial Mortgage Loan a Substitute Mortgage Loan,
which substitution shall be accomplished in the
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pursuant Section 2.03, or (b) purchase the Initial Mortgage Loan at its
Purchase Price from the Trustee within 90 days from the date the Seller was
notified of the defect in writing.
If a substitution or purchase of an Initial Mortgage Loan pursuant to
this provision is required because of a delay in delivery of any documents by
the appropriate recording office, or there is a dispute between either the
Master Servicer or the Seller and the Trustee over the location or status of
the recorded document, then the substitution or purchase shall occur within
720 days from the Closing Date. In no other case may a substitution or
purchase occur more than 540 days from the Closing Date.
The Trustee shall deliver written notice to each Rating Agency within
270 days from the Closing Date indicating each Initial Mortgage Loan (a) that
has not been returned by the appropriate recording office or (b) as to which
there is a dispute as to location or status of the Initial Mortgage Loan. The
notice shall be delivered every 90 days thereafter until the related Initial
Mortgage Loan is returned to the Trustee. Any substitution pursuant to (a)
above or purchase pursuant to (b) above shall not be effected before the
delivery to the Trustee of the Opinion of Counsel required by Section 2.05,
and any substitution pursuant to (a) above shall not be effected before the
additional delivery to the Trustee of a Request for Release substantially in
the form of Exhibit N. No substitution is permitted to be made in any calendar
month after the Determination Date for the month.
The Purchase Price for any Initial Mortgage Loan shall be deposited by
the Seller in the Certificate Account by the Distribution Account Deposit Date
for the Distribution Date in the month following the month of repurchase and,
upon receipt of the deposit and certification with respect thereto in the form
of Exhibit N, the Trustee shall release the related Mortgage File to the
Seller and shall execute and deliver at the Seller's request any instruments
of transfer or assignment prepared by the Seller, in each case without
recourse, necessary to vest in the Seller, or a designee, the Trustee's
interest in any Initial Mortgage Loan released pursuant hereto.
The Trustee shall retain possession and custody of each Mortgage File in
accordance with and subject to the terms and conditions set forth herein. The
Master Servicer shall promptly deliver to the Trustee, upon the execution or
receipt thereof, the originals of such other documents or instruments
constituting the Mortgage File as come into the possession of the Master
Servicer from time to time.
The obligation of the Seller to substitute for or to purchase any
Initial Mortgage Loan that does not meet the requirements of Section 2.01
shall constitute the sole remedy respecting the defect available to the
Trustee, the Depositor, and any Certificateholder against the Seller.
(b) The Trustee agrees to execute and deliver to the Depositor, the
Master Servicer and the Seller on the Subsequent Transfer Date an Initial
Certification in the form of Exhibit G acknowledging receipt of the documents
identified in such Initial Certification
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and declaring that it holds and will hold such documents and the other
documents delivered to it constituting the Mortgage Files for the related
Subsequent Mortgage Loans, and that it holds or will hold such other assets as
are included in the Trust Fund, in trust for the exclusive use and benefit of
all present and future Certificateholders. The Trustee acknowledges that it
will maintain possession of the related Mortgage Notes in the State of
California, unless otherwise permitted by the Rating Agencies.
Based on its review and examination, and only as to the documents
identified in such Initial Certification, the Trustee acknowledges that such
documents appear regular on their face and relate to such Subsequent Mortgage
Loan. The Trustee shall be under no duty or obligation to inspect, review or
examine said documents, instruments, certificates or other papers to determine
that the same are genuine, enforceable or appropriate for the represented
purpose or that they have actually been recorded in the real estate records or
that they are other than what they purport to be on their face.
Not later than 90 days after the Subsequent Transfer Date, the Trustee
shall deliver to the Depositor, the Master Servicer, and the Seller a Final
Certification in the form of Exhibit H, with any applicable exceptions noted
thereon.
If, in the course of its review, the Trustee finds any document
constituting a part of a Subsequent Mortgage File that does not meet the
requirements of Section 2.01, the Trustee shall list such as an exception in
the Final Certification. The Trustee shall not make any determination as to
whether (i) any endorsement is sufficient to transfer all interest of the
party so endorsing, as Noteholder or assignee thereof, in that Mortgage Note
or (ii) any assignment is in recordable form or is sufficient to effect the
assignment of and transfer to the assignee thereof under the mortgage to which
the assignment relates. The Seller shall promptly correct the defect within 90
days from the date it was so notified of the defect and, if the Seller does
not correct the defect within that period, the Seller shall either (a)
substitute for the related Subsequent Mortgage Loan a Substitute Mortgage
Loan, which substitution shall be accomplished pursuant to Section 2.03, or
(b) purchase the Subsequent Mortgage Loan from the Trustee within 90 days from
the date the Seller was notified of the defect in writing at the Purchase
Price of the Subsequent Mortgage Loan.
If the substitution or purchase of a Subsequent Mortgage Loan pursuant
to this provision is required because of a delay in delivery of any documents
by the appropriate recording office, or there is a dispute between either the
Master Servicer or the Seller and the Trustee over the location or status of
the recorded document, then the substitution or purchase shall occur within
720 days from the Subsequent Transfer Date. In no other case shall the
substitution or purchase occur more than 540 days from the Subsequent Transfer
Date. The Trustee shall deliver written notice to each Rating Agency within
270 days from the Subsequent Transfer Date indicating each Subsequent Mortgage
Loan (a) that has not been returned by the appropriate recording office or (b)
as to which there is a dispute as to location or status of the Mortgage Loan.
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The notice shall be delivered every 90 days thereafter until the related
Subsequent Mortgage Loan is returned to the Trustee. Any substitution pursuant
to (a) above or purchase pursuant to (b) above shall not be effected before
the delivery to the Trustee of the Opinion of Counsel required by Section
2.05, and any substitution pursuant to (a) above shall not be effected before
the additional delivery to the Trustee of a Request for Release substantially
in the form of Exhibit N. No substitution is permitted to be made in any
calendar month after the Determination Date for the month. The Purchase Price
for any Subsequent Mortgage Loan shall be deposited by the Seller in the
Certificate Account by the Distribution Account Deposit Date for the
Distribution Date in the month following the month of repurchase and, upon
receipt of the deposit and certification with respect thereto in the form of
Exhibit N, the Trustee shall release the related Mortgage File to the Seller
and shall execute and deliver at the Seller's request any instruments of
transfer or assignment prepared by the Seller, in each case without recourse,
necessary to vest in the Seller, or a designee, the Trustee's interest in any
Subsequent Mortgage Loan released pursuant hereto.
The Trustee shall retain possession and custody of each related Mortgage
File in accordance with and subject to the terms and conditions set forth
herein. The Master Servicer shall promptly deliver to the Trustee, upon the
execution or receipt thereof, the originals of any other documents or
instruments constituting the Subsequent Mortgage File that come into the
possession of the Master Servicer from time to time.
The obligation of the Seller to substitute for or to purchase any
Subsequent Mortgage Loan that does not meet the requirements of Section 2.01
shall constitute the sole remedy respecting the defect available to the
Trustee, the Depositor, and any Certificateholder against the Seller.
Section 2.03. Representations, Warranties, and
Covenants of the Seller and the Master
Servicer.
(a) IndyMac, in its capacities as Seller and Master Servicer, hereby
makes the representations and warranties in Schedule II, and by this reference
incorporated herein, to the Depositor and the Trustee, as of the Closing Date.
(b) The Seller, in its capacity as Seller, hereby makes the
representations and warranties in Schedule III, and by this reference
incorporated herein, to the Depositor and the Trustee, as of the Closing Date,
or if so specified therein, as of the related Cut-off Date.
(c) Upon discovery by any of the parties hereto of a breach of a
representation or warranty made pursuant to Section 2.03(b) that materially
and adversely affects the interests of the Certificateholders in any Mortgage
Loan, the party discovering such breach shall give prompt notice thereof to
the other parties. The Seller hereby covenants that within 90 days of the
earlier of its discovery or its receipt of written notice from any party of a
breach of any representation or warranty made pursuant to Section 2.03(b)
which materially and adversely affects the interests of the Certificateholders
in any Mortgage Loan, it shall cure such breach
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in all material respects, and if such breach is not so cured, shall, (i) if
the 90 day period expires before the second anniversary of the Closing Date,
remove the Mortgage Loan (a "Deleted Mortgage Loan") from the Trust Fund and
substitute in its place a Substitute Mortgage Loan, in accordance with this
Section 2.03; or (ii) repurchase the affected Mortgage Loan or Mortgage Loans
from the Trustee at the Purchase Price in the manner set forth below. Any
substitution pursuant to (i) above shall not be effected before the delivery
to the Trustee of the Opinion of Counsel required by Section 2.05 and a
Request for Release substantially in the form of Exhibit N, and the Mortgage
File for any Substitute Mortgage Loan. Anything to the contrary herein
notwithstanding, Seller shall have no obligation to cure any breach or to
repurchase or substitute for the affected Mortgage Loan if the substance of
the breach constitutes fraud in the origination of the affected Mortgage Loan
and the Seller, at the time of origination and on the Closing Date, did not
have actual knowledge of the fraud. The Seller shall promptly reimburse the
Master Servicer and the Trustee for any expenses reasonably incurred by the
Master Servicer or the Trustee in respect of enforcing the remedies for the
breach.
With respect to any Substitute Mortgage Loan or Loans, the Seller shall
deliver to the Trustee for the benefit of the Certificateholders the Mortgage
Note, the Mortgage, the related assignment of the Mortgage, and any other
documents and agreements required by Section 2.01, with the Mortgage Note
endorsed and the Mortgage assigned as required by Section 2.01. No
substitution is permitted to be made in any calendar month after the
Determination Date for the month. Scheduled Payments due with respect to
Substitute Mortgage Loans in the Remittance Period of substitution shall not
be part of the Trust Fund and will be retained by the Seller on the next
Distribution Date. For the Remittance Period of substitution, distributions to
Certificateholders will include the monthly payment due on any Deleted
Mortgage Loan for the Remittance Period and thereafter the Seller shall be
entitled to retain all amounts received with respect to the Deleted Mortgage
Loan.
The Master Servicer shall amend the Mortgage Loan Schedule for the
benefit of the Certificateholders to reflect the removal of the Deleted
Mortgage Loan and the substitution of the Substitute Mortgage Loans and the
Master Servicer shall deliver the amended Mortgage Loan Schedule to the
Trustee. Upon the substitution, the Substitute Mortgage Loans shall be subject
to this Agreement in all respects, and the Seller shall be deemed to have made
with respect to the Substitute Mortgage Loans, as of the date of substitution,
the representations and warranties made pursuant to Section 2.03(b) with
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
II-9
designee, the Trustee's interest in any Deleted Mortgage Loan substituted for
pursuant to this Section 2.03.
For any month in which the Seller substitutes one or more Substitute
Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer
will determine the amount by which the aggregate principal balance of all such
Substitute Mortgage Loans as of the date of substitution is less than the
aggregate Stated Principal Balance of all the Deleted Mortgage Loans (after
application of the scheduled principal portion of the monthly payments due in
the Remittance Period of substitution). The amount of the shortage (the
"Substitution Adjustment Amount") plus, if the Seller is not the Master
Servicer, the aggregate of any unreimbursed Advances and Servicing Advances
with respect to the Deleted Mortgage Loans shall be deposited into the
Certificate Account by the Seller by the Distribution Account Deposit Date for
the Distribution Date in the month succeeding the calendar month during which
the related Mortgage Loan became required to be purchased or replaced
hereunder.
If the Seller repurchases a Mortgage Loan, the Purchase Price therefor
shall be deposited in the Certificate Account pursuant to Section 3.06 by the
Distribution Account Deposit Date for the Distribution Date in the month
following the month during which the Seller became obligated hereunder to
repurchase or replace the Mortgage Loan and upon such deposit of the Purchase
Price, the delivery of the Opinion of Counsel required by Section 2.05 and
receipt of a Request for Release in the form of Exhibit N, the Trustee shall
release the related Mortgage File held for the benefit of the
Certificateholders to such Person, and the Trustee shall execute and deliver
at such Person's direction such instruments of transfer or assignment prepared
by such Person, in each case without recourse, as shall be necessary to
transfer title from the Trustee. The obligation under this Agreement of any
Person to cure, repurchase, or replace any Mortgage Loan as to which a breach
has occurred and is continuing shall constitute the sole remedy against the
Person respecting the breach available to Certificateholders, the Depositor,
or the Trustee on their behalf.
The representations and warranties made pursuant to this Section 2.03
shall survive delivery of the respective Mortgage Files to the Trustee for the
benefit of the Certificateholders.
Section 2.04. Representations and Warranties of the
Depositor as to the Mortgage Loans.
The Depositor hereby represents and warrants to the Trustee with respect
to each Mortgage Loan as of the date hereof or such other date set forth
herein that as of the Closing Date (or, for a Subsequent Mortgage Loan, the
Subsequent Transfer Date), and following the transfer of the Mortgage Loans to
it by the Seller, the Depositor had good title to the Mortgage Loans and the
Mortgage Notes were subject to no offsets, defenses, or counterclaims.
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The Depositor hereby transfers to the Trustee all of its rights with
respect to the Mortgage Loans including the representations and warranties of
the Seller made pursuant to Section 2.03(b), together with all rights of the
Depositor to require the Seller to cure any breach thereof or to repurchase or
substitute for any affected Mortgage Loan in accordance with this Agreement.
The representations and warranties in this Section 2.04 shall survive
delivery of the Mortgage Files to the Trustee. Upon discovery by the Depositor
or the Trustee of any breach of any of the representations and warranties in
this Section that materially and adversely affects the interest of the
Certificateholders, the party discovering the breach shall give prompt written
notice to the others and to each Rating Agency.
Section 2.05. Delivery of Opinion of Counsel in
Connection with Substitutions and
Repurchases.
(a) Notwithstanding any contrary provision of this Agreement, no
substitution pursuant to Section 2.02 or 2.03 shall be made more than 90 days
after the Closing Date unless the Seller delivers to the Trustee an Opinion of
Counsel, which Opinion of Counsel shall not be at the expense of either the
Trustee or the Trust Fund, addressed to the Trustee, to the effect that such
substitution will not (i) result in the imposition of the tax on "prohibited
transactions" on the Trust Fund or contributions after the Startup Date, as
defined in Sections 860F(a)(2) and 860G(d) of the Code, respectively or (ii)
cause the Trust Fund to fail to qualify as a REMIC at any time that any
Certificates are outstanding.
(b) Upon discovery by the Depositor, the Seller, the Master Servicer or
the Trustee that any Mortgage Loan does not constitute a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code, the party discovering
such fact shall promptly (and in any event within five Business Days of
discovery) give written notice thereof to the other parties. In connection
therewith, the Trustee shall require the Seller, at the Seller's option, to
either (i) substitute, if the conditions in Section 2.03(c) with respect to
substitutions are satisfied, a Substitute Mortgage Loan for the affected
Mortgage Loan, or (ii) repurchase the affected Mortgage Loan within 90 days of
such discovery in the same manner as it would a Mortgage Loan for a breach of
representation or warranty made pursuant to Section 2.03. The Trustee shall
reconvey to the Seller the Mortgage Loan to be released pursuant hereto in the
same manner, and on the same terms and conditions, as it would a Mortgage Loan
repurchased for breach of a representation or warranty contained in Section
2.03.
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
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and exercise the rights referred to above for the benefit of all present and
future Holders of the Certificates.
Section 2.07. REMIC Matters.
The Preliminary Statement sets forth the designations and "latest
possible maturity date" for federal income tax purposes of all interests
created hereby. The "Startup Day" for purposes of the REMIC Provisions shall
be the Closing Date.
Section 2.08. Covenants of the Master Servicer.
The Master Servicer hereby covenants to the Depositor and the
Trustee as follows:
(a) the Master Servicer shall comply in the performance of its
obligations under this Agreement with all reasonable rules and requirements of
the insurer under each Required Insurance Policy; and
(b) no written information, certificate of an officer, statement
furnished in writing or written report delivered to the Depositor, any
affiliate of the Depositor or the Trustee and prepared by the Master Servicer
pursuant to this Agreement will contain any untrue statement of a material
fact or omit to state a material fact necessary to make such information,
certificate, statement, or report not misleading.
Section 2.09. Subsequent Transfers.
(a) Upon five Business Days prior written notice to the
Trustee, the Depositor, the Seller, and the Trustee shall complete, execute,
and deliver a Subsequent Transfer Agreement. Subject to the satisfaction of
the conditions in Article II and paragraph (b) below and pursuant to the
related Subsequent Transfer Agreement, in consideration of the Trustee's
delivery on each Subsequent Transfer Date to the order of the Seller of all or
a portion of the balance of funds in the Pre-Funding Accounts (net of
investment earnings), the Seller shall on each Subsequent Transfer Date
transfer to the Depositor, without recourse, all the interest of the Seller in
each Subsequent Mortgage Loan listed on the Mortgage Loan Schedule delivered
by the Seller on the Subsequent Transfer Date, including all interest and
principal received or receivable by the Seller on or with respect to each
Subsequent Mortgage Loan after the related Cut-off Date and all interest and
principal payments on each Subsequent Mortgage Loan received by the related
Cut-off Date in respect of installments of interest and principal due
thereafter, but not including payments of principal and interest due and
payable on each Subsequent Mortgage Loan by the related Cut-off Date, and the
Depositor shall simultaneously transfer to the Trustee for the benefit of the
Certificateholders, without recourse, all the interest of the Depositor in
each Subsequent Mortgage Loan listed on the Mortgage Loan Schedule delivered
by the Seller on the Subsequent Transfer Date, including all interest and
principal received or receivable by the Depositor on or with respect to each
Subsequent Mortgage Loan after the related Cut-off Date and all interest and
principal payments on each Subsequent Mortgage Loan received before the
related Cut-off Date in
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respect of installments of interest and principal due thereafter, but not
including payments of principal and interest due and payable on each
Subsequent Mortgage Loan by the related Cut-off Date.
(b) If the assignment and transfer of the Subsequent Mortgage Loans and
the other property specified in this Section 2.09 from the Seller to the
Depositor pursuant to this Agreement is held or deemed not to be a sale or is
held or deemed to be a pledge of security for a loan, the Seller intends that
the rights and obligations of the parties shall be established pursuant to
this Agreement and that, in such event, (i) the Seller shall be deemed to have
granted and does hereby grant to the Depositor as of each Subsequent Transfer
Date a perfected, first priority security interest in the entire interest of
the Seller in the related Subsequent Mortgage Loans and all other property
conveyed to the Depositor pursuant to this Section 2.09 and all proceeds
thereof, and (ii) this Agreement shall constitute a security agreement under
applicable law.
If the assignment and transfer of the Subsequent Mortgage Loans and the
other property specified in this Section 2.09 from the Depositor to the
Trustee pursuant to this Agreement is held or deemed not to be a sale or is
held or deemed to be a pledge of security for a loan, the Depositor intends
that the rights and obligations of the parties shall be established pursuant
to this Agreement and that, in such event, (i) the Depositor shall be deemed
to have granted and does hereby grant to the Trustee as of each Subsequent
Transfer Date a perfected, first priority security interest in the entire
interest of the Depositor in the related Subsequent Mortgage Loans and all
other property conveyed to the Trust Fund pursuant to this Section 2.09 and
all proceeds thereof, and (ii) this Agreement shall constitute a security
agreement under applicable law.
(c) The amount released from the Group 1 Pre-Funding Account by the
Trustee pursuant to this Section 2.09 shall be the aggregate Cut-off Date
Principal Balance of the Subsequent Mortgage Loans so transferred to Loan
Group 1. The amount released from the Group 2 Pre-Funding Account by the
Trustee pursuant to this Section 2.09 shall be the aggregate Cut-off Date
Principal Balance of the Subsequent Mortgage Loans so transferred to Loan
Group 2.
(d) The Trustee shall contribute from the Pre-Funding Accounts funds in
an amount equal to the aggregate Cut-off Date Principal Balance of the
Subsequent Mortgage Loans so transferred to the Trust Fund to purchase the
Subsequent Mortgage Loans on behalf of the Trust Fund, along with the other
property and rights related thereto described in Section 2.09(a) only upon the
satisfaction of each of the following conditions:
(i) the Trustee will be provided Opinions of Counsel addressed to
the Rating Agencies with respect to the sale of the Subsequent Mortgage
Loans conveyed on the Subsequent Transfer Date (the opinions being
substantially similar
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to the opinions delivered on the Closing Date to the Rating Agencies with
respect to the sale of the Initial Mortgage Loans on the Closing Date);
(ii) the execution and delivery of the Subsequent Transfer
Agreement or conveyance of the related Subsequent Mortgage Loans does
not result in a reduction or withdrawal of the any ratings assigned to
the Certificates by the Ratings Agencies;
(iii) the Depositor shall deliver to the Trustee an Officer's
Certificate confirming the satisfaction of each of the conditions in
Article II and this Section 2.09(d) required to be satisfied by the
Subsequent Transfer Date;
(iv) each Subsequent Mortgage Loan conveyed on the Subsequent
Transfer Date satisfies the representations and warranties applicable to
it under this Agreement;
(v) the Subsequent Mortgage Loans conveyed on the Subsequent
Transfer Date were selected in a manner reasonably believed not to be
adverse to the interests of the Certificateholders;
(vi) no Subsequent Mortgage Loan conveyed on the Subsequent
Transfer Date was 30 or more days delinquent;
(vii) each Subsequent Mortgage Loan conveyed on the Subsequent
Transfer Date that is an Adjustable Rate Mortgage Loan is secured by a
first lien on the related Mortgaged Property;
(viii) following the conveyance of the Subsequent Mortgage Loans
on the Subsequent Transfer Date to the related Loan Group, the
characteristics of the Loan Group listed below will not vary by more
than the permitted variance listed below for each characteristic with
respect to the Initial Mortgage Loans as set forth on the Mortgage Loan
Schedule delivered on the Closing Date; provided that for the purpose of
making the calculations, the characteristics for each Mortgage Loan made
will be taken as of the related Cut-off Date for the Mortgage Loan:
Loan Group 1: Variation
Loan Weighted Average Coupon:.................. -0.01%
Weighted Average Maturity...................... +/- 1 month
Weighted Average Combined Loan-to-Value Ratio:. + 0.61%
Weighted Average FICO Score.................... -5 points
Balloon Loans:................................. + 0.01%
Maximum Principal Balance...................... + 2.00%
State Concentration:........................... + 1.01%
Zip Code Concentration:........................ + 2.00%
Non-Owner Occupied:............................ + 0.71%
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Second Liens:.................................. + 0.11%
Manufactured Housing:.......................... + 2.27%
Loan Group 2: Variation
Loan Weighted Average Coupon:.................. - 0.01%
Weighted Average Maturity...................... +/- 1 month
Weighted Average Combined Loan-to-Value Ratio:. + 0.34%
Weighted Average FICO Score.................... -5 points
Performance Loans:............................. + 0.00%
Maximum Principal Balance...................... + $0.00
State Concentration:........................... + 1.00%
Zip Code Concentration:........................ + 2.00%
Non-Owner Occupied:............................ + 0.24%
First Liens:................................... + 0.00%
Manufactured Housing:.......................... + 0.02%
(ix) neither the Seller nor the Depositor is insolvent and neither
the Seller nor the Depositor will be rendered insolvent by the
conveyance of Subsequent Mortgage Loans on the Subsequent Transfer Date;
(x) delivery of a letter or letters addressed to the Trustee from
an independent accountant retained by the Depositor confirming that the
characteristics of each Loan Group, following the acquisition of the
related Subsequent Mortgage Loans, conform to the characteristics
identified in this Section 2.09(d);
(xi) delivery to the Trustee of an Opinion of Counsel, which
Opinion of Counsel shall not be at the expense of either the Trustee or
the Trust Fund, addressed to the Trustee, to the effect that the
purchase of Subsequent Mortgage Loans will not (i) result in the
imposition of the tax on "prohibited transactions" on the Trust Fund or
contributions after the Startup Date, as defined in Sections 860F(a)(2)
and 860G(d) of the Code, respectively or (ii) cause the Trust Fund to
fail to qualify as a REMIC at any time that any Certificates are
outstanding; and
(xii) delivery to the Trustee of the Mortgage File for each
Subsequent Mortgage Loan to be transferred pursuant to the related
Subsequent Transfer Agreement.
The Trustee shall not be required to investigate or otherwise verify
compliance with these conditions, except for its own receipt of documents
specified above, and shall be entitled to rely on the required Officer's
Certificate.
(e) In connection with each Subsequent Transfer Date and on the related
Distribution Date, the Seller shall determine (i) the amount and correct
dispositions of the funds distributed from the Capitalized Interest Accounts
and the Pre-Funding Accounts and
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(ii) any other necessary matters in connection with the administration of the
Capitalized Interest Accounts and the Pre-Funding Accounts. If the Trustee
releases any amounts from a Pre-Funding Account or from a Capitalized Interest
Account because of the Seller's calculation error, the Trustee shall not be
liable therefor, and the Seller shall immediately repay the amounts to the
Trustee.
Section 2.10. Mandatory Prepayment.
Any Unused Pre-Funding Amount shall be distributed to Holders of the
related Group of Certificates in accordance with Section 4.02 on the
Distribution Date following the Pre-Funding Period in which the end of the
Pre-Funding Period occurs.
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ARTICLE THREE
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01. Master Servicer to Service Mortgage
Loans.
For and on behalf of the Certificateholders, the Master Servicer shall
service and administer the Mortgage Loans in accordance with this Agreement
and the Servicing Standard. In connection with such servicing and
administration, the Master Servicer shall have full power and authority,
acting alone or through Subservicers as provided in Section 3.02, to do
anything that it may deem appropriate in connection with servicing and
administration, including the power and authority, subject to the terms
hereof,
(i) to execute and deliver, on behalf of the Certificateholders and the
Trustee, customary consents or waivers and other instruments and documents,
(ii) to consent to transfers of any Mortgaged Property and assumptions
of the Mortgage Notes and related Mortgages (but only in the manner provided
in this Agreement),
(iii) to collect any Insurance Proceeds and other Liquidation Proceeds,
and
(iv) to effectuate foreclosure or other conversion of the ownership of
the Mortgaged Property securing any Mortgage Loan.
The Master Servicer shall not make or permit any modification, waiver,
or amendment of any term of any Mortgage Loan that would cause the Trust Fund
to fail to qualify as a REMIC or result in the imposition of any tax under
Section 860F(a) or Section 860G(d) of the Code.
Without limiting the generality of the foregoing, the Master Servicer,
in its own name or in the name of any Servicer or the Depositor and the
Trustee, is hereby authorized and empowered by the Depositor and the Trustee,
when the Master Servicer or the Servicer, as the case may be, believes it
appropriate in its reasonable judgment, to execute and deliver, on behalf of
the Trustee, the Depositor, the Certificateholders, or any of them, any
instruments of satisfaction or cancellation, or of partial or full release or
discharge, and all other comparable instruments, with respect to the Mortgage
Loans, and with respect to the Mortgaged Properties held for the benefit of
the Certificateholders. The Master Servicer shall prepare and deliver to the
Depositor or the Trustee any documents requiring execution and delivery by
either or both of them appropriate to enable the Master Servicer to service
and administer the Mortgage Loans to the extent that the Master Servicer is
not permitted to execute and deliver such documents pursuant to the preceding
sentence. Upon receipt of the documents, the Depositor or the Trustee shall
execute the documents and deliver them to the Master Servicer.
In accordance with and to the extent of the Servicing Standard, the
Master Servicer shall advance funds necessary to effect the payment of taxes
and assessments on the Mortgaged Properties, which advances shall be
reimbursable in the first instance from related collections
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from the Mortgagors pursuant to Section 3.07, and further as provided in
Section 3.09. The costs incurred by the Master Servicer in effecting the
timely payments of taxes and assessments on the Mortgaged Properties and
related insurance premiums shall not, for the purpose of calculating monthly
distributions to the Certificateholders, be added to the Stated Principal
Balances of the related Mortgage Loans, notwithstanding that the Mortgage
Loans so permit.
Section 3.02. Subservicing; Enforcement of the
Obligations of Subservicers.
(a) The Master Servicer may arrange for the subservicing of any Mortgage
Loan by a subservicer pursuant to a subservicing agreement (a "Subservicer").
The subservicing arrangement and the related subservicing agreement must
provide for the servicing of the Mortgage Loans in a manner consistent with
the servicing arrangements contemplated hereunder. Unless the context
otherwise requires, references in this Agreement to actions taken or to be
taken by the Master Servicer in servicing the Mortgage Loans include actions
taken or to be taken by a Subservicer on behalf of the Master Servicer.
Notwithstanding anything in any subservicing agreement or this Agreement
relating to agreements or arrangements between the Master Servicer and a
Subservicer or references to actions taken through a Subservicer or otherwise,
the Master Servicer shall remain obligated and liable to the Trustee and
Certificateholders for the servicing and administration of the Mortgage Loans
in accordance with this Agreement without diminution of its obligation or
liability by virtue of the subservicing agreements or arrangements or by
virtue of indemnification from the Subservicer and to the same extent and
under the same terms as if the Master Servicer alone were servicing and
administering the Mortgage Loans. All actions of each Subservicer performed
pursuant to the related subservicing agreement shall be performed as agent of
the Master Servicer with the same effect as if performed directly by the
Master Servicer.
(b) For purposes of this Agreement, the Master Servicer shall be deemed
to have received any collections, recoveries, or payments with respect to the
Mortgage Loans that are received by the Subservicer regardless of whether the
payments are remitted by the Subservicer to the Master Servicer.
Section 3.03. [Reserved].
Section 3.04. No Contractual Relationship Between
Subservicers and the Trustee.
Any subservicing arrangement that may be entered into and any
other transactions or services relating to the Mortgage Loans involving a
Subservicer in its capacity as such shall be deemed to be solely between the
Subservicer and the Master Servicer alone, and the Trustee and
Certificateholders shall not be deemed parties thereto and shall have no
claims, rights, obligations, duties, or liabilities with respect to the
Subservicer in its capacity as such except as set forth in Section 3.05.
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Section 3.05. Trustee to Act as Master Servicer.
If the Master Servicer for any reason is no longer the Master
Servicer hereunder (including because of an Event of Default), the Trustee or
its successor shall thereupon assume all of the rights and obligations of the
Master Servicer hereunder arising thereafter (except that the Trustee shall
not be
(i) liable for losses of the Master Servicer pursuant to Section 3.10 or
any acts or omissions of the predecessor Master Servicer hereunder),
(ii) obligated to make Advances if it is prohibited from doing so by
applicable law,
(iii) obligated to effectuate repurchases or substitutions of Mortgage
Loans hereunder, including repurchases or substitutions pursuant to Section
2.02 or 2.03,
(iv) responsible for expenses of the Master Servicer pursuant to Section
2.03, or
(v) deemed to have made any representations and warranties of the Master
Servicer hereunder. Any assumption shall be subject to Section 7.02.
Every subservicing agreement entered into by the Master Servicer shall
contain a provision giving the successor Master Servicer the option to
terminate the agreement if a successor Master Servicer is appointed.
If the Master Servicer is no longer the Master Servicer for any reason
(including because of any Event of Default), the Trustee (or any other
successor Master Servicer) may, at its option, succeed to any rights and
obligations of the Master Servicer under any subservicing agreement in
accordance with its terms. The Trustee (or any other successor Master
Servicer) shall not incur any liability or have any obligations in its
capacity as successor Master Servicer under a subservicing agreement arising
before the date of succession unless it expressly elects to succeed to the
rights and obligations of the Master Servicer thereunder; and the Master
Servicer shall not thereby be relieved of any liability or obligations under
the subservicing agreement arising before the date of succession.
The Master Servicer shall, upon request of the Trustee, but at the
expense of the Master Servicer, deliver to the assuming party all documents
and records relating to each subservicing agreement and the Mortgage Loans
then being serviced thereunder and an accounting of amounts collected held by
it and otherwise use its best efforts to effect the orderly and efficient
transfer of the subservicing agreement to the assuming party.
Notwithstanding anything else in this Agreement to the contrary, in no
event shall the Trustee be liable for any servicing fee or for any
differential in the amount of the servicing fee paid under this Agreement and
the amount necessary to induce any successor Master Servicer to act as
successor Master Servicer under this Agreement and the transactions provided
for in this Agreement.
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Section 3.06. Collection of Mortgage Loan Payments; Servicing
Accounts; Collection Account; Certificate Account;
Distribution Account; Pre-Funding Accounts; Capitalized
Interest Accounts.
(a) In accordance with and to the extent of the Servicing Standard, the
Master Servicer shall make reasonable efforts in accordance with the customary
and usual standards of practice of prudent mortgage servicers to collect all
payments called for under the Mortgage Loans to the extent the procedures are
consistent with this Agreement and any related Required Insurance Policy.
Consistent with the foregoing, the Master Servicer may in its discretion (i)
waive any late payment charge or any prepayment charge or penalty interest in
connection with the prepayment of a Mortgage Loan and (ii) extend the due
dates for payments due on a Mortgage Note for a period not greater than 125
days. However, the Master Servicer cannot extend the maturity of any Mortgage
Loan past the date on which the final payment is due on the latest maturing
Mortgage Loan in the applicable Loan Group as of the related Cut-off Date. In
the event of any such arrangement, the Master Servicer shall make Advances on
the related Mortgage Loan in accordance with Section 4.01 during the scheduled
period in accordance with the amortization schedule of the Mortgage Loan
without modification thereof because of the arrangements. The Master Servicer
shall not be required to institute or join in litigation with respect to
collection of any payment (whether under a Mortgage, Mortgage Note, or
otherwise or against any public or governmental authority with respect to a
taking or condemnation) if it reasonably believes that enforcing the provision
of the Mortgage or other instrument pursuant to which the payment is required
is prohibited by applicable law.
(b) The Master Servicer shall establish and maintain (or, if a Mortgage
Loan is subserviced by another Person, cause the related Subservicer to
establish and maintain) one or more Servicing Accounts into which the Master
Servicer shall deposit on a daily basis within one Business Day of receipt,
the following payments and collections received by it or remitted by any
Subservicer in respect of Mortgage Loans after the related Cut-off Date (other
than in respect of principal and interest due on the Mortgage Loans by the
related Cut-off Date):
(i) all payments on account of principal on the Mortgage Loans,
including Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans,
net of the related Servicing Fee and, in cases where the Master Servicer
maintains the Servicing Account, the related Master Servicer Fee; and
(iii) all Insurance Proceeds and Liquidation Proceeds, other than
proceeds to be applied to the restoration or repair of the Mortgaged
Property or released to the Mortgagor in accordance with the Master
Servicer's normal servicing procedures.
By the Withdrawal Date in each calendar month, the Master Servicer shall
(a) withdraw from the Servicing Account all amounts on deposit therein
pursuant to clauses (i) and (ii) above
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(other than amounts attributable to a Principal Prepayment in Full) and (b)
deposit such amounts in the Collection Account. By the Business Day in each
calendar month following the deposit in the Servicing Account of amounts on
deposit therein pursuant to clause (iii) above or pursuant to any Principal
Prepayment in Full, the Master Servicer shall (a) withdraw such amounts from
the Servicing Account and (b) deposit such amounts in the Collection Account.
(c) The Master Servicer shall establish and maintain a Collection
Account into which the Master Servicer shall deposit, as and when required by
paragraph (b) of this Section 3.06, all amounts required to be deposited into
the Collection Account pursuant to that paragraph.
(d) The Master Servicer shall establish and maintain a Certificate
Account into which the Master Servicer shall deposit on a daily basis (i)
within one Business Day of deposit in the Collection Account (in the case of
items (i) through (iii) below) and (2) within one Business Day of receipt (in
the case of all other items), except as otherwise specified herein, the
following payments and collections received by it or remitted by any
Subservicer in respect of Mortgage Loans after the related Cut-off Date (other
than in respect of principal and interest due on the Mortgage Loans by the
related Cut-off Date) and the following amounts required to be deposited
hereunder:
(i) all payments on account of principal on the Mortgage Loans,
including Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans,
net of the related Servicing Fee and the related Master Servicing Fee;
(iii) all Insurance Proceeds and Liquidation Proceeds, other than
proceeds to be applied to the restoration or repair of the Mortgaged
Property or released to the Mortgagor in accordance with the Master
Servicer's normal servicing procedures;
(iv) [Reserved];
(v) any amounts required to be deposited by the Master Servicer
pursuant to Sections 3.12 and 3.14;
(vi) all Purchase Prices from the Master Servicer or Seller and
all Substitution Adjustment Amounts;
(vii) all Advances made by the Master Servicer pursuant to Section
4.01;
(viii) any other amounts required to be deposited hereunder; and
(ix) all Prepayment Charges collected.
In addition, with respect to any Mortgage Loan that is subject to a
buydown agreement, on each Due Date for the Mortgage Loan, in addition to the
monthly payment remitted by the Mortgagor, the Master Servicer shall cause
funds to be deposited into the Certificate Account in an amount required to
cause an amount of interest to be paid with respect to the Mortgage Loan
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equal to the amount of interest that has accrued on the Mortgage Loan from the
preceding Due Date at the Mortgage Rate net of the Master Servicing Fee on
that date.
The foregoing requirements for remittance by the Master Servicer shall
be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of late payment charges or
assumption fees, if collected, need not be remitted by the Master Servicer. If
the Master Servicer remits any amount not required to be remitted, it may at
any time withdraw that amount from the Certificate Account, any provision
herein to the contrary notwithstanding. The withdrawal or direction may be
accomplished by delivering written notice of it to the Trustee or any other
institution maintaining the Certificate Account that describes the amounts
deposited in error in the Certificate Account. The Master Servicer shall
maintain adequate records with respect to all withdrawals made pursuant to
this Section 3.06. All funds deposited in the Certificate Account shall be
held in trust for the Certificateholders until withdrawn in accordance with
Section 3.09.
(e) --
(i) The Trustee shall establish and maintain the Excess Reserve
Fund Account, on behalf of the Class X Certificateholder and the Class P
Certificateholder, to secure their limited recourse obligation to pay to
the other Certificateholders Basis Risk CarryForward Amounts.
(ii) On the Closing Date, the Depositor shall deposit into the
Excess Reserve Fund Account $10,000.
(iii) On each Distribution Date, the Trustee shall deposit the
amount of any Basis Risk Payment for that date into the Excess Reserve
Fund Account.
(iv) The Trustee shall invest amounts held in the Excess Reserve
Fund Account only in Permitted Investments. The Class X
Certificateholder shall direct the Trustee in writing with respect to
investment of amounts in the Excess Reserve Fund.
(f) --
(i) On each Distribution Date on which a Basis Risk CarryForward
Amount exists for any Class of Certificates, the Trustee shall withdraw
from the Excess Reserve Fund Account amounts necessary to pay to the
Class of Certificates the Basis Risk CarryForward Amount. Such payments
shall be allocated to those Classes on a pro rata basis based upon the
amount of Basis Risk CarryForward Amount owed to each Class and shall be
paid in the priority in Section 4.02(I)(iii)(b) and 4.02(I)(iii)(k).
(ii) The Trustee shall account for the Excess Reserve Fund Account
as an outside reserve fund within the meaning of Treasury regulation
1.860G-2(h) and not an asset of any REMIC created pursuant to this
Agreement. The owners of the Excess Reserve Fund Account are the Class X
Certificateholder and, to the extent a Pledged Prepayment Penalty Amount
is transferred to the Excess Reserve Fund Account, the
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Class P Certificateholder. The Trustee shall treat amounts transferred by
the Upper Tier REMIC to the Excess Reserve Fund Account as distributions
to the Class X Certificateholder or, to the extent of the Pledged
Prepayment Penalty Amount, the Class P Certificateholder for all Federal
tax purposes.
(iii) Any Basis Risk CarryForward Amounts paid by the Trustee to
the Certificateholders shall be accounted for by the Trustee as amounts
paid to the Holder of the Class X Certificate to the extent not paid
from the Pledged Prepayment Penalty Amount. Any Basis Risk CarryForward
Amounts paid by the Trustee to the Certificateholders from the Pledged
Prepayment Penalty Amount shall be accounted for by the Trustee as
amounts paid to the Holders of the Class P Certificate. In addition, the
Trustee shall account for the Certificateholders' rights to receive
payments of Basis Risk CarryForward Amounts as rights in a limited
recourse interest rate cap contract written by the Class X
Certificateholder and the Class P Certificateholder in favor of the
other Certificateholders.
(iv) Notwithstanding any provision contained in this Agreement,
the Trustee shall not be required to make any payments from the Excess
Reserve Fund Account except as expressly set forth in this Section
3.06(f).
(g) The Trustee shall establish and maintain the Distribution Account on
behalf of the Certificateholders. The Trustee shall, promptly upon receipt,
deposit in the Distribution Account and retain therein the following:
(i) the aggregate amount remitted by the Master Servicer to the
Trustee pursuant to Section 3.09(a);
(ii) any amount deposited by the Master Servicer pursuant to
Section 3.06(h) in connection with any losses on Permitted Investments;
and
(iii) any other amounts deposited hereunder which are required to
be deposited in the Distribution Account.
If the Master Servicer remits any amount not required to be remitted, it
may at any time direct the Trustee in writing to withdraw that amount from the
Distribution Account, any provision herein to the contrary notwithstanding.
The direction may be accomplished by delivering an Officer's Certificate to
the Trustee that describes the amounts deposited in error in the Distribution
Account. All funds deposited in the Distribution Account shall be held by the
Trustee in trust for the Certificateholders until disbursed in accordance with
this Agreement or withdrawn in accordance with Section 3.09. In no event shall
the Trustee incur liability for withdrawals from the Distribution Account at
the direction of the Master Servicer.
(h) Each institution at which the Certificate Account is maintained
shall invest the funds therein as directed in writing by the Master Servicer
in Permitted Investments, which shall mature not later than the second
Business Day preceding the related Distribution Account
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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 shall not be sold or disposed of before its maturity. All
Permitted Investments shall be made in the name of the Trustee, for the
benefit of the Certificateholders. All income and gain (net of any losses)
realized from any investment of funds on deposit in the Certificate Account
shall be for the benefit of the Master Servicer as servicing compensation and
shall be remitted to it monthly as provided herein. The amount of any realized
losses on Permitted Investments in the Certificate Account shall promptly be
deposited by the Master 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.
The Trustee shall invest funds in the Capitalized Interest Accounts or
Pre-Funding Accounts as directed in writing by the Master Servicer in
Permitted Investments, which shall mature not later than the Business Day next
preceding the Distribution Date (except that if such Permitted Investment is
an obligation of the institution that maintains such account, then such
Permitted Investment shall mature not later than the Distribution Date) and,
in each case, shall not be sold or disposed of before its maturity. All such
Permitted Investments shall be made in the name of the Trustee, for the
benefit of the Certificateholders.
(i) The Trustee shall establish and maintain, on behalf of the
Certificateholders, two separate accounts denominated the Group 1 Pre-Funding
Account and the Group 2 Pre-Funding Account in the name of the Trustee. Each
of the Pre-Funding Accounts shall be treated as an "outside reserve fund"
under applicable Treasury regulations and shall not be part of any REMIC. Any
investment earnings on the Pre-Funding Accounts shall be treated as owned by
the Seller and will be taxable to the Seller. On the Closing Date, the Seller
shall remit $49,674,967.20 to the Trustee for deposit in the Pre-Funding
Accounts. The Trustee shall allocate (i) $20,998,601.23 of the amount to the
Group 1 Pre-Funding Account for the purchase of Subsequent Mortgage Loans to
be included in Loan Group 1 and (ii) $28,676,365.97 of the amount to the Group
2 Pre-Funding Account for the purchase of Subsequent Mortgage Loans to be
included in Loan Group 2.
The Trustee shall establish and maintain, on behalf of the
Certificateholders, two separate accounts denominated the Group 1 Capitalized
Interest Account and the Group 2 Capitalized Interest Account in the name of
the Trustee. Each of the Capitalized Interest Accounts shall be treated as an
"outside reserve fund" under applicable Treasury regulations and shall not be
part of the REMIC. Any investment earnings on the Capitalized Interest
Accounts shall be treated as owned by the Seller and will be taxable to the
Seller.
On each Subsequent Transfer Date, upon satisfaction of the conditions in
Section 2.09, the Trustee shall withdraw from the related Pre-Funding Accounts
100% of the aggregate of the Cut-off Date Principal Balances of the Subsequent
Mortgage Loans sold to the Trust Fund for
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inclusion in Loan Group 1 or Loan Group 2, as the case may be, on the
Subsequent Transfer Date and pay that amount to the order of the Seller.
On the Business Day before the Distribution Date following the
Remittance Period in which the Pre-Funding Period ends, the Trustee shall (i)
withdraw the Unused Pre-Funding Amount from each of the Pre-Funding Accounts,
(ii) promptly deposit each amount in the Distribution Account, and (iii)
distribute each amount to the related Certificate Group on the Distribution
Date pursuant to Section 4.02.
The amount deposited in the Distribution Account pursuant to the
preceding paragraph shall be net of any investment earnings on the amounts on
deposit in the Pre-Funding Accounts.
On the Business Day before each Distribution Date, through the
Distribution Date following the Remittance Period in which the Pre-Funding
Period ends, the Trustee shall transfer from each Capitalized Interest Account
to the Distribution Account the related Capitalized Interest Requirement and
shall distribute such amount to the related Certificate Group on the
Distribution Date pursuant to Section 4.02. To the extent that a Capitalized
Interest Requirement on any the Distribution Date exceeds the amounts on
deposit in the related Capitalized Interest Account, the Trustee shall
transfer to the Distribution Account, to the extent of the shortfall in the
Capitalized Interest Requirement, the investment earnings on the amounts on
deposit in the related Capitalized Interest Account and Pre-Funding Account.
The remaining investment earnings on deposit in the Capitalized Interest
Account and the Pre-Funding Account shall be transferred to the Seller.
All amounts remaining in the Capitalized Interest Accounts and any
investment earnings remaining in the Pre-Funding Accounts on the Distribution
Date following the Remittance Period in which the Pre-Funding Period ends
shall be transferred to the Seller.
(j) The Master Servicer shall give notice to the Trustee, the Seller,
each Rating Agency and the Depositor of any proposed change of the location of
the Certificate Account and the Collection Account not later than 30 days and
not more than 45 days before any change thereof.
Section 3.07. Collection of Taxes, Assessments and
Similar Items; Escrow Accounts.
(a) To the extent required by the related Mortgage Note and
not violative of current law, the Master Servicer shall establish and maintain
one or more accounts (each, an "Escrow Account") and deposit and retain
therein all collections from the Mortgagors (or advances) for the payment of
taxes, assessments, hazard insurance premiums or comparable items for the
account of the Mortgagors. Nothing herein shall require the Master Servicer to
compel a Mortgagor to establish an Escrow Account in violation of applicable
law.
(b) Withdrawals of amounts so collected from the Escrow Accounts may be
made only to effect timely payment of taxes, assessments, hazard insurance
premiums, condominium or PUD association dues, or comparable items, to
reimburse (without duplication) the Master
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Servicer out of related collections for any payments made pursuant to Sections
3.12 (with respect to taxes and assessments and insurance premiums) and 3.13
(with respect to hazard insurance), to refund to any Mortgagors any sums
determined to be overages, to pay interest, if required by law or the related
Mortgage or Mortgage Note, to Mortgagors on balances in the Escrow Account or
to clear and terminate the Escrow Account at the termination of this Agreement
in accordance with Section 9.01. The Escrow Accounts shall not be a part of
the Trust Fund.
(c) The Master Servicer shall advance any payments referred to in
Section 3.07(a) that are not timely paid by the Mortgagors or advanced by the
Master Servicer on the date when the tax, premium or other cost for which such
payment is intended is due, but the Master Servicer shall be required so to
advance only to the extent that such advances, in the good faith judgment of
the Master Servicer, will be recoverable by the Master Servicer out of
Insurance Proceeds, Liquidation Proceeds or otherwise.
Section 3.08. Access to Certain Documentation and
Information Regarding the Mortgage Loans.
The Master Servicer shall afford the Depositor and the Trustee
reasonable access to all records and documentation regarding the Mortgage
Loans and all accounts, insurance information and other matters relating to
this Agreement, such access being afforded without charge, but only upon
reasonable request and during normal business hours at the office designated
by the Master Servicer.
Upon reasonable advance notice in writing, the Master Servicer will
provide to each Certificateholder that is a savings and loan association,
bank, or insurance company certain reports and reasonable access to
information and documentation regarding the Mortgage Loans sufficient to
permit the Certificateholder to comply with applicable regulations of the OTS
or other regulatory authorities with respect to investment in the
Certificates. The Master Servicer shall be entitled to be reimbursed by each
such Certificateholder for actual expenses incurred by the Master Servicer in
providing the reports and access.
Section 3.09. Permitted Withdrawals from the
Certificate Account, the Distribution
Account and the Excess Reserve Fund Account.
(a) The Master Servicer may (and, in the case of clause (ix) below,
shall) from time to time make withdrawals from the Certificate Account for the
following purposes:
(i) to pay to the Master Servicer or the related Subservicer (to
the extent not previously retained) the servicing compensation to which
it is entitled pursuant to Section 3.15, and to pay to the Master
Servicer, as additional master servicing compensation, earnings on or
investment income with respect to funds in or credited to the
Certificate Account;
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(ii) to reimburse the Master Servicer for unreimbursed Advances
made by it, such right of reimbursement pursuant to this subclause (ii)
being limited to amounts received on the Mortgage Loans in respect of
which the Advance was made;
(iii) to reimburse the Master Servicer for any Nonrecoverable
Advance previously made;
(iv) to reimburse the Master Servicer for Insured Expenses from
the related Insurance Proceeds;
(v) to reimburse the Master Servicer for (a) unreimbursed
Servicing Advances, the Master Servicer's right to reimbursement
pursuant to this clause (a) with respect to any Mortgage Loan being
limited to amounts received on the Mortgage Loans that represent late
recoveries of the payments for which the advances were made pursuant to
Section 3.01 or Section 3.07 and (b) for unpaid Master Servicing Fees as
provided in Section 3.12;
(vi) to pay to the purchaser, with respect to each Mortgage Loan
or property acquired in respect thereof that has been purchased pursuant
to Section 2.02, 2.03, or 3.14, all amounts received thereon after the
date of such purchase;
(vii) to reimburse the Seller, the Master Servicer, or the
Depositor for expenses incurred by any of them and reimbursable pursuant
to Section 6.03;
(viii) to withdraw any amount deposited in the Certificate Account
and not required to be deposited therein;
(ix) by the Distribution Account Deposit Date, to withdraw (1) the
related Available Funds for both Loan Groups, the Trustee Fee for the
Distribution Date, and the amount of any insurance premiums payable
under (b)(ii) below, to the extent on deposit, and (2) the Prepayment
Charges on deposit, and remit such amount to the Trustee for deposit in
the Distribution Account; and
(x) to clear and terminate the Certificate Account upon
termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, to justify any withdrawal from the
Certificate Account pursuant to subclauses (i), (ii), (iv), (v), and (vi).
Before making any withdrawal from the Certificate Account pursuant to
subclause (iii), the Master Servicer shall deliver to the Trustee an Officer's
Certificate of a Servicing Officer indicating the amount of any previous
Advance determined by the Master Servicer to be a Nonrecoverable Advance and
identifying the related Mortgage Loans and their respective portions of the
Nonrecoverable Advance.
(b) The Trustee shall withdraw funds from the Distribution Account for
distributions to Certificateholders in the manner specified in this Agreement
(and to withhold from the amounts
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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 pay to MGIC all premiums due under the primary mortgage
guaranty insurance acquired by the Trust Fund from MGIC, to pay premiums
for any substitutions for that coverage, and to pay any applicable
premium taxes imposed on the Trust Fund required in any state;
(iii) to pay to the Master Servicer as additional servicing
compensation earnings on or investment income with respect to funds in
the Distribution Account;
(iv) to withdraw and return to the Master Servicer any amount
deposited in the Distribution Account and not required to be deposited
therein; and
(v) to clear and terminate the Distribution Account upon
termination of the Agreement pursuant to Section 9.01.
(c) On each Distribution Date, the Trustee shall make withdrawals from
the Excess Reserve Fund Account for deposit in the Distribution Account of the
amount required pursuant to Section 3.06(f). On the earlier of (i) the
termination of this Agreement pursuant to Section 9.01 and (ii) the later of
(x) the Distribution Date on which all of the Certificates (other than the
Class X Certificates) are reduced to zero and (y) the March 2004 Distribution
Date, any amount remaining on deposit in the Excess Reserve Fund Account after
giving effect to the requirements of the preceding sentence shall be withdrawn
by the Trustee and paid to the Class X Certificateholders.
Section 3.10. Maintenance of Hazard Insurance;
Maintenance of Primary Insurance Policies.
(a) The Master Servicer shall maintain, for each Mortgage Loan, hazard
insurance with extended coverage in an amount that is at least equal to the
lesser of
(i) the maximum insurable value of the improvements securing
the Mortgage Loan and
(ii) the greater of (y) the outstanding principal balance of the
Mortgage Loan and (z) an amount such that the proceeds of the policy are
sufficient to prevent the Mortgagor or the mortgagee from becoming a
co-insurer.
Each policy of standard hazard insurance shall contain, or have an
accompanying endorsement that contains, a standard mortgagee clause. Any
amounts collected under the policies (other than the amounts to be applied to
the restoration or repair of the related Mortgaged Property or amounts
released to the Mortgagor in accordance with the Master Servicer's normal
servicing procedures) shall be deposited in the Certificate Account. Any cost
incurred in maintaining any insurance shall not, for the purpose of
calculating monthly distributions to the Certificateholders
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or remittances to the Trustee for their benefit, be added to the principal
balance of the Mortgage Loan, notwithstanding that the Mortgage Loan so
permits. Such costs shall be recoverable by the Master Servicer out of late
payments by the related Mortgagor or out of Liquidation Proceeds to the extent
permitted by Section 3.09. No earthquake or other additional insurance is to
be required of any Mortgagor or maintained on property acquired in respect of
a Mortgage other than pursuant to any applicable laws and regulations in force
that require additional insurance. If the Mortgaged Property is located at the
time of origination of the Mortgage Loan in a federally designated special
flood hazard area and the area is participating in the national flood
insurance program, the Master Servicer shall maintain flood insurance for the
Mortgage Loan. The flood insurance shall be in an amount equal to the least of
(i) the original principal balance of the related Mortgage Loan, (ii) the
replacement value of the improvements that are part of the Mortgaged Property,
and (iii) the maximum amount of flood insurance available for the related
Mortgaged Property under the national flood insurance program.
If the Master Servicer obtains and maintains a blanket policy insuring
against hazard losses on all of the Mortgage Loans, it shall have satisfied
its obligations in the first sentence of this Section 3.10. The policy may
contain a deductible clause on terms substantially equivalent to those
commercially available and maintained by comparable servicers. If the policy
contains a deductible clause and a policy complying with the first sentence of
this Section 3.10 has not been maintained on the related Mortgaged Property,
and if a loss that would have been covered by the required policy occurs, the
Master Servicer shall deposit in the Certificate Account the amount not
otherwise payable under the blanket policy because of the deductible clause.
In connection with its activities as Master Servicer of the Mortgage Loans,
the Master Servicer agrees to present, on behalf of itself, the Depositor, and
the Trustee for the benefit of the Certificateholders, claims under any
blanket policy.
(b) The Master Servicer shall not take any action that would result in
non-coverage under any applicable Primary Insurance Policy or under the
primary mortgage guaranty insurance acquired by the Trust Fund from MGIC of
any loss that, but for the actions of the Master Servicer, would have been
covered thereunder. The Master Servicer shall not cancel or refuse to renew
any Primary Insurance Policy that is in effect at the date of the initial
issuance of the Certificates and is required to be kept in force hereunder or
the primary mortgage guaranty insurance acquired by the Trust Fund from MGIC
unless the replacement Primary Insurance Policy for the canceled or
non-renewed policy is maintained with a Qualified Insurer. The Master Servicer
need not maintain any Primary Insurance Policy if maintaining the Primary
Insurance Policy is prohibited by applicable law. The Master Servicer agrees,
to the extent permitted by applicable law, to effect the timely payment of the
premiums on each Primary Insurance Policy, and any costs not otherwise
recoverable shall be recoverable by the Master Servicer from the related
liquidation proceeds. The Master Servicer shall maintain for as long as each
relevant Mortgage Loan is outstanding the mortgage insurance associated with
the Mortgage Loans identified on the Mortgage Loan Schedule as having lender
acquired mortgage
III-13
insurance or primary mortgage guaranty insurance acquired by the Trust Fund
from MGIC, and as to any other Mortgage Loans the Master Servicer need not
maintain any Primary Insurance Policy with respect to any Mortgage Loan with a
Loan-to-Value Ratio or Combined Loan-to-Value Ratio (as applicable) less than
or equal to 80% as of any date of determination or, based on a new appraisal,
the principal balance of the Mortgage Loan represents 80% or less of the new
Appraised Value.
In connection with its activities as Master Servicer of the Mortgage
Loans, the Master Servicer agrees to present, on behalf of itself, the Trustee
and the Certificateholders, claims to the insurer under any Primary Insurance
Policies and under the primary mortgage guaranty insurance acquired by the
Trust Fund from MGIC and, in this regard, to take any reasonable action in
accordance with the Servicing Standard necessary to permit recovery under any
Primary Insurance Policies and under the primary mortgage guaranty insurance
acquired by the Trust Fund from MGIC respecting defaulted Mortgage Loans. Any
amounts collected by the Master Servicer under any Primary Insurance Policies
and under the primary mortgage guaranty insurance acquired by the Trust Fund
from MGIC shall be deposited in the Certificate Account or the Collection
Account (as applicable).
Section 3.11. Enforcement of Due-On-Sale Clauses;
Assumption Agreements.
(a) Except as otherwise provided in this Section 3.11, when any property
subject to a Mortgage has been conveyed by the Mortgagor, the Master Servicer
shall to the extent that it has knowledge of the conveyance and in accordance
with the Servicing Standard, enforce any due-on-sale clause contained in any
Mortgage Note or Mortgage, to the extent permitted under applicable law and
governmental regulations, but only to the extent that enforcement will not
adversely affect or jeopardize coverage under any Required Insurance Policy.
Notwithstanding the foregoing, the Master Servicer is not required to exercise
these rights with respect to a Mortgage Loan if the Person to whom the related
Mortgaged Property has been conveyed or is proposed to be conveyed satisfies
the conditions contained in the Mortgage Note and Mortgage related thereto and
the consent of the mortgagee under the Mortgage Note or Mortgage is not
otherwise so required under the Mortgage Note or Mortgage as a condition to
the transfer.
If (i) the Master Servicer is prohibited by law from enforcing any
due-on-sale clause, (ii) coverage under any Required Insurance Policy would be
adversely affected, (iii) the Mortgage Note does not include a due-on-sale
clause, or (iv) nonenforcement is otherwise permitted hereunder, the Master
Servicer is authorized, subject to Section 3.11(b), to take or enter into an
assumption and modification agreement from or with the person to whom the
property has been or is about to be conveyed, pursuant to which the person
becomes liable under the Mortgage Note and, unless prohibited by applicable
state law, the Mortgagor remains liable thereon. The Mortgage Loan must
continue to be covered (if so covered before the Master Servicer enters into
the agreement) by the applicable Required Insurance Policies.
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The Master Servicer, subject to Section 3.11(b), is also authorized with
the prior approval of the insurers under any Required Insurance Policies to
enter into a substitution of liability agreement with the Person, pursuant to
which the original Mortgagor is released from liability and the Person is
substituted as Mortgagor and becomes liable under the Mortgage Note.
Notwithstanding the foregoing, the Master Servicer shall not be deemed to be
in default under this Section 3.11 because of any transfer or assumption that
the Master Servicer reasonably believes it is restricted by law from
preventing, for any reason whatsoever.
(b) Subject to the Master Servicer's duty to enforce any due-on-sale
clause to the extent set forth in Section 3.11(a), in any case in which a
Mortgaged Property has been conveyed to a Person by a Mortgagor, and the
Person is to enter into an assumption agreement or modification agreement or
supplement to the Mortgage Note or Mortgage that requires the signature of the
Trustee, or if an instrument of release signed by the Trustee is required
releasing the Mortgagor from liability on the Mortgage Loan, the Master
Servicer shall prepare and deliver to the Trustee for signature and shall
direct the Trustee, in writing, to execute the assumption agreement with the
Person to whom the Mortgaged Property is to be conveyed, and the modification
agreement or supplement to the Mortgage Note or Mortgage or other instruments
appropriate to carry out the terms of the Mortgage Note or Mortgage or
otherwise to comply with any applicable laws regarding assumptions or the
transfer of the Mortgaged Property to the Person. In connection with any such
assumption, no material term of the Mortgage Note may be changed.
In addition, the substitute Mortgagor and the Mortgaged Property must be
acceptable to the Master Servicer in accordance with its underwriting
standards as then in effect. Together with each substitution, assumption, or
other agreement or instrument delivered to the Trustee for execution by it,
the Master Servicer shall deliver an Officer's Certificate signed by a
Servicing Officer stating that the requirements of this subsection have been
met in connection therewith. The Master Servicer shall notify the Trustee that
any substitution or assumption agreement has been completed by forwarding to
the Trustee the original of the substitution or assumption agreement, which in
the case of the original shall be added to the related Mortgage File and
shall, for all purposes, be considered a part of the Mortgage File to the same
extent as all other documents and instruments constituting a part thereof. The
Master Servicer will retain any fee collected by it for entering into an
assumption or substitution of liability agreement as additional master
servicing compensation.
Section 3.12. Realization Upon Defaulted Mortgage
Loans; Repurchase of Certain Mortgage Loans.
(a) The Master Servicer shall use reasonable efforts in accordance with
the Servicing Standard to foreclose on or otherwise comparably convert the
ownership of Mortgaged Properties in respect of which the related Mortgage
Loans as come into and continues in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments. In connection
with the foreclosure or other conversion, the Master Servicer shall
III-15
follow the Servicing Standard and shall follow the requirements of the insurer
under any Required Insurance Policy.
Notwithstanding the foregoing, the Master Servicer shall not be required
to expend its own funds in connection with any foreclosure or towards the
restoration of any property unless it determines (i) that the restoration or
foreclosure will increase the proceeds of liquidation of the Mortgage Loan
after reimbursement to itself of restoration expenses and (ii) that
restoration expenses will be recoverable to it through Liquidation Proceeds
(respecting which it shall have priority for purposes of withdrawals from the
Certificate Account). The Master Servicer shall be responsible for all other
costs and expenses incurred by it in any foreclosure proceedings. The Master
Servicer is entitled to reimbursement thereof from the liquidation proceeds
with respect to the related Mortgaged Property, as provided in the definition
of Liquidation Proceeds. If the Master Servicer has knowledge that a Mortgaged
Property that the Master Servicer is contemplating acquiring in foreclosure or
by deed in lieu of foreclosure is located within a 1 mile radius of any site
listed in the Expenditure Plan for the Hazardous Substance Clean Up Bond Act
of 1984 or other site with environmental or hazardous waste risks known to the
Master Servicer, the Master Servicer will, before acquiring the Mortgaged
Property, consider the risks and only take action in accordance with its
established environmental review procedures.
With respect to any REO Property, the deed or certificate of sale shall
be taken in the name of the Trustee for the benefit of the Certificateholders,
or its nominee, on behalf of the Certificateholders. The Trustee's name shall
be placed on the title to the REO Property solely as the Trustee hereunder and
not in its individual capacity. The Master Servicer shall ensure that the
title to the REO Property references the Pooling and Servicing Agreement and
the Trustee's capacity hereunder. Pursuant to its efforts to sell the REO
Property, the Master Servicer shall either itself or through an agent selected
by the Master Servicer protect and conserve the REO Property in accordance
with the Servicing Standard and may, incident to its conservation and
protection of the interests of the Certificateholders, rent the same, or any
part thereof, as the Master Servicer deems to be in the best interest of the
Certificateholders for the period before the sale of the REO Property.
The Master Servicer shall prepare for and deliver to the Trustee a
statement with respect to each REO Property that has been rented showing the
aggregate rental income received and all expenses incurred in connection with
the management and maintenance of the REO Property at any times necessary to
enable the Trustee to comply with the reporting requirements of the REMIC
Provisions. The net monthly rental income from the REO Property shall be
deposited in the Certificate Account no later than the close of business on
each Determination Date. The Master Servicer shall perform the tax reporting
and withholding required by Sections 1445 and 6050J of the Code with respect
to foreclosures and abandonments, the tax reporting required by Section 6050H
of the Code with respect to the receipt of mortgage interest from individuals
and, if required by Section 6050P of the Code with respect to the cancellation
of indebtedness by
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certain financial entities, by preparing any required tax and information
returns, in the form required, and delivering the same to the Trustee for
filing.
If the Trust Fund acquires any Mortgaged Property as aforesaid or
otherwise in connection with a default or imminent default on a Mortgage Loan,
the Master Servicer shall dispose of the Mortgaged Property before the end of
the third calendar year following the calendar year in which the Trust Fund
acquires the property unless the Trustee has been supplied with an Opinion of
Counsel to the effect that the holding by the Trust Fund of the Mortgaged
Property after the three-year period will not result in the imposition of
taxes on "prohibited transactions" on any REMIC as defined in section 860F of
the Code or cause any REMIC to fail to qualify as a REMIC at any time that any
Certificates are outstanding, in which case the Trust Fund may continue to
hold the Mortgaged Property (subject to any conditions contained in such
Opinion of Counsel). Notwithstanding any other provision of this Agreement, no
Mortgaged Property acquired by the Trust Fund shall be rented (or allowed to
continue to be rented) or otherwise used for the production of income by or on
behalf of the Trust Fund in such a manner or pursuant to any terms that would
(i) cause the Mortgaged Property to fail to qualify as "foreclosure property"
within the meaning of Section 860G(a)(8) of the Code or (ii) subject any REMIC
to the imposition of any federal, state, or local income taxes on the income
earned from the Mortgaged Property under Section 860G(c) of the Code or
otherwise, unless the Master Servicer has agreed to indemnify and hold
harmless the Trust Fund with respect to the imposition of any such taxes.
The decision of the Master Servicer to foreclose on a defaulted Mortgage
Loan shall be subject to a determination by the Master Servicer that the
proceeds of the foreclosure would exceed the costs and expenses of bringing a
foreclosure proceeding and would comply with the requirements of the primary
mortgage guaranty insurance acquired by the Trust Fund from MGIC. The income
earned from the management of any REO Properties, net of reimbursement to the
Master Servicer for expenses incurred (including any property or other taxes)
in connection with management 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 income 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 income received during any calendar month exceeds the
amount attributable to amortizing principal and accrued interest at the
related Mortgage Rate on the related Mortgage Loan for the calendar month, the
excess shall be considered to be a partial prepayment of principal of the
related Mortgage Loan.
The proceeds from any liquidation of a Mortgage Loan, as well as any
income from an REO Property, will be applied in the following order of
priority: first, to reimburse the Master Servicer for any related unreimbursed
Servicing Advances or Master Servicing Fees, as
III-17
applicable; second, to reimburse the Master Servicer, as applicable, and to
reimburse the Certificate Account for any Nonrecoverable Advances (or portions
thereof) that were previously withdrawn by the Master Servicer pursuant to
Section 3.09(a)(ii) that related to the Mortgage Loan; third, to accrued and
unpaid interest (to the extent no Advance has been made for such amount or any
such Advance has been reimbursed) on the Mortgage Loan or related REO
Property, at the Adjusted Net Mortgage Rate through the Remittance Period
preceding the Distribution Date on which such amounts are required to be
distributed; and fourth, as a recovery of principal of the Mortgage Loan. The
Master Servicer will retain any Excess Proceeds from the liquidation of a
Liquidated Mortgage Loan as additional servicing compensation pursuant to
Section 3.15.
(b) The Master Servicer, in its sole discretion, shall have the right to
purchase for its own account from the Trust Fund any Mortgage Loan which is 91
days or more delinquent at a price equal to the Purchase Price. The Purchase
Price for any Mortgage Loan purchased hereunder shall be deposited in the
Certificate Account and the Trustee, upon receipt of a certificate from the
Master Servicer in the form of Exhibit N , shall release to the purchaser of
the Mortgage Loan the related Mortgage File and shall execute and deliver such
instruments of transfer or assignment prepared by the purchaser of the
Mortgage Loan, in each case without recourse, as shall be necessary to vest in
the purchaser of the Mortgage Loan any Mortgage Loan released pursuant hereto
and the purchaser of the Mortgage Loan shall succeed to all the Trustee's
interest in the Mortgage Loan and all security and documents related thereto.
Such assignment shall be an assignment outright and not for security. The
purchaser of the Mortgage Loan shall thereupon own the Mortgage Loan, and all
security and documents, free of any further obligation to the Trustee or the
Certificateholders with respect thereto.
(c) The Master Servicer may agree to a modification of any Mortgage Loan
(the "Relevant Mortgage Loan") at the request of the related Mortgagor if the
modification is in lieu of a refinancing and the Mortgage Rate on the Relevant
Mortgage Loan, as modified, is approximately a prevailing market rate for
newly-originated mortgage loans having similar terms and (ii) the Master
Servicer purchases the Relevant Mortgage Loan from the Trust Fund as described
below. Effective immediately after the modification, and, in any event, on the
same Business Day on which the modification occurs, all interest of the
Trustee in the Modified Mortgage Loan shall automatically be deemed
transferred and assigned to the Master Servicer and all benefits and burdens
of ownership thereof, including the right to accrued interest thereon from the
date of modification and the risk of default thereon, shall pass to the Master
Servicer. The Master Servicer shall promptly deliver to the Trustee a
certification of a Servicing Officer to the effect that all requirements of
the first paragraph of this subsection (c) have been satisfied with respect to
the Modified Mortgage Loan.
The Master Servicer shall deposit the Purchase Price for any Modified
Mortgage Loan in the Certificate Account pursuant to Section 3.06 within one
Business Day after the purchase of the Modified Mortgage Loan. Upon receipt by
the Trustee of written notification of any such
III-18
deposit signed by a Servicing Officer, the Trustee shall release to the Master
Servicer the related Mortgage File and shall execute and deliver such
instruments of transfer or assignment, in each case without recourse, as shall
be necessary to vest in the Master Servicer any Modified Mortgage Loan
previously transferred and assigned pursuant hereto.
The Master Servicer covenants and agrees to indemnify the Trust Fund
against any liability for any "prohibited transaction" taxes and any related
interest, additions, and penalties imposed on the Trust Fund established
hereunder as a result of any modification of a Mortgage Loan effected pursuant
to this subsection (c), any holding of a Modified Mortgage Loan by the Trust
Fund or any purchase of a Modified Mortgage Loan by the Master Servicer (but
such obligation shall not prevent the Master Servicer or any other appropriate
Person from contesting any such tax in appropriate proceedings and shall not
prevent the Master Servicer from withholding payment of such tax, if permitted
by law, pending the outcome of such proceedings). The Master Servicer shall
have no right of reimbursement for any amount paid pursuant to the foregoing
indemnification, except to the extent that the amount of any tax, interest,
and penalties, together with interest thereon, is refunded to the Trust Fund
or the Master Servicer.
Section 3.13. Trustee to Cooperate; Release of
Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the
Master Servicer of a notification that payment in full will be escrowed in a
manner customary for such purposes, the Master Servicer will immediately
notify the Trustee by delivering a "Request for Release" substantially in the
form of Exhibit N. Upon receipt of the request, the Trustee shall promptly
release the related Mortgage File to the Master Servicer, and the Trustee
shall at the Master Servicer's direction execute and deliver to the Master
Servicer the request for reconveyance, deed of reconveyance, or release or
satisfaction of mortgage or such instrument releasing the lien of the Mortgage
in each case provided by the Master Servicer, together with the Mortgage Note
with written evidence of cancellation thereon. Expenses incurred in connection
with any instrument of satisfaction or deed of reconveyance shall be
chargeable to the related Mortgagor.
From time to time and as shall be appropriate for the servicing or
foreclosure of any Mortgage Loan, including for such purpose collection under
any policy of flood insurance, any fidelity bond or errors or omissions
policy, or for the purposes of effecting a partial release of any Mortgaged
Property from the lien of the Mortgage or the making of any corrections to the
Mortgage Note or the Mortgage or any of the other documents included in the
Mortgage File, the Trustee shall, upon delivery to the Trustee of a Request
for Release in the form of Exhibit M signed by a Servicing Officer, release
the Mortgage File to the Master Servicer or its designee. Subject to the
further limitations set forth below, the Master Servicer shall cause the
Mortgage File or documents so released to be returned to the Trustee when the
need therefor by the Master Servicer no longer exists, unless the Mortgage
Loan is liquidated and the proceeds thereof are deposited in the Certificate
Account, in which case the Master Servicer shall deliver to the Trustee a
Request for Release in the form of Exhibit N, signed by a Servicing Officer.
III-19
If the Master Servicer at any time seeks to initiate a foreclosure
proceeding in respect of any Mortgaged Property as authorized by this
Agreement, the Master Servicer shall deliver to the Trustee, for signature, as
appropriate, any court pleadings, requests for trustee's sale, or other
documents necessary to effectuate such foreclosure or any legal action brought
to obtain judgment against the Mortgagor on the Mortgage Note or the Mortgage
or to obtain a deficiency judgment or to enforce any other remedies or rights
provided by the Mortgage Note or the Mortgage or otherwise available at law or
in equity.
Section 3.14. Documents, Records and Funds in Possession of the
Master Servicer to be Held for the Trustee.
The Master Servicer shall account fully to the Trustee for any funds it
receives or otherwise collects as Liquidation Proceeds or Insurance Proceeds
in respect of any Mortgage Loan. All Mortgage Files and funds collected or
held by, or under the control of, the Master Servicer in respect of any
Mortgage Loans, whether from the collection of principal and interest payments
or from Liquidation Proceeds, including any funds on deposit in the
Certificate Account, shall be held by the Master Servicer for and on behalf of
the Trustee and shall be and remain the sole and exclusive property of the
Trustee, subject to the applicable provisions of this Agreement. The Master
Servicer also agrees that it shall not create, incur or subject any Mortgage
File or any funds that are deposited in the Certificate Account, the
Collection Account, Distribution Account, or any Escrow Account, or any funds
that otherwise are or may become due or payable to the Trustee for the benefit
of the Certificateholders, to any claim, lien, security interest, judgment,
levy, writ of attachment, or other encumbrance, or assert by legal action or
otherwise any claim or right of setoff against any Mortgage File or any funds
collected on, or in connection with, a Mortgage Loan, except, however, that
the Master Servicer shall be entitled to set off against and deduct from any
such funds any amounts that are properly due and payable to the Master
Servicer under this Agreement.
Section 3.15. Servicing Compensation.
As compensation for its activities hereunder, the Master Servicer may
retain or withdraw from the Servicing Account, the Collection Account, or the
Certificate Account the Master Servicing Fee for each Mortgage Loan for the
related Distribution Date. Notwithstanding the foregoing, the aggregate Master
Servicing Fee and Servicing Fee payable to the Master Servicer shall be
reduced by the lesser of the aggregate of the Prepayment Interest Shortfalls
with respect to the Distribution Date and the aggregate Compensating Interest
for the Distribution Date.
The Master Servicer may retain or withdraw from the Servicing Account,
the Collection Account, or the Certificate Account the Servicing Fee for each
Mortgage Loan for the related Distribution Date. If the Master Servicer
directly services a Mortgage Loan, the Master Servicer may retain the
Servicing Fee for its own account as compensation for performing services. If
a Subservicer directly services a Mortgage Loan, unless the Subservicer
retains the Servicing Fee,
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the Master Servicer shall remit the Servicing Fee to the related Subservicer
as compensation for performing services.
Additional master servicing compensation in the form of Excess Proceeds,
assumption fees, late payment charges and all income and gain net of any
losses realized from Permitted Investments shall be retained by the Master
Servicer to the extent not required to be deposited in the Certificate Account
pursuant to Section 3.06. The Master Servicer shall be required to pay all
expenses incurred by it in connection with its servicing activities hereunder
(including the fees of any Subservicer, payment of any premiums for hazard
insurance, and any Primary Insurance Policy and maintenance of the other forms
of insurance coverage required by this Agreement) and shall not be entitled to
reimbursement therefor except as specifically provided in this Agreement.
Section 3.16. Access to Certain Documentation.
The Master Servicer shall provide to the OTS and the FDIC and
to comparable regulatory authorities supervising Holders of Subordinated
Certificates and the examiners and supervisory agents of the OTS, the FDIC,
and such other authorities, access to the documentation regarding the Mortgage
Loans required by applicable regulations of the OTS and the FDIC. Access shall
be afforded without charge, but only upon reasonable prior written request and
during normal business hours at the offices designated by the Master Servicer.
Nothing in this Section 3.16 shall limit the obligation of the Master Servicer
to observe any applicable law prohibiting disclosure of information regarding
the Mortgagors and the failure of the Master Servicer to provide access as
provided in this Section 3.16 as a result of such obligation shall not
constitute a breach of this Section 3.16.
Section 3.17. Annual Statement as to Compliance.
The Master Servicer shall deliver to the Depositor and the
Trustee by 120 days after the end of each year, commencing with 2001, an
Officer's Certificate stating, as to the signer thereof, that (i) a review of
the activities of the Master Servicer during the preceding calendar year and
of the performance of the Master Servicer under this Agreement has been made
under the officer's supervision, and (ii) to the best of the officer's
knowledge, based on the review, the Master Servicer has fulfilled all its
obligations under this Agreement throughout the year, or, if there has been a
default in the fulfillment of any obligation, specifying each default known to
the officer and the nature and status thereof. The Trustee shall forward a
copy of each compliance statement to each Rating Agency.
Section 3.18. Annual Independent Public Accountants'
Servicing Statement; Financial Statements.
By 120 days after the end of each year, commencing with 2001, the Master
Servicer at its expense shall cause a nationally or regionally recognized firm
of independent public accountants (who may also render other services to the
Master Servicer, the Seller or any
III-21
affiliate thereof) which is a member of the American Institute of Certified
Public Accountants to furnish a statement to the Trustee and the Depositor to
the effect that the firm has examined certain documents and records relating
to the servicing of the Mortgage Loans under this Agreement or of mortgage
loans under pooling and servicing agreements substantially similar to this
Agreement (the statement to have attached to it a schedule of the pooling and
servicing agreements covered by it) and that, on the basis of its examination,
conducted substantially in compliance with the Audit Guide for Audits of HUD
Approved Nonsupervised Mortgagees, the Uniform Single Attestation Program for
Mortgage Bankers, or the Audit Program for Mortgages serviced for FNMA and
FHLMC, such servicing has been conducted in compliance with the pooling and
servicing agreements except for any significant exceptions or errors in
records that, in the opinion of the firm, the Audit Guide for Audits of HUD
Approved Nonsupervised Mortgagees, the Uniform Single Attestation Program for
Mortgage Bankers, or the Audit Program for Mortgages serviced for FNMA and
FHLMC requires it to report. In rendering the statement, the firm may rely, as
to matters relating to direct servicing of mortgage loans by the subservicers,
upon comparable statements for examinations conducted substantially in
compliance with the Audit Guide for Audits of HUD Approved Nonsupervised
Mortgagees, the Uniform Single Attestation Program for Mortgage Bankers, or
the Audit Program for Mortgages serviced for FNMA and FHLMC (rendered within
one year of the statement) of independent public accountants with respect to
the related Subservicer. The Master Servicer delivers the statement to the
Trustee so that the Trustee can provide copies of the statement to any
Certificateholder on request at the Master Servicer's expense.
Section 3.19. Errors and Omissions Insurance;
Fidelity Bonds.
The Master Servicer shall obtain and maintain in force (a) policies of
insurance covering errors and omissions in the performance of its obligations
as Master Servicer hereunder and (b) a fidelity bond covering its officers,
employees, and agents. Each policy and bond shall, together, comply with the
requirements from time to time of FNMA or FHLMC for persons performing
servicing for mortgage loans purchased by FNMA or FHLMC. If any policy or bond
ceases to be in effect, the Master Servicer shall obtain a comparable
replacement policy or bond from an insurer or issuer meeting the above
requirements as of the date of the replacement.
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ARTICLE FOUR
DISTRIBUTIONS AND ADVANCES BY THE MASTER SERVICER
Section 4.01. Advances.
The Master Servicer shall determine by each Master Servicer Advance Date
whether it is required to make an Advance pursuant to the definition of
Advance. If the Master Servicer determines it is required to make an Advance,
it shall, by the Master Servicer Advance Date, either (i) deposit into the
Certificate Account the Advance or (ii) make an appropriate entry in its
records relating to the Certificate Account that any Amount Held for Future
Distribution has been used by the Master Servicer in discharge of its
obligation to make the Advance. The Master Servicer shall replace any funds so
applied by making a deposit in the Certificate Account no later than the close
of business on the next Master Servicer Advance Date. The Master Servicer
shall be reimbursed from the Certificate Account for all Advances of its own
funds made pursuant to this Section 4.01 as provided in Section 3.09. The
obligation to make Advances with respect to any Mortgage Loan shall continue
if the Mortgage Loan has been foreclosed or otherwise terminated and the
related Mortgaged Property has not been liquidated. The Master Servicer shall
inform the Trustee of the amount of the Advance to be made on each Master
Servicer Advance Date no later than the second Business Day before the related
Distribution Date.
The Master Servicer shall deliver to the Trustee on the related Master
Servicer Advance Date an Officer's Certificate of a Servicing Officer
indicating the amount of any proposed Advance determined by the Master
Servicer to be a Nonrecoverable Advance.
Section 4.02. Priorities of Distribution.
(I) On each Distribution Date, the Trustee will make the
disbursements and transfers from amounts then on deposit in the Distribution
Account in the following order of priority for each Certificate Group and, in
each case, to the extent of the remaining related Available Funds or, if
applicable, the Pledged Prepayment Penalty Amount:
(i) to the holders of each Class of Certificates in the
following order of priority:
(a) to the Class A Certificates for the related Certificate Group,
the related Accrued Certificate Interest Distribution Amount and any
Unpaid Interest Amounts for the Distribution Date;
(b) to the Class M-1 Certificates of the Certificate Group, the
Accrued Certificate Interest Distribution Amount for the Class on the
Distribution Date;
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(c) to the Class M-2 Certificates of the Certificate Group, the
Accrued Certificate Interest Distribution Amount for the Class on the
Distribution Date;
(d) to the Class B Certificates of the Certificate Group, the
Accrued Certificate Interest Distribution Amount for the Class on the
Distribution Date;
(ii) A. with respect to each Certificate Group on each
Distribution Date (a) before the related Stepdown Date or (b) with
respect to which a Trigger Event is in effect, to the holders of the
related Classes of Offered Certificates then entitled to distributions
of principal as set forth below, the related Principal Distribution
Amount in the following order of priority:
(x) (1) in the case of the Group 1 Certificates,
o to the Class AF-6 Certificates an amount equal to the
AF-6 Share times the Lockout Percentage and then
o sequentially to the Class R, Class AF-1, Class AF-2,
Class AF-3, Class AF-4, Class AF-5, and Class AF-6
Certificates, until their respective Class Certificate
Balances are reduced to zero;
(2) in the case of the Group 2 Certificates, to the Class AV
Certificates until their Class Certificate Balance is reduced
to zero;
(y) for each Certificate Group, sequentially to the related Class
M-1, Class M-2, and Class B Certificates until their respective Class
Certificate Balances are reduced to zero;
B. on each Distribution Date (a) on and after the related Stepdown Date
and (b) as long as a Trigger Event is not in effect, to the holders of the
related Classes of Offered Certificates then entitled to distributions of
principal an amount equal to, in the aggregate, the related Principal
Distribution Amount in the following amounts and order of priority:
(a) the lesser of (x) the Principal Distribution Amount and (y)
the Class A Principal Distribution Amount, in the following order of
priority:
(1) in the case of the Group 1 Certificates,
o to the Class AF-6 Certificates an amount equal to the
AF-6 Share times the Lockout Percentage and then
o sequentially to the Class R, Class AF-1, Class AF-2,
Class AF-3, Class AF-4, Class AF-5, and Class AF-6
Certificates, until their respective Class Certificate
Balances are reduced to zero;
(2) in the case of the Group 2 Certificates, to the Class AV
Certificates until their Class Certificate Balance is reduced to
zero;
(b) the lesser of (x) the excess of (i) the Principal Distribution
Amount over (ii) the amount distributed to the Class A
Certificateholders in clause (ii) B. (a) above
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and (y) the Class M-1 Principal Distribution Amount to the related Class
M-1 Certificateholders, until their Class Certificate Balance has been
reduced to zero;
(c) the lesser of (x) the excess of (i) the Principal Distribution
Amount over (ii) the amount distributed to the Class A
Certificateholders in clause (ii) B. (a) above and to the Class M-1
Certificates in clause (ii) B. (b) above and (y) the Class M-2 Principal
Distribution Amount to the related Class M-2 Certificateholders, until
their Class Certificate Balance has been reduced to zero;
(d) the lesser of (x) the excess of (i) the Principal Distribution
Amount over (ii) the amount distributed to the Class A
Certificateholders in clause (ii) B. (a) above, to the Class M-1
Certificates in clause (ii) B. (b) above and to the Class M-2
Certificates in clause (ii) B. (c) above and (y) the Class B Principal
Distribution Amount to the related Class B Certificateholders, until
their Class Certificate Balance has been reduced to zero;
(iii) any amount of Available Funds remaining after the distributions in
clauses (i) and (ii) above and, in the case of (a) and (j) below, from the
Pledged Prepayment Penalty Amount shall be distributed in the following order
of priority with respect to the Certificates in the related Certificate Group:
(a) to the Excess Reserve Fund Account, the amount of any IO Cap
CarryForward for the Distribution Date;
(b) to the holders of any affected Certificates in the related
Certificate Group from funds in the Excess Reserve Fund Account, any IO
Cap CarryForward for the Distribution Date in the same order and
priority in which Accrued Certificate Interest is allocated;
(c) to fund the Extra Principal Distribution Amount for the
Distribution Date to be paid as a component of the Principal
Distribution Amount in the same order of priority as described in clause
(ii) above;
(d) to the holders of the Class M-1 Certificates, any Unpaid
Interest Amounts for the Class;
(e) to the holders of the Class M-1 Certificates, any Unpaid
Realized Loss Amount for the Class;
(f) to the holders of the Class M-2 Certificates, any Unpaid
Interest Amounts for the Class;
(g) to the holders of the Class M-2 Certificates, any Unpaid
Realized Loss Amount for the Class;
(h) to the holders of the Class B Certificates, any Unpaid
Interest Amounts for the Class;
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(i) to the holders of the Class B Certificates, any Unpaid
Realized Loss Amount for the Class;
(j) to the Excess Reserve Fund Account, the amount of any Basis
Risk Payment for the Distribution Date;
(k) to the holders of any affected Certificates in the related
Certificate Group from funds in the Excess Reserve Fund Account, any
Basis Risk CarryForward Amount for the Distribution Date in the same
order and priority in which Accrued Certificate Interest is allocated;
(l) to the holders of the Class X Certificate, the Class X
Distributable Amount; and
(m) to the holders of the Class R Certificates, any remaining
amount.
(II) On each Distribution Date, an amount equal to the excess of all
amounts representing Prepayment Charges from the Mortgage Loans in each Loan
Group received during the related Prepayment Period over the amount needed to
fund the Pledged Prepayment Penalty Amount will be distributed to the holders
of the Class P Certificates.
Section 4.03. Monthly Statements to Certificateholders.
(a) Not later than each Distribution Date, the Trustee shall prepare and
make available to each Certificateholder, the Master Servicer, the Depositor,
and each Rating Agency on its Internet website a statement for the related
distribution of:
(i) the amount of the distribution allocable to principal,
separately identifying the aggregate amount of any Principal Prepayments
and Liquidation Proceeds included therein;
(ii) the amount of the distribution allocable to interest, any
Unpaid Interest Amounts included in the distribution and any remaining
Unpaid Interest Amounts after giving effect to the distribution, any
Basis Risk CarryForward Amount for the Distribution Date, and the amount
of all Basis Risk Carry Forward Amount covered by withdrawals from the
Excess Reserve Fund Account on the Distribution Date;
(iii) if the distribution to the Holders of any Class of
Certificates is less than the full amount that would be distributable to
them if sufficient funds were available, the amount of the shortfall and
the allocation of the shortfall between principal and interest,
including any Basis Risk CarryForward Amount not covered by amounts in
the Excess Reserve Fund Account;
(iv) the Class Certificate Balance of each Class of Certificates
after giving effect to the distribution of principal on the Distribution
Date;
(v) the Pool Stated Principal Balance for the following
Distribution Date;
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(vi) the amount of the Master Servicing Fees and Servicing Fees
paid to or retained by the Master Servicer or Subservicer (with respect
to the Subservicers, in the aggregate) with respect to the Distribution
Date;
(vii) the Pass-Through Rate for each Class of Certificates with
respect to the Distribution Date;
(viii) the amount of Advances included in the distribution on the
Distribution Date and the aggregate amount of Advances outstanding as of
the close of business on the Distribution Date;
(ix) the number and aggregate principal amounts of Mortgage Loans
in each Loan Group
(A) delinquent (exclusive of Mortgage Loans in foreclosure)
(1) 1 to 30 days, (2) 31 to 60 days, (3) 61 to 90 days, and (4) 91
or more days and
(B) in foreclosure and delinquent (1) 1 to 30 days, (2) 31
to 60 days, (3) 61 to 90 days, and (4) 91 or more days,
as of the close of business on the last day of the calendar
month preceding the Distribution Date;
(x) for each of the preceding 12 calendar months, or all calendar
months since the related Cut-off Date, whichever is less, the aggregate
dollar amount of the Scheduled Payments (A) due on all Outstanding
Mortgage Loans on each of the Due Dates in each such month and (B)
delinquent 60 days or more on each of the Due Dates in each such month;
(xi) with respect to any Mortgage Loan that became an REO Property
during the preceding calendar month, the loan number and Stated
Principal Balance of the Mortgage Loan as of the close of business on
the Determination Date preceding the Distribution Date and the date of
acquisition thereof;
(xii) the total number and principal balance of any REO Properties
(and market value, if available) as of the close of business on the
Determination Date preceding the Distribution Date;
(xiii) whether a Trigger Event has occurred and is continuing
(including the calculation of thereof and the aggregate outstanding
balance of all 60+ Delinquent Loans)
(xiv) the amount on deposit in the Excess Reserve Fund Account
(after giving effect to distributions on the Distribution Date);
(xv) the aggregate amount of Realized Losses incurred during the
preceding calendar month and aggregate Realized Losses through the
Distribution Date;
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(xvi) the amount of any Net Monthly Excess Cash Flow on the
Distribution Date and the allocation thereof to the Certificateholders
with respect to Applied Realized Losses and Unpaid Interest Amounts;
(xvii) with respect to the second Distribution Date, the number
and aggregate balance of any Delay Delivery Mortgage Loans not delivered
within the time periods specified in the definition of Delay Delivery
Mortgage Loans; and
(xviii) with respect to each Loan Group, the Subordinated Amount
and Required Subordinated Amount.
(xix) Prepayment Charges collected, waived and paid by Master
Servicer.
If the statement is not accessible to any of the Certificateholders, the
Master Servicer, the Depositor, or any Rating Agency on the Trustee's internet
website, the Trustee shall forward a hard copy of it to each
Certificateholder, the Master Servicer, the Depositor, and each Rating Agency
immediately after the Trustee becomes aware that it is not accessible to any
of them via its website. The address of the Trustee's internet website where
the statement will be accessible is
xxxx://xxx-xxxx.xxx.xxxxxxxx-xxxx.xxx/xxxx. Assistance in using the Trustee's
internet website may be obtained by calling the Trustee's customer service
desk at (000) 000-0000. The Trustee shall notify each Certificateholder, the
Master Servicer, the Depositor, and each Rating Agency in writing of any
change in the address or means of access to the internet website where the
statement is accessible.
(b) The Trustee's responsibility for disbursing the above information to
the Certificateholders is limited to the availability, timeliness, and
accuracy of the information derived from the Master Servicer. The Trustee is
not responsible for any inaccuracies in or caused by the data provided by the
Master Servicer.
By each Determination Date the Master Servicer shall provide to the
Trustee in electronic form the information needed to determine the
distributions to be made pursuant to Section 4.02 and 3.09(b)(ii) and any
other information that the Master Servicer and the Trustee mutually agree on.
(c) Within a reasonable period of time after the end of each calendar
year, the Trustee shall cause to be furnished to each Person who at any time
during the calendar year was a Certificateholder, a statement containing the
information set forth in clauses (a)(i), (a)(ii), and (a)(vii) of this Section
4.03 aggregated for such calendar year or applicable portion thereof during
which such Person was a Certificateholder. Such obligation of the Trustee
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Trustee pursuant to any
requirements of the Code as from time to time in effect.
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Section 4.04. [Reserved]
Section 4.05. [Reserved]
Section 4.06. [Reserved]
Section 4.07. Certain Matters Relating to the Determination
of LIBOR.
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 Interest Determination Date. The Master
Servicer initially shall designate the Reference Banks. Each "Reference Bank"
shall be a leading bank engaged in transactions in Eurodollar deposits in the
international Eurocurrency market, shall not control, be controlled by, or be
under common control with, the Trustee and shall have an established place of
business in London. If any such Reference Bank should be unwilling or unable
to act as such or if the Master Servicer should terminate its appointment as
Reference Bank, the Master Servicer shall promptly appoint 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.
The Pass-Through Rate for each Class of LIBOR Certificates for each
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. The Trustee shall not have any
liability or responsibility to any Person for its inability, following a
good-faith reasonable effort, to obtain quotations from the Reference Banks or
to determine the arithmetic mean referred to in the definition of LIBOR, all
as provided for in this Section 4.07 and the definition of LIBOR. The
establishment of LIBOR and each Pass-Through Rate for the LIBOR Certificates
by the Trustee shall (in the absence of manifest error) be final, conclusive
and binding upon each Holder of a Certificate and the Trustee.
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ARTICLE FIVE
THE CERTIFICATES
Section 5.01. The Certificates.
The Certificates shall be substantially in the forms attached hereto as
exhibits. The Certificates shall be issuable in registered form, in the
minimum denominations, integral multiples of $1,000 in excess thereof (except
that one Certificate in each Class may be issued in a different amount which
must exceed the applicable minimum denomination) and aggregate denominations
per Class set forth in the Preliminary Statement.
Subject to Section 9.02 respecting the final distribution on the
Certificates, on each Distribution Date the Trustee shall make distributions
to each Certificateholder of record on the preceding Record Date either (x) by
wire transfer in immediately available funds to the account of such holder at
a bank or other entity having appropriate facilities therefor, if (i) such
Holder has so notified the Trustee at least five Business Days before the
related Record Date and (ii) such Holder shall hold (A) 100% of the Class
Certificate Balance of any Class of Certificates or (B) Certificates of any
Class with aggregate principal Denominations of not less than $1,000,000 or
(y) by check mailed by first class mail to such Certificateholder at the
address of such holder appearing in the Certificate Register.
The Trustee shall execute the Certificates by 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 to the Trustee on a continuous basis, 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
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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.
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 said Act and any applicable state securities
laws. If a transfer is to be made in reliance on an exemption from the
Securities Act and any applicable state securities laws, to assure compliance
with the Securities Act and any applicable state securities laws, the
Certificateholder desiring to effect the transfer shall certify to the Trustee
in writing the facts surrounding the transfer in substantially the form set
forth in Exhibit J (the "Transferor Certificate") and either (i) deliver to
the Trustee a letter in substantially the form of Exhibit L (the "Rule 144A
Letter") or (ii) deliver to the Trustee 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 the Holder of a
Private Certificate, information regarding the related Certificates and the
Mortgage Loans and any other information necessary to satisfy the condition to
eligibility in Rule 144A(d)(4) for transfer of the Certificate without
registration thereof under the Securities Act pursuant to the registration
exemption provided by Rule 144A. The Trustee and the Master Servicer shall
cooperate with the Depositor in providing the Rule 144A information referenced
in the preceding sentence, including providing to the Depositor such
information regarding the Certificates, the Mortgage
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Loans, and other matters regarding the Trust Fund 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 and the Depositor, the Seller, and the Master
Servicer against any liability that may result if the transfer is not so
exempt or is not made in accordance with such federal and state laws.
No transfer of an ERISA-Restricted Certificate shall be made unless the
Trustee shall have received either (i) a representation from the transferee of
such Certificate acceptable to and in form and substance satisfactory to the
Trustee (if the Certificate is a Private Certificate or a Residual
Certificate, the requirement is satisfied only by the Trustee's receipt of a
representation letter from the transferee substantially in the form of Exhibit
L), to the effect that the transferee is not an employee benefit plan or
arrangement subject to Section 406 of ERISA or a plan subject to Section 4975
of the Code, nor a person acting on behalf of any such plan or arrangement nor
using the assets of any such plan or arrangement to effect the transfer, or
(ii) if the ERISA-Restricted Certificate is a Private Certificate that has
been the subject of an ERISA-Qualifying Underwriting a Residual Certificate,
if the purchaser is an insurance company, a representation that the purchaser
is an insurance company that is purchasing such Certificates with funds
contained in an "insurance company general account" (as such term is defined
in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")
and that the purchase and holding of such Certificates are covered under
Sections I and III of PTCE 95-60, or (iii) in the case of any such
ERISA-Restricted Certificate presented for registration in the name of an
employee benefit plan subject to ERISA, or a plan or arrangement subject to
Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee of any such plan or any other person acting on
behalf of any such plan or arrangement or using such plan's or arrangement's
assets, an Opinion of Counsel satisfactory to the Trustee and the Master
Servicer, which Opinion of Counsel shall not be an expense of the Trustee, the
Master Servicer or the Trust Fund, addressed to the Trustee, to the effect
that the purchase or holding of such ERISA-Restricted Certificate will not
result in the assets of the Trust Fund being deemed to be "plan assets" and
subject to the prohibited transaction provisions of ERISA and the Code and
will not subject the Trustee or the Master Servicer to any obligation in
addition to those expressly undertaken in this Agreement or to any liability.
For purposes of the preceding sentence, with respect to an ERISA-Restricted
Certificate that is not a Private Certificate or a Residual Certificate, if
the representation letter referred to in the preceding sentence is not
furnished, the representation shall be deemed to have been made to the Trustee
by the transferee's (including an initial acquirer's) acceptance of the
ERISA-Restricted Certificates. If the representation is violated, or any
attempt 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, the attempted transfer or
acquisition shall be void.
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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
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Certificate and either the Rule 144A Letter or the Investment Letter. The
Trustee shall be entitled but not obligated to recover from any Holder of
a Residual Certificate that was in fact not a Permitted Transferee at the
time it became a Holder or, at such subsequent time as it became other
than a Permitted Transferee, all payments made on such Residual
Certificate at and after either such time. Any such payments so recovered
by the Trustee shall be paid and delivered by the Trustee to the last
preceding Permitted Transferee of such Certificate.
(v) The Depositor shall use its best efforts to make available,
upon receipt of written request from the Trustee, all information
necessary to compute any tax imposed under Section 860E(e) of the Code
as a result of a Transfer of an Ownership Interest in a Residual
Certificate to any Holder who is not a Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set forth in
this Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Trustee of an Opinion of Counsel, which
Opinion of Counsel shall not be an expense of the Trust Fund, the Trustee, the
Seller or the Master Servicer, to the effect that the elimination of such
restrictions will not cause the Trust Fund hereunder to fail to qualify as a
REMIC at any time that the Certificates are outstanding or result in the
imposition of any tax on the Trust Fund, a Certificateholder or another
Person. Each Person holding or acquiring any Ownership Interest in a Residual
Certificate hereby consents to any amendment of this Agreement which, based on
an Opinion of Counsel 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 participating
firms as representatives of the Certificate Owners of the Book-Entry
Certificates for purposes of exercising the rights of holders under this
Agreement, and requests and directions for and votes
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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 participating firms and
persons shown on the books of such indirect participating firms as direct or
indirect Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository
Participant or brokerage firm representing the Certificate Owner. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
If (x)
(i) the Depository or the Depositor advises the Trustee in writing
that the Depository is no longer willing or able to properly discharge
its responsibilities as Depository, and
(ii) the Trustee or the Depositor is unable to locate a qualified
successor,
(y) the Depositor at its option advises the Trustee in writing that it
elects to terminate the book-entry system through the Depository or
(z) after the occurrence of an Event of Default,
Certificate Owners representing at least 51% of the Certificate Balance of the
Book-Entry Certificates together advise the Trustee and the Depository through
the Depository Participants in writing that the continuation of a book-entry
system through the Depository is no longer in the best interests of the
Certificate Owners, the Trustee shall notify all Certificate Owners, through
the Depository, of the occurrence of any such event and of the availability of
definitive, fully-registered Certificates (the "Definitive Certificates") to
Certificate Owners requesting the same. Upon surrender to the Trustee of the
related Class of Certificates by the Depository, accompanied by the
instructions from the Depository for registration, the Trustee shall issue the
Definitive Certificates. Neither the Master Servicer, the Depositor nor the
Trustee shall be liable for any delay in delivery of such instruction and each
may conclusively rely on, and shall be protected in relying on, such
instructions. The Master Servicer shall provide the Trustee with an adequate
inventory of certificates to facilitate the issuance and transfer of
Definitive Certificates. Upon the issuance of Definitive Certificates all
references herein to obligations imposed upon or to be performed by the
Depository shall be deemed to be imposed upon and performed by the Trustee, to
the extent applicable with respect to such Definitive Certificates and the
Trustee shall recognize the Holders of the Definitive Certificates as
Certificateholders hereunder; provided that the Trustee shall not by virtue of
its assumption of such obligations become liable to any party for any act or
failure to act of the Depository.
V-6
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.
If
(a) any mutilated Certificate is surrendered to the Trustee, or
(b) the Trustee receives evidence to its satisfaction of the
destruction, loss, or theft of any Certificate and the Master Servicer and the
Trustee receive the security or indemnity required by them to hold each of
them harmless, then, in the absence of notice to the Trustee that the
Certificate has been acquired by a Protected Purchaser, and if the
requirements of Section 8-406 of the UCC are met and subject to Section 8-405
of the UCC, the Trustee shall execute, countersign, and deliver, in exchange
for or in lieu of any mutilated, destroyed, lost, or stolen Certificate, a new
Certificate of like Class, tenor, and Percentage Interest. In connection with
the issuance of any new Certificate under this Section 5.03, the Trustee may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewith. Any
replacement Certificate issued pursuant to this Section 5.03 shall constitute
complete and indefeasible evidence of ownership, as if originally issued,
whether or not the lost, stolen, or destroyed Certificate is found at any
time.
Section 5.04. Persons Deemed Owners.
The Master Servicer, the Trustee and any agent of the Master
Servicer or the Trustee may treat the Person in whose name any Certificate is
registered as the owner of such Certificate for the purpose of receiving
distributions as provided in this Agreement and for all other purposes
whatsoever, and neither the Master Servicer, the Trustee nor any agent of the
Master Servicer or the Trustee shall be affected by any notice to the
contrary.
Section 5.05. Access to List of Certificateholders' Names
and Addresses.
If three or more Certificateholders (a) request such information in
writing from the Trustee, (b) state that such Certificateholders desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates, and (c) provide a copy of the
communication which such Certificateholders propose to transmit, or if the
Depositor or Master Servicer shall request such information in writing from
the Trustee, then the Trustee shall, within ten Business Days after the
receipt of such request, provide the Depositor, the Master Servicer or such
Certificateholders at such recipients' expense the most recent list of the
Certificateholders of such Trust Fund held by the Trustee. The Depositor and
every Certificateholder, by receiving and holding a Certificate, agree that
the Trustee shall not be held accountable because of the disclosure of any
such information as to the list of the Certificateholders hereunder,
regardless of the source from which such information was derived.
V-7
Section 5.06. Maintenance of Office or Agency.
The Trustee will maintain at its expense an office or offices
or agency or agencies in New York City located at 000 Xxxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attn: IN01C1, 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.
V-8
ARTICLE SIX
THE DEPOSITOR AND THE MASTER SERVICER
Section 6.01. Respective Liabilities of the Depositor and
the Master Servicer.
The Depositor and the Master Servicer shall each be liable in accordance
herewith only to the extent of the obligations specifically and respectively
imposed upon and undertaken by them herein.
Section 6.02. Merger or Consolidation of the Depositor or the
Master Servicer.
The Depositor and the Master Servicer will each keep in full
effect its existence, rights and franchises as a corporation or federal
savings bank, as the case may be, under the laws of the United States or under
the laws of one of the states thereof and will each obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its respective duties under this Agreement.
Any Person into which the Depositor or the Master Servicer may be merged
or consolidated, or any Person resulting from any merger or consolidation to
which the Depositor or the Master Servicer shall be a party, or any person
succeeding to the business of the Depositor or the Master Servicer, shall be
the successor of the Depositor or the Master Servicer, as the case may be,
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, that the successor or surviving Person to
the Master Servicer shall be qualified to sell mortgage loans to, and to
service mortgage loans on behalf of, FNMA or FHLMC.
Section 6.03. Limitation on Liability of the
Depositor, the Seller, the Master Servicer
and Others.
None of the Depositor, the Seller, the Master Servicer or any of the
directors, officers, employees or agents of the Depositor, the Seller or the
Master Servicer shall be under any liability to the Certificateholders for any
action taken or for refraining from the taking of any action in good faith
pursuant to this Agreement, or for errors in judgment; provided, however, that
this provision shall not protect the Depositor, the Seller, the Master
Servicer or any such Person against any breach of representations or
warranties made by it herein or protect the Depositor, the Seller, the Master
Servicer or any such Person from any liability which would otherwise be
imposed by reasons of willful misfeasance, bad faith or gross negligence in
the performance of duties or because of reckless disregard of obligations and
duties hereunder. The Depositor, the Seller, the Master Servicer and any
director, officer, employee or agent of the
VI-1
Depositor, the Seller or the Master Servicer may rely in good faith on any
document of any kind prima facie properly executed and submitted by any Person
respecting any matters arising hereunder. The Depositor, the Seller, the
Master Servicer and any director, officer, employee or agent of the Depositor,
the Seller or the Master Servicer shall be indemnified by the Trust Fund and
held harmless against any loss, liability or expense incurred in connection
with any audit, controversy or judicial proceeding relating to a governmental
taxing authority or any legal action relating to this Agreement or the
Certificates, other than any loss, liability or expense related to any
specific Mortgage Loan or Mortgage Loans (except as any such loss, liability
or expense shall be otherwise reimbursable pursuant to this Agreement) and any
loss, liability or expense incurred because of willful misfeasance, bad faith
or gross negligence in the performance of duties hereunder or because of
reckless disregard of obligations and duties hereunder. None of the Depositor,
the Seller or the Master Servicer shall be under any obligation to appear in,
prosecute or defend any legal action that is not incidental to its respective
duties hereunder and which in its opinion may involve it in any expense or
liability; provided, however, that any of the Depositor, the Seller or the
Master Servicer may in its discretion undertake any such action that it may
deem appropriate in respect of this Agreement and the rights and duties of the
parties hereto and interests of the Trustee and the Certificateholders
hereunder. In such event, the legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Trust Fund, and the Depositor, the Seller and the Master Servicer shall be
entitled to be reimbursed therefor out of the Certificate Account.
Section 6.04. Limitation on Resignation of the
Master Servicer.
The Master Servicer shall not resign from the obligations and duties
hereby imposed on it except (a) upon appointment of a successor servicer and
receipt by the Trustee of a letter from each Rating Agency that such a
resignation and appointment will not result in a downgrading of the rating of
any of the Certificates or (b) upon determination that its duties hereunder
are no longer permissible under applicable law. Any such determination under
clause (b) permitting the resignation of the Master Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Trustee. No
such resignation shall become effective until the Trustee or a successor
master servicer shall have assumed the Master Servicer's responsibilities,
duties, liabilities and obligations hereunder.
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ARTICLE SEVEN
DEFAULT
Section 7.01. Events of Default.
"Event of Default," wherever used herein, means any one of the following
events:
(a) any failure by the Master Servicer to deposit in the Certificate
Account or remit to the Trustee any payment (other than a payment required to
be made under Section 4.01) required to be made by it under this Agreement,
which failure continues unremedied for five days after the date on which
written notice of the failure has been given to the Master Servicer by the
Trustee or the Depositor or to the Master Servicer and the Trustee by the
Holders of Certificates of any Class evidencing not less than 25% of the
aggregate Percentage Interests of the Class; or
(b) any failure by the Master Servicer to observe or perform in any
material respect any other of the covenants or agreements on the part of the
Master Servicer contained in this Agreement, which failure materially affects
the rights of Certificateholders and continues unremedied for a period of 60
days after the date on which written notice of such failure shall have been
given to the Master Servicer by the Trustee or the Depositor, or to the Master
Servicer and the Trustee by the Holders of Certificates of any Class
evidencing not less than 25% of the Percentage Interests of the Class;
provided that the sixty-day cure period shall not apply to the initial
delivery of the Mortgage File for Delay Delivery Mortgage Loans nor the
failure to repurchase or substitute in lieu thereof; or
(c) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises for the appointment of a receiver,
conservator or liquidator in any insolvency, readjustment of debt, marshalling
of assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Master
Servicer and such decree or order shall have remained in force undischarged or
unstayed for a period of 60 consecutive days; or
(d) the Master Servicer shall consent to the appointment of a receiver,
conservator or liquidator in any insolvency, readjustment of debt, marshalling
of assets and liabilities or similar proceedings of or relating to the Master
Servicer or all or substantially all of the property of the Master Servicer;
or
(e) the Master Servicer shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage of, or
commence a voluntary case under, any applicable insolvency or reorganization
statute, make an assignment for the benefit of its creditors, or voluntarily
suspend payment of its obligations.
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If an Event of Default described in clauses (a) through (e) of this
Section 7.01 shall occur, then, and in each and every such case, so long as
such Event of Default shall not have been remedied, the Trustee may, or at the
direction of the Holders of Certificates of any Class evidencing not less than
66 2/3% of the Percentage Interests of the Class, the Trustee shall by notice
in writing to the Master Servicer (with a copy to each Rating Agency),
terminate all of the rights and obligations of the Master Servicer under this
Agreement and in the Mortgage Loans and the proceeds thereof, other than its
rights as a Certificateholder hereunder. On and after the receipt by the
Master Servicer of such written notice, all authority and power of the Master
Servicer hereunder, whether with respect to the Mortgage Loans or otherwise,
shall pass to and be vested in the Trustee. The Trustee shall make any Advance
that the Master Servicer failed to make subject to Section 3.03, whether or
not the obligations of the Master Servicer have been terminated pursuant to
this Section. The Trustee is hereby authorized and empowered to execute and
deliver, on behalf of the Master Servicer, as attorney-in-fact or otherwise,
any documents and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents, or otherwise. Unless expressly
provided in such written notice, no such termination shall affect any
obligation of the Master Servicer to pay amounts owed pursuant to Article
VIII. The Master Servicer agrees to cooperate with the Trustee in effecting
the termination of the Master Servicer's responsibilities and rights
hereunder, including the transfer to the Trustee of all cash amounts which
shall at the time be credited to the Certificate Account, or thereafter be
received with respect to the Mortgage Loans.
Notwithstanding any termination of the activities of the Master Servicer
hereunder, the Master Servicer shall be entitled to receive, out of any late
collection of a Scheduled Payment on a Mortgage Loan which was due before the
notice terminating such Master Servicer's rights and obligations as Master
Servicer hereunder and received after such notice, that portion thereof to
which such Master Servicer would have been entitled pursuant to Sections
3.11(a)(i) through (viii), and any other amounts payable to such Master
Servicer hereunder the entitlement to which arose before the termination of
its activities hereunder.
Section 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer receives a notice of
termination pursuant to Section 7.01, the Trustee shall, subject to and to the
extent provided in Section 3.05, be the successor to the Master Servicer in
its capacity as master servicer under this Agreement and the transactions set
forth or provided for herein and shall be subject to all the responsibilities,
duties and liabilities relating thereto placed on the Master Servicer by the
terms hereof and applicable law including the obligation to make Advances
pursuant to Section 4.01. As compensation therefor, the Trustee shall be
entitled to all funds relating to the Mortgage Loans that the Master Servicer
would have been entitled to charge to the Certificate Account or Distribution
Account if the Master Servicer had continued to act hereunder including, if
the Master Servicer was
VII-2
receiving the Servicing Fee, the Servicing Fee. Notwithstanding the foregoing,
if the Trustee has become the successor to the Master Servicer in accordance
with Section 7.01, the Trustee may, if it shall be unwilling to so act, or
shall, if it is prohibited by applicable law from making Advances pursuant to
Section 4.01 or if it is otherwise unable to so act, appoint, or petition a
court of competent jurisdiction to appoint, any established mortgage loan
servicing institution the appointment of which does not adversely affect the
then current rating of the Certificates by each Rating Agency, as the
successor to the Master Servicer hereunder in the assumption of all or any
part of the responsibilities, duties or liabilities of the Master Servicer
hereunder. Any successor to the Master Servicer shall be an institution which
is a FNMA and FHLMC approved seller/servicer in good standing, which has a net
worth of at least $15,000,000, which is willing to service the Mortgage Loans
and which executes and delivers to the Depositor and the Trustee an agreement
accepting such delegation and assignment, containing an assumption by such
Person of the rights, powers, duties, responsibilities, obligations and
liabilities of the Master Servicer (other than liabilities of the Master
Servicer under Section 6.03 incurred before termination of the Master Servicer
under Section 7.01), with like effect as if originally named as a party to
this Agreement; provided that each Rating Agency acknowledges that its rating
of the Certificates in effect immediately before such assignment and
delegation will not be qualified or reduced, as a result of such assignment
and delegation. Pending appointment of a successor to the Master Servicer
hereunder, the Trustee, unless the Trustee is prohibited by law from so
acting, shall, subject to Section 3.05, act in such capacity as hereinabove
provided. In connection with such appointment and assumption, the Trustee may
make such arrangements for the compensation of such successor out of payments
on Mortgage Loans as it and such successor shall agree. No such compensation
shall exceed the Master Servicing Fee Rate plus, if the Master Servicer was
receiving the Servicing Fee, the Servicing Fee Rate. The Trustee and such
successor shall take such action, consistent with this Agreement, as shall be
necessary to effectuate any such succession. Neither the Trustee nor any other
successor master servicer shall be deemed to be in default hereunder because
of any failure to make, or any delay in making, any distribution hereunder or
any portion thereof or any failure to perform, or any delay in performing, any
duties or responsibilities hereunder, in either case caused by the failure of
the Master Servicer to deliver or provide, or any delay in delivering or
providing, any cash, information, documents or records to it.
Any successor to the Master Servicer as master servicer shall give
notice to the Mortgagors of such change of servicer and shall, during the term
of its service as master servicer, maintain in force the policy or policies
that the Master Servicer is required to maintain pursuant to Section 6.05.
Section 7.03. Notification to Certificateholders.
(a) Upon any termination of or appointment of a successor to
the Master Servicer, the Trustee shall give prompt written notice thereof to
Certificateholders and to each Rating Agency.
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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.
VII-4
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 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.
Unless an Event of Default known to the Trustee has occurred
and is continuing,
(a) the duties and obligations of the Trustee shall be determined solely
by the express provisions of this Agreement, the Trustee shall not be liable
except for the performance of the duties and obligations specifically set
forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee, and the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to the Trustee
and conforming to the requirements of this Agreement which it believed in good
faith to be genuine and to have been duly executed by the proper authorities
respecting any matters arising hereunder;
(b) the Trustee shall not be liable for an error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it is finally proven that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken,
suffered, or omitted to be taken by it in good faith in accordance with the
direction of Holders of Certificates evidencing not less than 25% of the
Voting Rights of Certificates relating to the time, method, and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee under this Agreement.
VIII-1
Section 8.02. Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(a) the Trustee may request and rely upon and shall be protected in
acting or refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties and the Trustee shall have no
responsibility to ascertain or confirm the genuineness of any signature of any
such party or parties;
(b) the Trustee may consult with counsel, financial advisers or
accountants and the advice of any such counsel, financial advisers or
accountants and any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such Opinion of
Counsel;
(c) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement;
(d) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other
paper or document, unless requested in writing so to do by Holders of
Certificates evidencing not less than 25% of the Voting Rights allocated to
each Class of Certificates;
(e) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
accountants or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agents, accountants or attorneys
appointed with due care by it hereunder;
(f) the Trustee shall not be required to risk or expend its own funds or
otherwise incur any financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers hereunder if it shall
have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not assured to it;
(g) the Trustee shall not be liable for any loss on any investment of
funds pursuant to this Agreement (other than as issuer of the investment
security);
(h) the Trustee shall not be deemed to have knowledge of an Event of
Default until a Responsible Officer of the Trustee shall have received written
notice thereof; and
(i) the Trustee shall be under no obligation to exercise any of the
trusts, rights or powers vested in it by this Agreement or to institute,
conduct or defend any litigation hereunder or in relation hereto at the
request, order or direction of any of the Certificateholders, pursuant to this
Agreement, unless such Certificateholders shall have offered to the Trustee
reasonable
VIII-2
security or indemnity satisfactory to the Trustee against the costs, expenses
and liabilities which may be incurred therein or thereby.
Section 8.03. Trustee Not Liable for Certificates or
Mortgage Loans.
The recitals contained herein and in the Certificates shall be taken as
the statements of the Depositor or the Seller, as the case may be, and the
Trustee assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Agreement or of the
Certificates or of any Mortgage Loan or related document other than with
respect to the Trustee's execution and countersignature of the Certificates.
The Trustee shall not be accountable for the use or application by the
Depositor or the Master Servicer of any funds paid to the Depositor or the
Master Servicer in respect of the Mortgage Loans or deposited in or withdrawn
from the Certificate Account by the Depositor or the Master Servicer.
Except as provided in Section 2.01(c), the Trustee shall have no
responsibility for filing or recording any financing or continuation statement
in any public office at any time or to otherwise perfect or maintain the
perfection of any security interest or lien granted to it hereunder (unless
the Trustee shall have become the successor Master Servicer).
The Trustee executes the Certificates not in its individual capacity but
solely as Trustee of the Trust Fund created by this Agreement, in the exercise
of the powers and authority conferred and vested in it by this Agreement. Each
of the undertakings and agreements made on the part of the Trustee on behalf
of the Trust Fund in the Certificates is made and intended not as a personal
undertaking or agreement by the Trustee but is made and intended for the
purpose of binding only the Trust Fund.
Section 8.04. Trustee May Own Certificates.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Certificates with the same rights as it would have if
it were not the Trustee.
Section 8.05. Trustee's Fees and Expenses.
As compensation for its activities under this Agreement, the
Trustee may withdraw from the Distribution Account on each Distribution Date
the Trustee Fee for the Distribution Date. The Trustee and any director,
officer, employee, or agent of the Trustee shall be indemnified by the Seller
against any loss, liability, or expense (including reasonable attorney's fees)
resulting from any error in any tax or information return prepared by the
Master Servicer or incurred in connection with any claim or legal action
relating to
(a) this Agreement,
(b) the primary mortgage guaranty insurance acquired by the Trust Fund
from MGIC,
(c) the Certificates, or
(d) 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 under this Agreement. This
VIII-3
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 Seller shall pay
or reimburse the Trustee, for all reasonable expenses, disbursements, and
advances incurred or made by the Trustee in accordance with this Agreement
with respect to
(A) the reasonable compensation, expenses, and disbursements of its
counsel not associated with the closing of the issuance of the Certificates,
(B) the reasonable compensation, expenses, and disbursements of any
accountant, engineer, or appraiser that is not regularly employed by the
Trustee, to the extent that the Trustee must engage them to perform services
under this Agreement, and
(C) printing and engraving expenses in connection with preparing any
Definitive Certificates. Except as otherwise provided in this Agreement, the
Trustee shall not be entitled to payment or reimbursement for any routine
ongoing expenses incurred by the Trustee in the ordinary course of its duties
as Trustee, Registrar, or Paying Agent under this Agreement or for any other
expenses.
Section 8.06. Eligibility Requirements for the Trustee.
The Trustee hereunder shall at all times be a corporation or association
organized and doing business under the laws of a state or the United States of
America, authorized under such laws to exercise corporate trust powers, having
a combined capital and surplus of at least $50,000,000, subject to supervision
or examination by federal or state authority and with a credit rating which
would not cause either of the Rating Agencies to reduce their respective then
current ratings of the Certificates (or having provided such security from
time to time as is sufficient to avoid such reduction) as evidenced in writing
by each Rating Agency. If such corporation or association publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section 8.06 the combined capital and surplus of such corporation or
association shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. In case at any time
the Trustee shall cease to be eligible in accordance with this Section 8.06,
the Trustee shall resign immediately in the manner and with the effect
specified in Section 8.07. The entity serving as Trustee may have normal
banking and trust relationships with the Depositor and its affiliates or the
Master Servicer and its affiliates; provided, however, that such entity cannot
be an affiliate of the Seller, the Depositor or the Master Servicer other than
the Trustee in its role as successor to the Master Servicer.
Section 8.07. Resignation and Removal of the Trustee.
The Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice of resignation to the Depositor, the
Master Servicer, each Rating Agency not less than 60 days before the date
specified in such notice, when, subject to Section 8.08,
VIII-4
such resignation is to take effect, and acceptance by a successor trustee in
accordance with Section 8.08 meeting the qualifications set forth in Section
8.06. If no successor trustee meeting such qualifications shall have been so
appointed and have accepted appointment within 30 days after the giving of
such notice or resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible in accordance with
Section 8.06 and shall fail to resign after written request thereto by the
Depositor, or if at any time the Trustee shall become incapable of acting, or
shall be adjudged as bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, or a tax is imposed with respect
to the Trust Fund by any state in which the Trustee or the Trust Fund is
located and the imposition of such tax would be avoided by the appointment of
a different trustee, then the Depositor or the Master Servicer may remove the
Trustee and appoint a successor trustee by written instrument, in triplicate,
one copy of which shall be delivered to the Trustee, one copy to the Master
Servicer and one copy to the successor trustee.
The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which shall be
delivered by the successor Trustee to the Master Servicer, one complete set to
the Trustee so removed and one complete set to the successor so appointed. The
successor trustee shall notify each Rating Agency of any removal of the
Trustee.
Any resignation or removal of the Trustee and appointment of a successor
trustee pursuant to this Section 8.07 shall become effective upon acceptance
of appointment by the successor trustee as provided in Section 8.08.
Section 8.08. Successor Trustee.
Any successor trustee appointed as provided in Section 8.07 shall
execute, acknowledge and deliver to the Depositor and to its predecessor
trustee and the Master Servicer an instrument accepting such appointment
hereunder and thereupon the resignation or removal of the predecessor trustee
shall become effective and such successor trustee, without any further act,
deed or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor hereunder, with the like effect as
if originally named as trustee herein. The Depositor, the Master Servicer and
the predecessor trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for more fully and certainly
vesting and confirming in the successor trustee all such rights, powers,
duties, and obligations.
No successor trustee shall accept appointment as provided in this
Section 8.08 unless at the time of its acceptance, the successor trustee is
eligible under Section 8.06 and its appointment does not adversely affect the
then current rating of the Certificates.
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Upon acceptance of appointment by a successor trustee as provided in
this Section 8.08, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates. If the Depositor fails to
mail such notice within 10 days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be mailed
at the expense of the Depositor.
Section 8.09. Merger or Consolidation of the Trustee.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to the business of the Trustee, shall be the successor
of the Trustee hereunder, provided that such corporation shall be eligible
under Section 8.06 without the execution or filing of any paper or further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
Section 8.10. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing any Mortgage Note may at the time
be located, the Master Servicer and the Trustee acting jointly shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Trustee to act as co-trustee or co-trustees jointly
with the Trustee, or separate trustee or separate trustees, of all or any part
of the Trust Fund, and to vest in such Person or Persons, in such capacity and
for the benefit of the Certificateholders, such title to the Trust Fund or any
part thereof, whichever is applicable, and, subject to the other provisions of
this Section 8.10, such powers, duties, obligations, rights and trusts as the
Master Servicer and the Trustee may consider appropriate. If the Master
Servicer shall not have joined in such appointment within 15 days after the
receipt by it of a request to do so, or in the case an Event of Default shall
have occurred and be continuing, the Trustee alone shall have the power to
make such appointment. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
8.06 and no notice to Certificateholders of the appointment of any co-trustee
or separate trustee shall be required under Section 8.08.
Every separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(a) To the extent necessary to effectuate the purposes of this Section
8.10, all rights, powers, duties and obligations conferred or imposed upon the
Trustee, except for the obligation of the Trustee under this Agreement to
advance funds on behalf of the Master Servicer, shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Trustee joining in
such act), except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed
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(whether as Trustee hereunder or as successor to the Master Servicer
hereunder), the Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the applicable Trust Fund or any portion
thereof in any such jurisdiction) shall be exercised and performed singly by
such separate trustee or co-trustee, but solely at the direction of the
Trustee;
(b) No trustee hereunder shall be held personally liable because of any
act or omission of any other trustee hereunder and such appointment shall not,
and shall not be deemed to, constitute any such separate trustee or co-trustee
as agent of the Trustee;
(c) The Trustee may at any time accept the resignation of or remove any
separate trustee or co-trustee; and
(d) The Master Servicer, and not the Trustee, shall be liable for the
payment of reasonable compensation, reimbursement and indemnification to any
such separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the separate trustees and co-trustees,
when and as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article VIII. Each separate trustee and co-trustee,
upon its acceptance of the trusts conferred, shall be vested with the estates
or property specified in its instrument of appointment, either jointly with
the Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Trustee. Every such instrument shall be filed with the
Trustee and a copy thereof given to the Master Servicer and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its
estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
Section 8.11. Tax Matters.
It is intended that the assets with respect to which any REMIC election
pertaining to the Trust Fund is to be made, as set forth in the Preliminary
Statement, shall constitute, and that the conduct of matters relating to such
assets shall be such as to qualify such assets as, a "real estate mortgage
investment conduit" as defined in and in accordance with the REMIC Provisions.
In furtherance of such intention, the Trustee covenants and agrees that it
shall act as agent (and the Trustee is hereby appointed to act as agent) on
behalf of any the REMIC and that in such capacity it shall:
VIII-7
(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) and prepare and file with the Internal
Revenue Service and applicable state or local tax authorities income tax or
information returns for each taxable year with respect to any REMIC, described
in the Preliminary Statement containing such information and at the times and
in the manner as may be required by the Code or state or local tax laws,
regulations, or rules, and furnish to Certificateholders the schedules,
statements or information at such times and in such manner as may be required
thereby;
(b) within thirty days of the Closing Date, furnish to the Internal
Revenue Service, on Forms 8811 or as otherwise may be required by the Code,
the name, title, address, and telephone number of the person that the holders
of the Certificates may contact for tax information relating thereto, together
with such additional information as may be required by such Form, and update
such information at the time or times in the manner required by the Code;
(c) make an election that each of REMIC 1, REMIC 2, and REMIC 3 be
treated as a REMIC on the federal tax return for its first taxable year (and,
if necessary, under applicable state law);
(d) prepare and forward to the Certificateholders and to the Internal
Revenue Service and, if necessary, state tax authorities, all information
returns and reports as and when required to be provided to them in accordance
with the REMIC Provisions, including the calculation of any original issue
discount using the Prepayment Assumption (as defined in the Prospectus
Supplement);
(e) provide information necessary for the computation of tax imposed on
the transfer of a Residual Certificate to a Person that is not a Permitted
Transferee, or an agent (including a broker, nominee or other middleman) of a
Non-Permitted Transferee, or a pass-through entity in which a Non-Permitted
Transferee is the record holder of an interest (the reasonable cost of
computing and furnishing such information may be charged to the Person liable
for such tax);
(f) to the extent that they are under its control, conduct matters
relating to such assets at all times that any Certificates are outstanding so
as to maintain the status as a REMIC under the REMIC Provisions;
(g) not knowingly or intentionally take any action or omit to take any
action that would cause the termination of the REMIC status;
(h) pay, from the sources specified in the last paragraph of this
Section 8.11, the amount of any federal or state tax, including prohibited
transaction taxes as described below, imposed on the REMIC before its
termination when and as the same shall be due and payable (but such obligation
shall not prevent the Trustee or any other appropriate Person from contesting
any such tax in appropriate proceedings and shall not prevent the Trustee from
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings);
VIII-8
(i) ensure that federal, state or local income tax or information
returns shall be signed by the Trustee or such other person as may be required
to sign such returns by the Code or state or local laws, regulations or rules;
(j) maintain records relating to the REMIC, including the income,
expenses, assets, and liabilities thereof and the fair market value and
adjusted basis of the assets determined at such intervals as may be required
by the Code, as may be necessary to prepare the foregoing returns, schedules,
statements or information; and
(k) as and when necessary and appropriate, represent the REMIC 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 the REMIC, enter into settlement agreements with any
governmental taxing agency, extend any statute of limitations relating to any
tax item of the REMIC, and otherwise act on behalf of the 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. Moreover, the Depositor
shall provide information to the Trustee concerning the value to each Class of
Certificates of the right to receive Basis Risk CarryForward Amounts from the
Excess Reserve Fund. 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" of the REMIC as
defined in Section 860F(a)(2) of the Code, on the "net income from foreclosure
property" of the REMIC as defined in Section 860G(c) of the Code, on any
contribution to the REMIC after the Startup Day pursuant to Section 860G(d) of
the Code, or any other tax is imposed, including any minimum tax imposed on
the REMIC 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 such tax or any other tax arises out of or results
from negligence of the Trustee in the performance of any of its obligations
under this Agreement, (ii) the Master Servicer or the Seller, in the case of
any such minimum tax, if such tax arises out of or results from a breach by
the Master Servicer or Seller of any of their obligations under this
Agreement, (iii) the Seller if such tax arises out of or results from the
Seller's obligation to repurchase a Mortgage Loan pursuant to Section 2.02 or
2.03, or (iv) in all other cases, or if the Trustee, the Master Servicer, or
the Seller fails to honor its obligations under the preceding clauses (i),
(ii),
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or (iii), any such tax will be paid with amounts otherwise to be distributed
to the Certificateholders, as provided in Section 3.09(b).
Section 8.12. Periodic Filings.
Pursuant to written instructions from the Depositor, the Trustee shall
prepare, execute and file all periodic reports required under the Securities
Exchange Act of 1934 in conformity with the terms of the relief granted to
issuers similar to the Trust Fund. In connection with the preparation and
filing of such periodic reports, the Depositor and the Master Servicer shall
timely provide to the Trustee all material information available to them which
is required to be included in such reports and not known to them to be in the
possession of the Trustee and such other information as the Trustee reasonably
may request from either of them and otherwise reasonably shall cooperate with
the Trustee. The Trustee shall have no liability with respect to any failure
to properly prepare or file such periodic reports resulting from or relating
to the Trustee's inability or failure to obtain any information not resulting
from its own negligence or willful misconduct.
Section 8.13. [Reserved]
Section 8.14. Tax Classification of the Excess
Reserve Fund Account
For federal income tax purposes, the Trustee shall treat the Excess
Reserve Fund Account as an outside reserve fund, within the meaning of
Treasury Regulation ss. 1.860G-2(h), that is beneficially owned by the holder
of the Class X Certificate. The Trustee shall treat the rights that each Class
of Certificates has to receive payments of Basis Risk CarryForward Amounts
from the Excess Reserve Fund Account as rights to receive payments under an
interest rate cap contract written by the Class X Certificateholder in favor
of each Class. Accordingly, each Class of Certificates will comprise two
components - an Upper Tier Regular Interest and an interest in a cap contract.
The Trustee shall allocate the issue price for a Class of Certificates between
two components for purposes of determining the issue price of the Upper Tier
Regular Interest component.
VIII-10
ARTICLE NINE
TERMINATION
Section 9.01. Termination upon Liquidation or
Purchase of the Mortgage Loans.
Subject to Section 9.03, the obligations and responsibilities
of the Depositor, the Master Servicer and the Trustee created hereby with
respect to the Trust Fund shall terminate upon the earlier of
(a) the purchase by the Master Servicer of all Mortgage Loans (and REO
Properties) at the price equal to the sum of
(i) 100% of the Stated Principal Balance of each Mortgage Loan
(other than in respect of REO Property) plus one month's accrued
interest thereon at the applicable Adjusted Mortgage Rate and
(ii) the lesser of (x) the appraised value of any REO Property as
determined by the higher of two appraisals completed by two independent
appraisers selected by the Master Servicer at the expense of the Master
Servicer and (y) the Stated Principal Balance of each Mortgage Loan
related to any REO Property, in each case plus accrued and unpaid
interest thereon at the applicable Adjusted Net Mortgage Rate and (b)
the later of
(i) the maturity or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan remaining in the Trust Fund and the
disposition of all REO Property and
(ii) the distribution to Certificateholders of all amounts
required to be distributed to them pursuant to this Agreement. In no
event shall the trusts created hereby continue beyond the expiration of
21 years from the death of the survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St.
James's, living on the date hereof.
The right to repurchase all Mortgage Loans and REO Properties pursuant
to clause (a) above shall be conditioned upon the aggregate Stated Principal
Balance of the Mortgage Loans, at the time of any such repurchase, aggregating
ten percent or less of the aggregate Cut-off Date Principal Balance of the
Mortgage Loans.
Section 9.02. Final Distribution on the Certificates.
If on any Determination Date, the Master Servicer determines
that there are no Outstanding Mortgage Loans and no other funds or assets in
the Trust Fund other than the funds in the Certificate Account, the Master
Servicer shall direct the Trustee promptly to send a final distribution notice
to each Certificateholder. If the Master Servicer elects to terminate the
Trust Fund pursuant to clause (a) of Section 9.01, at least 20 days before the
date notice is to be
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mailed to the affected Certificateholders the Master Servicer shall notify the
Depositor and the Trustee of the date the Master Servicer intends to terminate
the Trust Fund and of the applicable repurchase price of the Mortgage Loans
and REO Properties.
Notice of any termination of the Trust Fund, specifying the Distribution
Date on which Certificateholders may surrender their Certificates for payment
of the final distribution and cancellation, shall be given promptly by the
Trustee by letter to Certificateholders mailed not earlier than the 10th day
and not later than the 15th day of the month next preceding the month of such
final distribution. Any such notice shall specify (a) the Distribution Date
upon which final distribution on the Certificates will be made upon
presentation and surrender of Certificates at the office therein designated,
(b) the amount of such final distribution, (c) the location of the office or
agency at which such presentation and surrender must be made, and (d) that the
Record Date otherwise applicable to the Distribution Date is not applicable,
distributions being made only upon presentation and surrender of the
Certificates at the office therein specified. The Master Servicer will give
such notice to each Rating Agency at the time such notice is given to
Certificateholders.
If the notice is given, the Master Servicer shall cause all funds in the
Certificate Account to be remitted to the Trustee for deposit in the
Distribution Account on the Business Day before the applicable Distribution
Date in an amount equal to the final distribution in respect of the
Certificates. Upon such final deposit with respect to the Trust Fund and the
receipt by the Trustee of a Request for Release therefor, the Trustee shall
promptly release to the Master Servicer the Mortgage Files for the Mortgage
Loans.
Upon presentation and surrender of the Certificates, the Trustee shall
cause to be distributed to the Certificateholders of each Class, in each case
on the final Distribution Date and in the order set forth in Section 4.02, in
proportion to their respective Percentage Interests, with respect to
Certificateholders of the same Class, an amount equal to (i) as to each Class
of Regular Certificates (except the Class X Certificate), its Certificate
Balance plus for each such Class and the Class X Certificate accrued interest
thereon in the case of an interest-bearing Certificate and (ii) as to the
Residual Certificates, any amount remaining on deposit in the Distribution
Account (other than the amounts retained to meet claims) after application
pursuant to clause (i) above.
If any affected Certificateholders 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
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been surrendered for cancellation, the Class R Certificateholders shall be
entitled to all unclaimed funds and other assets of the Trust Fund which
remain subject hereto.
Section 9.03. Additional Termination Requirements.
(a) If the Master Servicer exercises its purchase option with
respect to the Mortgage Loans as provided in Section 9.01, the Trust Fund
shall be terminated in accordance with the following additional requirements,
unless the Trustee has been supplied with an Opinion of Counsel, at the
expense of the Master Servicer, to the effect that the failure to comply with
the requirements of this Section 9.03 will not (i) result in the imposition of
taxes on "prohibited transactions" on either REMIC as defined in Section 860F
of the Code, or (ii) cause either the Lower Tier REMIC or the Upper Tier REMIC
to fail to qualify as a REMIC at any time that any Certificates are
outstanding:
(b) The Trustee shall sell all of the assets of the Trust Fund to the
Master Servicer, and, within 90 days of such sale, shall distribute to the
Certificateholders the proceeds of such sale in complete liquidation of each
of the Lower Tier REMIC and the Upper Tier REMIC.
(c) The Trustee shall attach a statement to the final federal income tax
return for each of the Lower Tier REMIC and the Upper Tier REMIC stating that
pursuant to Treasury Regulation ss. 1.860F-1, the first day of the 90-day
liquidation period for each the REMIC was the date on which the Trustee sold
the assets of the Trust Fund to the Master Servicer.
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ARTICLE TEN
MISCELLANEOUS PROVISIONS
Section 10.01. Amendment.
This Agreement may be amended from time to time by the Depositor, the
Master Servicer and the Trustee without the consent of any of the
Certificateholders
(i) to cure any ambiguity or mistake,
(ii) to correct any defective provision herein or to supplement any
provision herein which may be inconsistent with any other provision herein,
(iii) to add to the duties of the Depositor, the Seller or the Master
Servicer,
(iv) to add any other provisions with respect to matters or questions
arising hereunder, or
(v) to modify, alter, amend, add to, or rescind any of the terms or
provisions contained in this Agreement.
No action pursuant to clauses (iv) or (v) above may, as evidenced by an
Opinion of Counsel (which Opinion of Counsel shall not be an expense of the
Trustee or the Trust Fund), adversely affect in any material respect the
interests of any Certificateholder. The amendment shall not be deemed to
adversely affect in any material respect the interests of the
Certificateholders if the Person requesting the amendment obtains a letter
from each Rating Agency stating that the amendment would not result in the
downgrading or withdrawal of the respective ratings then assigned to the
Certificates. Any such letter in and of itself will not represent a
determination as to the materiality of any amendment and will represent a
determination only as to the credit issues affecting any rating.
The Trustee, the Depositor, and the Master Servicer also may at any time
and from time to time amend this Agreement without the consent of the
Certificateholders to modify, eliminate, or add to any of its provisions to
the extent necessary or helpful to
(i) maintain the qualification of each Lower Tier REMIC and the Upper
Tier REMIC under the Code,
(ii) avoid or minimize the risk of the imposition of any tax on the
Lower Tier REMIC or the Upper Tier REMIC 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 those purposes.
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This Agreement may also be amended from time to time by the Depositor,
the Master Servicer and the Trustee with the consent of the Holders of
Certificates of Certificates evidencing Percentage Interests aggregating not
less than 66 2/3% of each Class of Certificates affected thereby for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Agreement or of modifying in any manner the
rights of the Holders of Certificates. No amendment shall
(i) reduce in any manner the amount of, or delay the timing of, payments
required to be distributed on any Certificate without the consent of the
Holder of such Certificate,
(ii) adversely affect in any material respect the interests of the
Holders of any Class of Certificates in a manner other than as described in
(i), without the consent of the Holders of Certificates of the Class
evidencing, as to the Class, Percentage Interests aggregating not less than
66 2/3%, or
(iii) reduce the aforesaid percentages of Certificates the Holders of
which are required to consent to any such amendment, without the consent of
the Holders of all such Certificates then outstanding.
Notwithstanding any contrary provision of this Agreement, the Trustee
shall not consent to any amendment to this Agreement unless it shall have
first received an Opinion of Counsel, which opinion shall not be an expense of
the Trustee or the Trust Fund, to the effect that such amendment will not
cause the imposition of any tax on any REMIC or the Certificateholders or
cause any REMIC to fail to qualify as a REMIC at any time that any
Certificates are outstanding.
Promptly after the execution of any amendment to this Agreement
requiring the consent of Certificateholders, the Trustee shall furnish written
notification of the substance or a copy of such amendment to each
Certificateholder and each Rating Agency.
It shall not be necessary for the consent of Certificateholders under
this Section 10.01 to approve the particular form of any proposed amendment,
but it shall be sufficient if such consent shall approve the substance
thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject
to such reasonable regulations as the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee to enter into an
amendment without receiving an Opinion of Counsel (which Opinion shall not be
an expense of the Trustee or the Trust Fund), satisfactory to the Trustee that
(i) such amendment is permitted and is not prohibited by this Agreement and
that all requirements for amending this Agreement have been complied with; and
(ii) either (A) the amendment does not adversely affect in any material
respect the interests of any Certificateholder or (B) the conclusion set forth
in the preceding clause (A) is not required to be reached pursuant to this
Section 10.01.
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Section 10.02. Recordation of Agreement; Counterparts.
This Agreement is subject to recordation in all appropriate
public offices for real property records in all the counties or other
comparable jurisdictions in which any or all of the properties subject to the
Mortgages are situated, and in any other appropriate public recording office
or elsewhere, such recordation to be effected by the Master Servicer at its
expense, but only upon receipt of an Opinion of Counsel to the effect that
such recordation materially and beneficially affects the interests of the
Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one
and the same instrument.
Section 10.03. Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO
BE PERFORMED IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
Section 10.04. Intention of Parties.
It is the express intent of the parties hereto that the
conveyance (i) of the Mortgage Loans by the Seller to the Depositor and (ii)
of the Trust Fund by the Depositor to the Trustee each be, and be construed
as, an absolute sale thereof. It is, further, not the intention of the parties
that such conveyances be deemed a pledge thereof. However, if, notwithstanding
the intent of the parties, the assets are held to be the property of the
Seller or Depositor, as the case may be, or if for any other reason this
Agreement is held or deemed to create a security interest in either such
assets, then (i) this Agreement shall be deemed to be a security agreement
within the meaning of the Uniform Commercial Code of the State of New York and
(ii) the conveyances provided for in this Agreement shall be deemed to be an
assignment and a grant (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.
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Section 10.05. Notices.
(a) The Trustee shall use its best efforts to promptly provide notice to
each Rating Agency with respect to each of the following of which it has
actual knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Event of Default that has not been cured;
3. The resignation or termination of the Master Servicer or the Trustee
and the appointment of any successor;
4. The repurchase or substitution of Mortgage Loans pursuant to Section
2.03; and
5. The final payment to Certificateholders.
In addition, the Trustee shall promptly furnish to each Rating Agency
copies of the following:
1. Each report to Certificateholders described in Section 4.03;
2. Each annual statement as to compliance described in Section 3.17;
3. Each annual independent public accountants' servicing report
described in Section 3.18; and
4. Any notice of a purchase of a Mortgage Loan pursuant to Section 2.02,
2.03 or 3.11.
(b) All directions, demands and notices hereunder shall be in writing
and shall be deemed to have been duly given when delivered to (a) in the case
of the Depositor, IndyMac ABS, Inc., 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxx 00000, Attention: Secondary Marketing Department, (b) in the case
of the Master Servicer, IndyMac Bank, F.S.B., 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxx 00000, Attention: Secondary Marketing Department or such other
address as may be hereafter furnished to the Depositor and the Trustee by the
Master Servicer in writing, (c) in the case of the Trustee to the Corporate
Trust Office, Bankers Trust Company of California, N.A., 0000 Xxxx Xx. Xxxxxx
Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000-0000, Attention: Mortgage Administration
IN01C1, Series SPMD 2001-A, or such other address as the Trustee may hereafter
furnish to the Depositor or Master Servicer; and (d) in the case of each of
the Rating Agencies, the address specified therefor in the definition
corresponding to the name of such Rating Agency. Notices to Certificateholders
shall be deemed given when mailed, first class postage prepaid, to their
respective addresses appearing in the Certificate Register.
Section 10.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or
terms of this Agreement shall be for any reason whatsoever held invalid, then
such covenants, agreements, provisions or terms shall be deemed severable from
the remaining covenants, agreements, provisions or terms
X-4
of this Agreement and shall in no way affect the validity or enforceability of
the other provisions of this Agreement or of the Certificates or the rights of
the Holders thereof.
Section 10.07. Assignment.
Notwithstanding anything to the contrary contained herein, except as
provided in Section 6.02, this Agreement may not be assigned by the Master
Servicer without the prior written consent of the Trustee and Depositor.
Section 10.08. Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the trust created hereby, nor entitle such
Certificateholder's legal representative or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a petition or
winding up of the trust created hereby, or otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as provided
herein) or in any manner otherwise control the operation and management of the
Trust Fund, or the obligations of the parties hereto, nor shall anything
herein set forth or contained in the terms of the Certificates be construed so
as to constitute the Certificateholders from time to time as partners or
members of an association; nor shall any Certificateholder be under any
liability to any third party because of any action taken by the parties to
this Agreement pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this
Agreement, unless such Holder previously shall have given to the Trustee a
written notice of an Event of Default and of the continuance thereof, as
herein provided, and unless the Holders of Certificates evidencing not less
than 25% of the Voting Rights evidenced by the Certificates shall also have
made written request to the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs,
expenses, and liabilities to be incurred therein or thereby, and the Trustee,
for 60 days after its receipt of such notice, request and offer of indemnity
shall have neglected or refused to institute any such action, suit or
proceeding; it being understood and intended, and being expressly covenanted
by each Certificateholder with every other Certificateholder and the Trustee,
that no one or more Holders of Certificates shall have any right in any manner
whatever by virtue or by availing itself or themselves of any provisions of
this Agreement to affect, disturb or prejudice the rights of the Holders of
any other of the Certificates, or to obtain or seek to obtain priority over or
preference to any other such Holder or to enforce any right under this
Agreement, except in the manner herein provided and for the common benefit of
all Certificateholders. For the protection and 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.
X-5
Section 10.09. Inspection and Audit Rights.
The Master Servicer agrees that, on reasonable prior notice, it
will permit any representative of the Depositor or the Trustee during such
Person's normal business hours, to examine all the books of account, records,
reports and other papers of such Person relating to the Mortgage Loans, to
make copies and extracts therefrom, to cause such books to be audited by
independent certified public accountants selected by the Depositor or the
Trustee and to discuss its affairs, finances and accounts relating to the
Mortgage Loans with its officers, employees and independent public accountants
(and by this provision the Master Servicer hereby authorizes said accountants
to discuss with such representative such affairs, finances and accounts), all
at such reasonable times and as often as may be reasonably requested. Any
out-of-pocket expense incident to the exercise by the Depositor or the Trustee
of any right under this Section 10.09 shall be borne by the Master Servicer.
Section 10.10. Certificates Nonassessable and Fully
Paid.
It is the intention of the Depositor that Certificate holders 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.
IndyMac agrees that this Agreement is and shall remain at all times
before the time at which this Agreement terminates an official record of
IndyMac as referred to in Section 13(e) of the Federal Deposit Insurance Act.
* * * * * *
X-6
IN WITNESS WHEREOF, the Depositor, the Trustee, and the Seller and
Master Servicer have caused their names to be signed hereto by their
respective officers thereunto duly authorized as of the day and year first
above written.
INDYMAC ABS, INC.
as Depositor
By: /s/ Xxxxx Xxxxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Executive Vice President
BANKERS TRUST COMPANY OF CALIFORNIA,
N.A. as Trustee
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Associate
INDYMAC BANK, F.S.B.
as Seller and Master Servicer
By: /s/ Xxxxx Xxxxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Executive Vice President
SCHEDULE I
Mortgage Loan Schedule
[Delivered at Closing to Trustee]
S-I-1
SCHEDULE II
Home Equity Mortgage Loan Asset-Backed Certificates,
Series SPMD 2001-A
Representations and Warranties of the Seller/Master Servicer
Indy Mac Bank, F.S.B. ("IndyMac") hereby makes the representations and
warranties set forth in this Schedule II to the Depositor and the Trustee, as
of the Closing Date, or if so specified herein, as of the Cut-off Date.
Capitalized terms used but not otherwise defined in this Schedule II shall
have the meanings ascribed thereto in the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement") relating to the above-referenced Series,
among IndyMac, as seller and master servicer, IndyMac ABS, Inc., as depositor,
and Bankers Trust Company of California, N.A., as trustee.
(1) IndyMac is duly organized as a federally insured savings bank
and is validly existing and in good standing under the laws of the
United States of America and is duly authorized and qualified to
transact any business contemplated by the Pooling and Servicing
Agreement to be conducted by IndyMac in any state in which a Mortgaged
Property is located or is otherwise not required under applicable law to
effect such qualification and, in any event, is in compliance with the
doing business laws of any such state, to the extent necessary to ensure
its ability to enforce each Mortgage Loan, to service the Mortgage Loans
in accordance with the Pooling and Servicing Agreement and to perform
any of its other obligations under the Pooling and Servicing Agreement
in accordance with the terms thereof.
(2) IndyMac has the full corporate power and authority to sell and
service each Mortgage Loan, and to execute, deliver and perform, and to
enter into and consummate the transactions contemplated by the Pooling
and Servicing Agreement and has duly authorized by all necessary
corporate action on the part of IndyMac the execution, delivery and
performance of the Pooling and Servicing Agreement; and the Pooling and
Servicing Agreement, assuming the due authorization, execution and
delivery thereof by the other parties thereto, constitutes a legal,
valid and binding obligation of IndyMac, enforceable against IndyMac in
accordance with its terms, except that (a) the enforceability thereof
may be limited by bankruptcy, insolvency, moratorium, receivership and
other similar laws relating to creditors' rights generally and (b) the
remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought.
(3) The execution and delivery of the Pooling and Servicing
Agreement by IndyMac, the sale and servicing of the Mortgage Loans by
IndyMac under the Pooling
S-II-1
and Servicing Agreement, the consummation of any other of the
transactions contemplated by the Pooling and Servicing Agreement, and the
fulfillment of or compliance with the terms thereof are in the ordinary
course of business of IndyMac and will not (A) result in a material
breach of any term or provision of the charter or by-laws of IndyMac or
(B) materially conflict with, result in a material breach, violation or
acceleration of, or result in a material default under, any other
material agreement or instrument to which IndyMac is a party or by which
it may be bound, or (C) constitute a material violation of any statute,
order or regulation applicable to IndyMac of any court, regulatory body,
administrative agency or governmental body having jurisdiction over
IndyMac (including the Office of Thrift Supervision, the Federal Deposit
Insurance Corporation or any other governmental entity having regulatory
authority over IndyMac); and IndyMac is not in breach or violation of any
material indenture or other material agreement or instrument, or in
violation of any statute, order or regulation of any court, regulatory
body, administrative agency or governmental body having jurisdiction over
it (including the Office of Thrift Supervision, the Federal Deposit
Insurance Corporation or any other governmental entity having regulatory
authority over IndyMac) which breach or violation may materially impair
IndyMac's ability to perform or meet any of its obligations under the
Pooling and Servicing Agreement.
(4) Each Servicer is an approved servicer of conventional mortgage
loans for FNMA or FHLMC or is a mortgagee approved by the Secretary of
Housing and Urban Development pursuant to Sections 203 and 211 of the
National Housing Act.
(5) No litigation is pending or, to the best of IndyMac's
knowledge, threatened against IndyMac that would prohibit the execution
or delivery of, or performance under, the Pooling and Servicing
Agreement by IndyMac.
S-II-2
SCHEDULE III
Home Equity Mortgage Loan Asset-Backed Certificates,
Series SPMD 2001-A
Representations and Warranties as to the Mortgage Loans
IndyMac Bank, F.S.B. ("IndyMac") hereby makes the representations and
warranties set forth in this Schedule III to the Depositor and the Trustee, as
of the Closing Date or Subsequent Transfer Date, as applicable, or if so
specified herein, as of the related Cut-off Date or date of origination of the
Mortgage Loan (as applicable). Capitalized terms used but not otherwise
defined in this Schedule III shall have the meanings ascribed thereto in the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement")
relating to the above-referenced Series, among IndyMac, as seller and master
servicer, IndyMac ABS, Inc., as depositor, and Bankers Trust Company of
California, N.A., as trustee.
(1) The information set forth on Schedule I to the Pooling and
Servicing Agreement with respect to each Mortgage Loan is true and
correct in all material respects as of the Closing Date or Subsequent
Transfer Date, as applicable.
(2) As of the Closing Date, all regularly scheduled monthly
payments due with respect to each Mortgage Loan up to and including the
Due Date before the related Cut-off Date have been made; and as of the
related Cut-off Date, no Mortgage Loan had a regularly scheduled monthly
payment that was 60 or more days Delinquent during the twelve months
before the related Cut-off Date.
(3) With respect to any Mortgage Loan that is not a Cooperative
Loan, each Mortgage is a valid and enforceable first or second 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.
S-III-1
(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.
(7) There are no mechanics' liens or claims for work, labor or
material affecting any Mortgaged Property which are or may be a lien
before, or equal with, the lien of such Mortgage, except those which are
insured against by the title insurance policy referred to in item (13)
below.
(8) To the best of the Seller's knowledge, no Mortgaged Property
has been materially damaged by water, fire, earthquake, windstorm,
flood, tornado or similar casualty (excluding casualty from the presence
of hazardous wastes or hazardous substances, as to which the Seller
makes no representation) so as to affect adversely the value of the
related Mortgaged Property as security for the Mortgage Loan.
(9) Each Mortgage Loan at origination complied in all material
respects with applicable state and federal laws, including usury, equal
credit opportunity, real estate settlement procedures, truth-in-lending,
HOEPA, and disclosure laws, or any noncompliance does not have a
material adverse effect on the value of the related Mortgage Loan.
(10) As of the Closing Date or Subsequent Transfer Date, as
applicable, the Seller has not modified the Mortgage in any material
respect (except that a Mortgage Loan may have been modified by a written
instrument which has been recorded or submitted for recordation, if
necessary, to protect the interests of the Certificateholders and which
has been delivered to the Trustee); satisfied, cancelled or subordinated
such Mortgage in whole or in part; released the related Mortgaged
Property in whole or in part from the lien of such Mortgage; or executed
any instrument of release, cancellation, modification or satisfaction
with respect thereto.
(11) A lender's policy of title insurance together with a
condominium endorsement and extended coverage endorsement, if
applicable, in an amount at least equal to the Cut-off Date Principal
Balance of each the Mortgage Loan or a commitment (binder) to issue the
same was effective on the date of the origination of each Mortgage Loan,
each such policy is valid and remains in full force and effect.
S-III-2
(12) Each Mortgage Loan was originated (within the meaning of
Section 3(a)(41) of the Securities Exchange Act of 1934, as amended) by
an entity that satisfied at the time of origination the requirements of
Section 3(a)(41) of the Securities Exchange Act of 1934, as amended.
(13) To the best of the Seller's knowledge, all of the
improvements which were included for the purpose of determining the
Appraised Value of the Mortgaged Property lie wholly within the
boundaries and building restriction lines of such property, and no
improvements on adjoining properties encroach upon the Mortgaged
Property, unless such failure to be wholly within such boundaries and
restriction lines or such encroachment, as the case may be, does not
have a material effect on the value of the Mortgaged Property.
(14) To the best of the Seller's knowledge, as of the date of
origination of each Mortgage Loan, no improvement located on or being
part of the Mortgaged Property is in violation of any applicable zoning
law or regulation unless such violation would not have a material
adverse effect on the value of the related Mortgaged Property. To the
best of the Seller's knowledge, all inspections, licenses and
certificates required to be made or issued with respect to all occupied
portions of the Mortgaged Property and, with respect to the use and
occupancy of the same, including certificates of occupancy and fire
underwriting certificates, have been made or obtained from the
appropriate authorities, unless the lack thereof would not have a
material adverse effect on the value of the Mortgaged Property.
(15) The Mortgage Note and the related Mortgage are genuine, and
each is the legal, valid and binding obligation of the maker thereof,
enforceable in accordance with its terms and under applicable law.
(16) The proceeds of the Mortgage Loan have been fully disbursed
and there is no requirement for future advances thereunder.
(17) The related Mortgage contains customary and enforceable
provisions which render the rights and remedies of the holder thereof
adequate for the realization against the Mortgaged Property of the
benefits of the security, including, (i) in the case of a Mortgage
designated as a deed of trust, by trustee's sale, and (ii) otherwise by
judicial foreclosure.
(18) With respect to each Mortgage constituting a deed of trust, a
trustee, duly qualified under applicable law to serve as such, has been
properly designated and currently so serves and is named in such
Mortgage, and no fees or expenses are or will become payable by the
Certificateholders to the trustee under the deed of trust, except in
connection with a trustee's sale after default by the Mortgagor.
S-III-3
(19) At the related Cut-off Date, the improvements upon each
Mortgaged Property are covered by a valid and existing hazard insurance
policy with a generally acceptable carrier that provides for fire and
extended coverage and coverage for such other hazards as are customarily
required by institutional single family mortgage lenders in the area
where the Mortgaged Property is located, and the Seller has received no
notice that any premiums due and payable thereon have not been paid; the
Mortgage obligates the Mortgagor thereunder to maintain all such
insurance including flood insurance at the Mortgagor's cost and expense.
Anything to the contrary in this item (19) notwithstanding, no breach of
this item (19) shall be deemed to give rise to any obligation of the
Seller to repurchase or substitute for such affected Mortgage Loan or
Loans so long as the Master Servicer maintains a blanket policy pursuant
to the second paragraph of Section 3.10(a) of the Pooling and Servicing
Agreement.
(20) If at the time of origination of each Mortgage Loan, the
related Mortgaged Property was in an area then identified in the Federal
Register by the Federal Emergency Management Agency as having special
flood hazards, a flood insurance policy in a form meeting the
then-current requirements of the Flood Insurance Administration is in
effect with respect to the Mortgaged Property with a generally
acceptable carrier.
(21) To the best of the Seller's knowledge, there is no proceeding
pending or threatened for the total or partial condemnation of any
Mortgaged Property, nor is such a proceeding currently occurring.
(22) To the best of the Seller's knowledge, there is no material
event which, with the passage of time or with notice and the expiration
of any grace or cure period, would constitute a material non-monetary
default, breach, violation or event of acceleration under the Mortgage
or the related Mortgage Note; and the Seller has not waived any material
non-monetary default, breach, violation or event of acceleration.
(23) Each Mortgage File contains an appraisal of the related
Mortgaged Property in a form acceptable to FNMA or FHLMC.
(24) Any leasehold estate securing a Mortgage Loan has a stated
term at least as long as the term of the related Mortgage Loan.
(25) Each Mortgage Loan was selected from among the outstanding
one- to four-family sub-prime mortgage loans in the Seller's sub-prime
mortgage portfolio at the Closing Date as to which the representations
and warranties made with respect to the Mortgage Loans set forth in this
Schedule III can be made. No such selection was made in a manner
intended to adversely affect the interests of the Certificateholders.
(26) No more than 1.60% (by aggregate Stated Principal Balance) of
the Mortgage Loans are Cooperative Loans.
S-III-4
(27) Each Cooperative Loan is secured by a valid, subsisting and
enforceable perfected first and second liens (in the case of Loan Group
1) and first liens only (in the case of Loan Group 2) and security
interest in the related Mortgaged Property, subject only to (i) the
rights of the Cooperative Corporation to collect maintenance and
assessments from the Mortgagor, (ii) the lien of the Blanket Mortgage on
the Cooperative Property and of real property taxes, water and sewer
charges, rents and assessments on the Cooperative Property not yet due
and payable, and (iii) other matters to which like Cooperative Units are
commonly subject which do not materially interfere with the benefits of
the security intended to be provided by the Security Agreement or the
use, enjoyment, value or marketability of the Cooperative Unit. Each
original UCC financing statement, continuation statement or other
governmental filing or recordation necessary to create or preserve the
perfection and priority of the first priority lien and security interest
in the Cooperative Shares and Proprietary Lease has been timely and
properly made. Any security agreement, chattel mortgage or equivalent
document related to the Cooperative Loan and delivered to the sponsor or
its designee establishes in the Seller a valid and subsisting perfected
first or second lien (in the case of a Cooperative Loan that is in Loan
Group 1) and first lien only (in the case of a (Cooperative Loan that is
in Loan Group 2) on and security interest in the property described
therein, and the Seller has full right to sell and assign the same.
(28) Each Cooperative Corporation qualifies as a "cooperative
housing corporation" as defined in Section 216 of the Code.
S-III-5
SCHEDULE IV
PLANNED BALANCE SCHEDULES
[Not applicable]
S-IV-1
EXHIBIT G
FORM OF INITIAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Master Servicer]
[Seller]
____________________
____________________
Re: Pooling and Servicing Agreement among IndyMac
ABS, Inc., as Depositor, IndyMac Bank, F.S.B.,
as Seller and Master Servicer, and Bankers Trust
Company of California, N.A., as Trustee, Home
Equity Mortgage Loan Asset-Backed Trust, Series
SPMD 2001-A, Home Equity Mortgage Loan
Asset-Backed Certificates, Series SPMD 2001-A
[and the Subsequent Transfer Agreement dated as
of [______ __], 2001, among IndyMac ABS, Inc.,
as Depositor, IndyMac Bank, F.S.B., as Seller,
and Bankers Trust Company of California, N.A.,
as Trustee]
--------------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), [and the
above-captioned Subsequent Transfer Agreement] the undersigned, as Trustee,
hereby certifies that, as to each [Initial][Subsequent] Mortgage Loan listed
in the Mortgage Loan Schedule (other than any [Initial][Subsequent] Mortgage
Loan listed in the attached schedule), it has received:
(i) the original Mortgage Note, endorsed as provided in the following
form: "Pay to the order of ________, without recourse"; and
(ii) a duly executed assignment of the Mortgage (which may be included
in a blanket assignment or assignments); provided, however, that it has
received no assignment with respect to any Mortgage for which the related
Mortgaged Property is located in the Commonwealth of Puerto Rico.
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to such
[Initial][Subsequent] 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 [Initial][Subsequent] Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness, or suitability of any such [Initial][Subsequent]
Mortgage Loan.
Capitalized words and phrases used herein have the respective meanings
assigned to them in the Pooling and Servicing Agreement.
BANKERS TRUST COMPANY OF CALIFORNIA,
N.A.
as Trustee
By: _____________________________________
Name:____________________________________
Title:___________________________________
EXHIBIT G-1
FORM OF DELAY DELIVERY CERTIFICATION
[date]
[Depositor]
[Master Servicer]
Re: Pooling and Servicing Agreement among IndyMac
ABS, Inc., as Depositor, IndyMac Bank, F.S.B.,
as Seller and Master Servicer, and Bankers Trust
Company of California, N.A., as Trustee, Home
Equity Mortgage Loan Asset-Backed Trust, Series
SPMD 2001-A, Home Equity Mortgage Loan
Asset-Backed Certificates, Series SPMD 2001-A
[and the Subsequent Transfer Agreement dated as
of [_______ __], 2001, among IndyMac ABS, Inc.,
as Depositor, IndyMac Bank, F.S.B., as Seller,
and Bankers Trust Company of California, N.A.,
as Trustee]
--------------------------------------------------
Gentlemen:
[Reference is made to the Initial Certification of Trustee relating to
the above-referenced series, with the schedule of exceptions attached thereto,
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
undersigned hereby certifies that [, with respect to the Subsequent Mortgage
Loans delivered in connection with the Subsequent Transfer Agreement,] as to
each Delay Delivery Mortgage Loan listed on the Schedule A attached hereto
(other than any [Initial Mortgage Loan][Subsequent Mortgage Loan] paid in full
or listed on Schedule B attached hereto) it has received:
(i) (A) 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 such endorsement being sufficient to transfer
all interest of the party so endorsing, as noteholder or assignee
thereof, in that Mortgage Note) and (B) with respect to any Lost
Mortgage Note, a lost note affidavit from the Seller stating that
the original Mortgage Note was lost or destroyed, together with a
copy of such Mortgage Note;
(ii) 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 such mortgage (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 the assignment
relates); provided that such 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.
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to the
Mortgage Loan.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any
of the [Initial Mortgage Loans][Subsequent Mortgage Loans] identified on the
[Mortgage Loan Schedule][Loan Number and Borrower Identification Mortgage Loan
Schedule] or (ii) the collectibility, insurability, effectiveness or
suitability of any such [Initial Mortgage Loan][Subsequent Mortgage Loan].
Capitalized words and phrases used herein have the respective meanings
assigned to them in the above-captioned Pooling and Servicing Agreement.
BANKERS TRUST COMPANY OF CALIFORNIA,N.A.
as Trustee
By:_________________________
Name:
Title:
EXHIBIT H
FORM OF FINAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Master Servicer]
[Seller]
____________________
____________________
Re: Pooling and Servicing Agreement among IndyMac
ABS, Inc., as Depositor, IndyMac Bank, F.S.B.,
as Seller and Master Servicer, and Bankers Trust
Company of California, N.A., as Trustee, Home
Equity Mortgage Loan Asset-Backed Trust, Series
SPMD 2001-A, Home Equity Mortgage Loan
Asset-Backed Certificates, Series SPMD 2001-A
[and the Subsequent Transfer Agreement dated as
of [_______ __], 2001, among IndyMac ABS, Inc.,
as Depositor, IndyMac Bank, F.S.B., as Seller,
and Bankers Trust Company of California, N.A.,
as Trustee]
--------------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement") [and the
above-captioned Subsequent Transfer Agreement], the undersigned, as Trustee,
hereby certifies that as to each [Initial][Subsequent] Mortgage Loan listed in
the Mortgage Loan Schedule (other than any [Initial][Subsequent] 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(f) of the Pooling and Servicing Agreement, with all intervening
endorsements showing a complete chain of endorsement from the originator to
the Seller.
(ii) The original recorded Mortgage.
(iii) A duly executed assignment of the Mortgage in the form provided in
Section 2.01(f) of the Pooling and Servicing Agreement; provided, however,
that it has received no assignment with respect to any Mortgage for which the
related Mortgaged Property is located in the Commonwealth of Puerto Rico, or,
if the Depositor has certified or the Trustee otherwise knows that the related
Mortgage has not been returned from the applicable recording office, a
H-1
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
[Initial][Subsequent] Mortgage Loan, and (b) the information set forth in
items (i), (ii), (iii), (iv), (vi), and (xi) of the definition of the
"Mortgage Loan Schedule" in Section 1.01 of the Pooling and Servicing
Agreement accurately reflects information set forth in the Mortgage File.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Trustee makes no representations as to:
(i) the validity, legality, sufficiency, enforceability or genuineness of any
of the documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness or suitability of any such [Initial][Subsequent]
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 interest of the party so endorsing,
as Noteholder or assignee thereof, in 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.
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.
as Trustee
By: _________________________________
Name:________________________________
Title:_______________________________
H-2
EXHIBIT I
TRANSFER AFFIDAVIT
IndyMac ABS, Inc.,
Home Equity Mortgage Loan Asset-Backed Trust, Series SPMD 2001-A
Home Equity Mortgage Loan Asset-Backed Certificates,
Series SPMD 2001-A
STATE OF )
) ss.:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of ____________________________, the
proposed Transferee of an Ownership Interest in a Class R Certificate
(the "Certificate") issued pursuant to the Pooling and Servicing Agreement,
(the "Agreement"), relating to the above-referenced Series, by and among
IndyMac ABS, Inc., as depositor (the "Depositor"), IndyMac Bank, F.S.B., as
seller and master servicer and Bankers Trust Company of California, N.A., as
Trustee. Capitalized terms used, but not defined herein or in Exhibit 1 ,
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. The Transferee has
no knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a tax
will be imposed on Transfers of the Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability
for the tax if the Transferee furnishes to such Person an affidavit that such
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
I-1
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 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 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 Section 5.02(c) of the
Agreement and the restrictions noted on the face of the Certificate. The
Transferee understands and agrees that any breach of any of the
representations included herein shall render the Transfer to the Transferee
contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any Person
to whom the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth as Exhibit J to the Agreement (a "Transferor Certificate") to
the effect that such Transferee has no actual knowledge that the Person to
which the Transfer is to be made is not a Permitted Transferee.
7. The Transferee does not have the intention to impede the assessment
or collection of any tax legally required to be paid with respect to the
Certificate.
8. The Transferee's taxpayer identification number is ----------------.
9. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
10. The Transferee is aware that the Certificate may be a "noneconomic
residual interest" within the meaning of 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. 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 investing plan assets of such a
plan, or (ii) 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 the purchase and holding of such Certificate are
covered under Sections I and III of PTCE 95-60.
I-2
* * *
IN WITNESS WHEREOF, the Transferee has caused this instrument
to be executed on its behalf, pursuant to authority of its Board of
Directors, by its duly authorized officer and its corporate seal to
be hereunto affixed, duly attested, this ____ day of _______________, 20__.
__________________________________
Print Name of Transferee
By: ______________________________
Name:
Title:
[Corporate Seal]
ATTEST:
------------------------------------
[Assistant] Secretary
Personally appeared before me the above-named ____________, known or
proved to me to be the same person who executed the foregoing instrument and
to be the ______________ of the Transferee, and acknowledged that he executed
the same as his free act and deed and the free act and deed of the Transferee.
Subscribed and sworn before me this ____ day of ________ , 20__.
_______________________________
NOTARY PUBLIC
My Commission expires the ____
day of __________, 20__
I-3
EXHIBIT 1
to EXHIBIT I
Certain Definitions
"Ownership Interest": As to any Certificate, any ownership interest in
the Certificate, including any interest in the Certificate as its Holder and
any other interest in it, 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 R Certificate, (iv) rural electric and telephone cooperatives described
in Code Section 1381(a)(2)(c), (v) a Person that is not a U.S. Person, and
(vi) any other Person so designated by the Trustee based upon an Opinion of
Counsel that the Transfer of an Ownership Interest in a Class 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" have the meanings 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.
"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; (v) a trust, if a
court within the
I-4
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; or (vi) to the extent provided in Treasury
regulations, certain trusts in existence on August 20, 1996 that are treated
as U.S. Persons before that date and that elect to continue to be treated as
U.S. Persons.
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 the
Residual Certificates 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 the
Residual Certificates 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 the Residual Certificates may be
registered on the Closing Date or thereafter transferred, and the
Trustee shall not register the Transfer of any Residual Certificates
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 void. If any purported transferee shall become a Holder of a
Residual Certificate in violation of this Section 5.02(c), then the last
preceding Permitted Transferee shall be restored to all rights as Holder
thereof retroactive to the date of registration of Transfer of such
Residual Certificate. The Trustee shall be under no liability to any
Person for any registration of Transfer of a Residual Certificate that
is in fact not permitted by Section 5.02(b) and this Section 5.02(c) or
for making any payments due on such Certificate to the Holder thereof or
taking any other action with respect to such Holder under this Agreement
so long as the Transfer was registered after receipt of the related
Transfer Affidavit, Transferor Certificate and either the Rule 144A
Letter or the Investment Letter. The Trustee shall be entitled but not
obligated to recover from any Holder of a Residual Certificate that was
in fact not a Permitted Transferee at the time it became a
I-6
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.
I-7
EXHIBIT J
FORM OF TRANSFEROR CERTIFICATE
__________, 20__
IndyMac ABS, Inc.
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Bankers Trust Company of California, N.A.
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000-0000
Attention: : [___________]
Series SPMD 2001-A
Re: IndyMac ABS, Inc. Home Equity Loan Asset-Backed
Trust, Series SPMD 2001-A, Home Equity Mortgage
Loan Asset-Backed Certificates, Series SPMD 2001-A,
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 Residual
Certificate, we have no knowledge the Transferee is not a Permitted
Transferee.
Very truly yours,
______________________________
Print Name of Transferor
By:___________________________
Authorized Officer
K-1
EXHIBIT L
FORM OF RULE 144A LETTER
____________, 20__
IndyMac ABS, Inc.
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Bankers Trust Company of California, N.A.
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000-0000
Attention: : [___________]
Series SPMD 2001-A
Re: Home Equity Mortgage Loan Asset-Backed Trust,
Series SPMD 2001-A Home Equity Mortgage Loan
Asset-Backed Certificates, Series SPMD 2001-A,
Class [_]
----------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we certify
that (a) we understand that the Certificates are not being registered under
the Securities Act of 1933, as amended (the "Act"), or any state securities
laws and are being transferred to us in a transaction that is exempt from the
registration requirements of the Act and any such laws, (b) we have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of investments in the Certificates, (c) we
have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) we are not an employee benefit plan that is
subject to the Employee Retirement Income Security Act of 1974, as amended, or
a plan or arrangement that is subject to Section 4975 of the Internal Revenue
Code of 1986, as amended, nor are we acting on behalf of any such plan or
arrangement nor using the assets of any such plan or arrangement to effect
such acquisition, (e) we have not, nor has anyone acting on our behalf
offered, transferred, pledged, sold or otherwise disposed of the Certificates,
any interest in the Certificates or any other similar security to, or
solicited any offer to buy or accept a transfer, pledge or other disposition
of the Certificates, any interest in the Certificates or any other similar
security from, or otherwise approached or negotiated with respect to the
Certificates, any interest in the Certificates or any other similar security
with, any person in any manner, or made any general solicitation by means of
general advertising or in any other manner, or taken any other action, that
would constitute a distribution of the Certificates under the Securities Act
or that would render the disposition of the Certificates a violation of
Section 5
L-1
of the Securities Act or require registration pursuant thereto, nor
will act, nor has authorized or will authorize any person to act, in such
manner with respect to the Certificates, (f) to the extent that the
Certificate transferred is a Class X Certificate, we are a bankruptcy-remote
entity and (g) we are a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act and have completed either of the
forms of certification to that effect attached hereto as Annex 1 or Annex 2.
We are aware that the sale to us is being made in reliance on Rule 144A. We
are acquiring the Certificates for our own account or for resale pursuant to
Rule 144A and further, understand that such Certificates may be resold,
pledged or transferred only (i) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (ii)
pursuant to another exemption from registration under the Securities Act.
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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 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)
_________________
/1/ Buyer must own 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 or
invest on a discretionary basis at least $10,000,000 in securities.
L-3
has an audited net worth of at least $25,000,000
as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
-- Broker-dealer. The Buyer is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
-- Insurance Company. The Buyer is an insurance
company whose primary and predominant business
activity is the writing of insurance or the
reinsuring of risks underwritten by insurance
companies and which is subject to supervision by
the insurance commissioner or a similar official or
agency of a State, territory or the District of
Columbia.
-- State or Local Plan. The Buyer is a plan established and
maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
-- ERISA Plan. The Buyer is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income
Security Act of 1974.
-- Investment Advisor. The Buyer is an investment advisor
registered under the Investment Advisors Act of 1940.
-- Small Business Investment Company. Buyer is a small business
investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958.
-- Business Development Company. Buyer is a business
development company as defined in Section 202(a)(22) of the
Investment Advisors Act of 1940.
3. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Buyer, (ii) securities that are part
of an unsold allotment to or subscription by the Buyer, if the Buyer is a
dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned
but subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of securities owned
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
L-4
owned by subsidiaries of the Buyer, but only if such subsidiaries are
consolidated with the Buyer in its financial statements prepared in accordance
with generally accepted accounting principles and if the investments of such
subsidiaries are managed under the Buyer's direction. However, such securities
were not included if the Buyer is a majority-owned, consolidated subsidiary of
another enterprise and the Buyer is not itself a reporting company under the
Securities Exchange Act of 1934, as amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the
Certificates are relying and will continue to rely on the statements made
herein because one or more sales to the Buyer may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the Buyer
will notify each of the parties to which this certification is made of any
changes in the information and conclusions herein. Until such notice is given,
the Buyer's purchase of the Certificates will constitute a reaffirmation of
this certification as of the date of such purchase. In addition, if the Buyer
is a bank or savings and loan is provided above, the Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after
they become available.
_________________________________
Print Name of Transferor
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, 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
L-6
notes and certificates of deposit, (iv) loan participations, (v) repurchase
agreements, (vi) securities owned but subject to a repurchase agreement and
(vii) currency, interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates are relying and will continue to rely on the statements made herein
because one or more sales to the Buyer will be in reliance on Rule 144A. In
addition, the Buyer will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, the undersigned will
notify the parties listed in the Rule 144A Transferee Certificate to which
this certification relates of any changes in the information and conclusions
herein. Until such notice is given, the Buyer's purchase of the Certificates
will constitute a reaffirmation of this certification by the undersigned as of
the date of such purchase.
Print Name of Buyer or Adviser
By: ______________________________
Name:
Title:
IF AN ADVISER:
___________________________________
Print Name of Buyer
Date: _____________________________
L-7
EXHIBIT M
REQUEST FOR RELEASE
(for Trustee)
IndyMac ABS, Inc.,
Home Equity Mortgage Loan Asset-Backed Trust, Series SPMD 2001-A
Home Equity Mortgage Loan Asset-Backed Certificates,
Series SPMD 2001-A
Loan Information
Name of Mortgagor
----------------------------------
Servicer
Loan No.:
----------------------------------
Trustee
Name:
----------------------------------
Address:
----------------------------------
----------------------------------
----------------------------------
----------------------------------
Trustee
Mortgage File No.:
----------------------------------
The undersigned Master Servicer hereby acknowledges that it has received
from Bankers Trust Company of California, N.A., as Trustee for the Holders of
Home Equity Mortgage Loan Asset-Backed Certificates, of the above-referenced
Series, the documents referred to below (the "Documents"). All capitalized
terms not otherwise defined in this Request for Release shall have the
meanings given them in the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement") relating to the above-referenced Series among the
Trustee, IndyMac Bank, F.S.B., as Seller and Master Servicer and IndyMac ABS,
Inc., as Depositor.
(__) Mortgage Note dated ____________, ____, 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
M-1
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
_____________.
(__) Other documents, including any amendments, assignments or other
assumptions of the Mortgage Note or Mortgage.
(--)
------------------------------------------------------------------
(--)
------------------------------------------------------------------
(--)
------------------------------------------------------------------
(--)
------------------------------------------------------------------
The undersigned Master Servicer hereby acknowledges and agrees as
follows:
(1) The Master Servicer shall hold and retain possession of the
Documents in trust for the benefit of the Trustee, solely for the
purposes provided in the Agreement.
(2) The Master Servicer shall not cause or knowingly permit the
Documents to become subject to, or encumbered by, any claim, liens,
security interest, charges, writs of attachment or other impositions nor
shall the Servicer assert or seek to assert any claims or rights of
setoff to or against the Documents or any proceeds thereof.
(3) The Master Servicer shall return each and every Document
previously requested from the Mortgage File to the Trustee when the need
therefor no longer exists, unless the Mortgage Loan relating to the
Documents has been liquidated and the proceeds thereof have been
remitted to the Certificate Account and except as expressly provided in
the Agreement.
M-2
(4) The Documents and any proceeds thereof, including any proceeds
of proceeds, coming into the possession or control of the Master
Servicer shall at all times be earmarked for the account of the Trustee,
and the Master Servicer shall keep the Documents and any proceeds
separate and distinct from all other property in the Master Servicer's
possession, custody or control.
INDYMAC BANK, F.S.B.
By: ______________________________
Its_______________________________
Date: ________________
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EXHIBIT N
REQUEST FOR RELEASE OF DOCUMENTS
To: Bankers Trust Company of California, N.A. Attn: [____________]
Re: The Pooling & Servicing Agreement dated _______
among IndyMac Bank, F.S.B., as Master Servicer,
Inc, IndyMac ABS, Inc. and Bankers Trust
Company of California, N.A. as Trustee
Ladies and Gentlemen:
In connection with the administration of the Mortgage Loans held by you
as Trustee for IndyMac ABS, Inc., we request the release of the Mortgage Loan
File for the Mortgage Loans 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.
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INDYMAC BANK, F.S.B. 000 Xxxxx Xxxx Xxx.
Xxxxxxxx XX 00000
By:______________________________
Name:
Title:
Date:___________________
TRUSTEE CONSENT TO RELEASE AND
ACKNOWLEDGEMENT OF RECEIPT
By:______________________________
Name:
Title:
Date:___________________
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EXHIBIT O
[RESERVED]
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EXHIBIT Q
FORM OF SUBSEQUENT TRANSFER AGREEMENT
Subsequent Transfer Agreement, dated as of March [__], 2001, among
IndyMac ABS, Inc., a Delaware corporation, as depositor (the "Depositor"),
IndyMac Bank, F.S.B., a federal savings bank ("IndyMac Bank"), in its capacity
as seller under the Pooling and Servicing Agreement referred to below (the
"Seller"), and Bankers Trust Company of California, N.A., as trustee (the
"Trustee").
WITNESSETH:
WHEREAS, the Depositor, IndyMac Bank (in its capacity as Seller and in
its capacity as Master Servicer) and the Trustee are parties to the pooling
and servicing agreement dated as of February 1, 2001 (the "Pooling and
Servicing Agreement") relating to the Home Equity Mortgage Loan Asset-Backed
Certificates, Series SPMD 2001-A; and
WHEREAS, as contemplated in the Pooling and Servicing Agreement, the
Seller desires to convey certain Subsequent Mortgage Loans to the Depositor,
and the Depositor desires to simultaneously convey the Subsequent Mortgage
Loans to the Trustee for the benefit of the Certificateholders;
NOW, THEREFORE, the parties hereto hereby agree as follows:
Section 1.01. Defined Terms.
Capitalized terms used herein that are not otherwise defined have the
meanings given to them in Pooling and Servicing Agreement.
"Agreement" means this Subsequent Transfer Agreement and all amendments
hereof and supplements hereto.
"Subsequent Mortgage Loans" means the Mortgage Loans identified on the
Mortgage Loan Schedule specified in Section 1.02.
"Subsequent Transfer Date" means, with respect to this Agreement, March
[__], 2000.
"Cut-off Date" means, with respect to each of the Subsequent Mortgage
Loans, the later of March 1, 2001 and its date of origination.
Section 1.02. Mortgage Loan Schedule.
Annexed hereto is a supplement to Schedule I to the Pooling and
Servicing Agreement listing the Subsequent Mortgage Loans to be conveyed by
the Seller to the Depositor and simultaneously by the Depositor to the Trustee
pursuant to the Pooling and Servicing Agreement and this Agreement on the
Subsequent Transfer Date.
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Section 1.03. Conveyance of Subsequent Mortgage Loans by the Seller.
Subject to the conditions set forth in Section 1.05 and
Section 1.06, in consideration of the Trustee's delivery to or upon the order
of the Seller of $________ (i.e., an amount not greater than the aggregate
Cut-off Date Principal Balance of the Subsequent Mortgage Loans), the Seller
does hereby sell, transfer, assign and otherwise convey to the Depositor,
without recourse (subject to the Seller's obligations hereunder) all of the
Seller's interest in the Subsequent Mortgage Loans, including all interest and
principal received or receivable by the Seller on or with respect to each
Subsequent Mortgage Loan after the related Cut-off Date and all interest and
principal payments on each Subsequent Mortgage Loan received before such
related Cut-off Date in respect of installments of interest and principal due
thereafter, but not including payments of principal and interest due and
payable on each Subsequent Mortgage Loan by such related Cut-off Date, and the
Depositor simultaneously does hereby sell, transfer, assign, set over and
otherwise convey to the Trustee for the benefit of the Certificateholders,
without recourse, all the interest of the Depositor in each Subsequent
Mortgage Loan, including all interest and principal received or receivable by
the Depositor on or with respect to each Subsequent Mortgage Loan after the
related Cut-off Date and all interest and principal payments on each
Subsequent Mortgage Loan received before such related Cut-off Date in respect
of installments of interest and principal due thereafter, but not including
payments of principal and interest due and payable on each Subsequent Mortgage
Loan by such related Cut-off Date.
Section 1.04. Allocation of the Amounts to be Released from the
Pre-Funding Accounts.
Of the $________ (i.e., an amount not greater than the aggregate Cut-off
Date Principal Balance of the Subsequent Mortgage Loans), released by the
Trustee pursuant to Section 1.03, the Trustee shall release $__________ (i.e.,
an amount not greater than the aggregate Cut-off Date Principal Balance of the
Subsequent Mortgage Loans transferred to Loan Group 1 pursuant to this
Agreement) from the Group 1 Pre-Funding Account.
Of the $________ (i.e., an amount not greater than the aggregate Cut-off
Date Principal Balance of the Subsequent Mortgage Loans), released by the
Trustee pursuant to Section 1.03, the Trustee shall release $__________ (i.e.,
an amount not greater than the aggregate Cut-off Date Principal Balance of the
Subsequent Mortgage Loans transferred to Loan Group 2 pursuant to this
Agreement) from the Group 2 Pre-Funding Account.
Section 1.05. Representations and Warranties of Seller.
The Seller does hereby reaffirm the representations and
warranties set forth in Section 2.03 and on Schedule II of the Pooling and
Servicing Agreement for the benefit of the Depositor and the Trustee as
purchasers hereunder are true with respect to the Subsequent Mortgage Loans.
Such representations and warranties shall survive the sale, transfer and
assignment of the Subsequent Mortgage Loans to the Depositor and the
simultaneous sale, transfer and assignment of such Subsequent Mortgage Loans
to the Trustee.
Section 1.06. Representations and Warranties of Depositor.
The Depositor does hereby reaffirm the representations and
warranties set forth in Section 2.04 of the Pooling and Servicing Agreement
for the benefit of the Trustee as purchaser hereunder are true with respect to
the Subsequent Mortgage Loans. Such representations and warranties shall
survive the sale, transfer and assignment of the Subsequent Mortgage Loans to
the Trustee.
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Section 1.07. Conditions Precedent.
The obligation of the Trustee to acquire the Subsequent Mortgage Loans
hereunder is subject to the satisfaction, by the Subsequent Transfer Date, of
the conditions precedent identified in Section 2.09(b).
The Trustee shall not be required to investigate or otherwise verify
satisfaction of the conditions listed above, but shall be entitled to
conclusively rely upon Opinions of Counsel and Officer's Certificates
confirming such fulfillment.
Section 1.08. Reaffirmation of Agreement.
All terms, conditions and provisions of the Pooling and
Servicing Agreement are hereby reaffirmed and incorporated by reference by the
Seller as to the Subsequent Mortgage Loans.
Section 1.09. Governing Law.
This Agreement shall be construed in accordance with the laws of the
State of New York and the obligations, rights and remedies of the parties
under this Agreement shall be determined in accordance with such laws;
provided, however, the immunities, authority and standard of care of the
Trustee shall be governed by the jurisdiction in which its Corporate Trust
Office is located.
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IN WITNESS WHEREOF, the Seller and the Trustee have caused this
Agreement to be duly executed and delivered by their respective duly
authorized officers as of the day and the year first above written.
INDYMAC BANK, F.S.B.
as Seller
By: __________________________
Name:
Title:
BANKERS TRUST COMPANY OF CALIFORNIA,
N.A.
not in its individual capacity,
but solely as Trustee
By:__________________________
Name:
Title:
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[Supplement to Mortgage Loan Schedule]
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