INDYMAC MBS, INC. Depositor INDYMAC BANK, F.S.B. Seller and Servicer DEUTSCHE BANK NATIONAL TRUST COMPANY Trustee, Swap Trustee and Supplemental Interest Trustee POOLING AND SERVICING AGREEMENT Dated as of May 1, 2007 INDYMAC INDX MORTGAGE LOAN TRUST...
Exhibit
99.1
Execution
Copy
INDYMAC
MBS, INC.
Depositor
INDYMAC
BANK,
F.S.B.
Seller
and Servicer
DEUTSCHE
BANK
NATIONAL
TRUST
COMPANY
Trustee,
Swap Trustee and Supplemental Interest Trustee
________________________________________
POOLING AND
SERVICING
AGREEMENT
Dated
as
of May 1, 2007
________________________________________
INDYMAC
INDX MORTGAGE
LOAN
TRUST
2007-FLX4
MORTGAGE
PASS-THROUGH
CERTIFICATES
Series
2007-FLX4
TABLE
OF CONTENTS
Page
ARTICLE
ONE DEFINITIONS
|
11
|
|
Section
1.01.
|
Definitions.
|
11
|
Section
1.02.
|
Rules
of Construction.
|
46
|
ARTICLE
TWO CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND
WARRANTIES
|
48
|
|
Section
2.01.
|
Conveyance
of Mortgage Loans.
|
48
|
Section
2.02.
|
Acceptance
by the Trustee of the Mortgage Loans.
|
51
|
Section
2.03.
|
Representations,
Warranties, and Covenants of the Seller and the Servicer.
|
53
|
Section
2.04.
|
Representations
and Warranties of the Depositor as to the Mortgage Loans.
|
55
|
Section
2.05.
|
Delivery
of Opinion of Counsel in Connection with Substitutions.
|
55
|
Section
2.06.
|
Execution
and Delivery of Certificates.
|
56
|
Section
2.07.
|
REMIC
Matters.
|
56
|
ARTICLE
THREE ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
|
57
|
|
Section
3.01.
|
Servicer
to Service Mortgage Loans.
|
57
|
Section
3.02.
|
[Reserved].
|
58
|
Section
3.03.
|
Rights
of the Depositor and the Trustee in Respect of the
Servicer.
|
58
|
Section
3.04.
|
[Reserved].
|
58
|
Section
3.05.
|
Trustee
to Act as Servicer.
|
58
|
Section
3.06.
|
Collection
of Mortgage Loan Payments; Certificate Account; Distribution Account;
Swap
Account; Credit Support Collateral Account; Supplemental Interest
Reserve
Fund.
|
58
|
Section
3.07.
|
Collection
of Taxes, Assessments and Similar Items; Escrow Accounts.
|
62
|
Section
3.08.
|
Access
to Certain Documentation and Information Regarding the Mortgage
Loans.
|
63
|
Section
3.09.
|
Permitted
Withdrawals from the Certificate Account, the Distribution Account
and the
Swap Account.
|
63
|
Section
3.10.
|
Maintenance
of Hazard Insurance; Maintenance of Primary Insurance
Policies.
|
65
|
Section
3.11.
|
Enforcement
of Due-On-Sale Clauses; Assumption Agreements.
|
66
|
Section
3.12.
|
Realization
Upon Defaulted Mortgage Loans.
|
67
|
Section
3.13.
|
Trustee
to Cooperate; Release of Mortgage Files.
|
69
|
Section
3.14.
|
Documents,
Records and Funds in Possession of the Servicer to be Held for the
Trustee.
|
70
|
Section
3.15.
|
Servicing
Compensation.
|
70
|
Section
3.16.
|
Access
to Certain Documentation.
|
71
|
Section
3.17.
|
Annual
Statement as to Compliance.
|
71
|
Section
3.18.
|
Errors
and Omissions Insurance; Fidelity Bonds.
|
71
|
Section
3.19.
|
The
Corridor Contract and the Swap Contract.
|
71
|
Section
3.20.
|
Notification
of Adjustments.
|
74
|
Section
3.21.
|
Prepayment
Charges.
|
74
|
Section
3.22.
|
Late
Payment Fees.
|
75
|
-i-
TABLE
OF CONTENTS
(Continued)
Page
ARTICLE
FOUR DISTRIBUTIONS AND ADVANCES BY THE SERVICER
|
76
|
|
Section
4.01.
|
Advances.
|
76
|
Section
4.02.
|
Priorities
of Distribution.
|
77
|
Section
4.03.
|
[Reserved].
|
83
|
Section
4.04.
|
Allocation
of Net Deferred Interest
|
83
|
Section
4.05.
|
Monthly
Statements to Certificateholders.
|
83
|
Section
4.06.
|
Carryover
Reserve Fund.
|
85
|
Section
4.07.
|
Determination
of Pass-Through Rates for LIBOR Certificates.
|
86
|
Section
4.08.
|
Supplemental
Interest Trust and Swap Trust.
|
87
|
ARTICLE
FIVE THE CERTIFICATES
|
89
|
|
Section
5.01.
|
The
Certificates.
|
89
|
Section
5.02.
|
Certificate
Register; Registration of Transfer and Exchange of
Certificates.
|
89
|
Section
5.03.
|
Mutilated,
Destroyed, Lost or Stolen Certificates.
|
94
|
Section
5.04.
|
Persons
Deemed Owners.
|
94
|
Section
5.05.
|
Access
to List of Certificateholders’ Names and Addresses.
|
94
|
Section
5.06.
|
Maintenance
of Office or Agency.
|
95
|
ARTICLE
SIX THE DEPOSITOR AND THE SERVICER
|
96
|
|
Section
6.01.
|
Respective
Liabilities of the Depositor and the Servicer.
|
96
|
Section
6.02.
|
Merger
or Consolidation of the Depositor or the Servicer.
|
96
|
Section
6.03.
|
Limitation
on Liability of the Depositor, the Seller, the Servicer, and
Others.
|
96
|
Section
6.04.
|
Limitation
on Resignation of the Servicer.
|
97
|
ARTICLE
SEVEN DEFAULT
|
98
|
|
Section
7.01.
|
Events
of Default.
|
98
|
Section
7.02.
|
Trustee
to Act; Appointment of Successor.
|
99
|
Section
7.03.
|
Notification
to Certificateholders.
|
100
|
ARTICLE
EIGHT CONCERNING THE TRUSTEE
|
102
|
|
Section
8.01.
|
Duties
of the Trustee.
|
102
|
Section
8.02.
|
Certain
Matters Affecting the Trustee.
|
102
|
Section
8.03.
|
Trustee
Not Liable for Certificates or Mortgage Loans.
|
104
|
Section
8.04.
|
Trustee
May Own Certificates.
|
104
|
Section
8.05.
|
Trustee’s
Fees and Expenses.
|
104
|
Section
8.06.
|
Eligibility
Requirements for the Trustee.
|
105
|
Section
8.07.
|
Resignation
and Removal of the Trustee.
|
105
|
Section
8.08.
|
Successor
Trustee.
|
106
|
Section
8.09.
|
Merger
or Consolidation of the Trustee.
|
107
|
Section
8.10.
|
Appointment
of Co-Trustee or Separate Trustee.
|
107
|
Section
8.11.
|
Tax
Matters.
|
108
|
-ii-
TABLE
OF CONTENTS
(Continued)
Page
ARTICLE
NINE TERMINATION
|
112
|
|
Section
9.01.
|
Termination
upon Liquidation or Purchase of the Mortgage Loans.
|
112
|
Section
9.02.
|
Final
Distribution on the Certificates.
|
113
|
Section
9.03.
|
Additional
Termination Requirements.
|
114
|
Section
9.04.
|
Termination
of the Supplemental Interest Trust; Termination of the Swap
Trust.
|
114
|
ARTICLE
TEN MISCELLANEOUS PROVISIONS
|
115
|
|
Section
10.01.
|
Amendment.
|
115
|
Section
10.02.
|
Recordation
of Agreement; Counterparts.
|
116
|
Section
10.03.
|
Governing
Law.
|
117
|
Section
10.04.
|
Intention
of Parties.
|
117
|
Section
10.05.
|
Notices.
|
117
|
Section
10.06.
|
Severability
of Provisions.
|
118
|
Section
10.07.
|
Assignment
|
118
|
Section
10.08.
|
Limitation
on Rights of Certificateholders.
|
118
|
Section
10.09.
|
Inspection
and Audit Rights.
|
119
|
Section
10.10.
|
Certificates
Nonassessable and Fully Paid.
|
119
|
Section
10.11.
|
Official
Record.
|
120
|
Section
10.12.
|
Protection
of Assets.
|
120
|
Section
10.13.
|
Qualifying
Special Purpose Entity.
|
120
|
ARTICLE
ELEVEN EXCHANGE ACT REPORTING
|
121
|
|
Section
11.01.
|
Filing
Obligations.
|
121
|
Section
11.02.
|
Form
10-D Filings.
|
121
|
Section
11.03.
|
Form
8-K Filings.
|
122
|
Section
11.04.
|
Form
10-K Filings.
|
122
|
Section
11.05.
|
Xxxxxxxx-Xxxxx
Certification.
|
125
|
Section
11.06.
|
Form
15 Filing.
|
125
|
Section
11.07.
|
Report
on Assessment of Compliance and Attestation.
|
125
|
Section
11.08.
|
Use
of Subcontractors.
|
126
|
Section
11.09.
|
Amendments.
|
127
|
-iii-
TABLE
OF CONTENTS
(Continued)
SCHEDULES
|
||
Schedule
I:
|
Mortgage
Loan Schedule
|
S-I-1
|
Schedule
II:
|
Representations
and Warranties of the Seller/Servicer
|
S-II-1
|
Schedule
III:
|
Representations
and Warranties as to the Mortgage Loans
|
S-III-1
|
Schedule
IV:
|
Form
of Monthly Report
|
S-IV-1
|
EXHIBITS
|
||
Exhibit
A:
|
Form
of Senior Certificate (other than a Notional Amount
Certificate)
|
A-1
|
Exhibit
B:
|
Form
of Subordinated Certificate
|
B-1
|
Exhibit
C:
|
Form
of Class A-R Certificate
|
C-1
|
Exhibit
D-1:
|
Form
of Notional Amount Certificate
|
D-1
|
Exhibit
D-2:
|
Form
of Class C Certificate
|
D-2
|
Exhibit
E:
|
Form
of Reverse of Certificates
|
E-1
|
Exhibit
F-1:
|
Form
of Class P Certificate
|
F-1
|
Exhibit
F-2:
|
Form
of Class L Certificate
|
F-2
|
Exhibit
G-1:
|
Form
of Initial Certification of Trustee
|
G-1-1
|
Exhibit
G-2:
|
[Reserved]
|
G-2-1
|
Exhibit
G-3:
|
Form
of Delay Delivery Certification
|
G-3-1
|
Exhibit
G-4:
|
[Reserved]
|
G-4-1
|
Exhibit
H-1:
|
Form
of Final Certification of Trustee
|
X-0-0
|
Xxxxxxx
X-0:
|
[Reserved]
|
H-2-1
|
Exhibit
I:
|
Form
of Transfer Affidavit
|
I-1
|
Exhibit
J:
|
Form
of Transferor Certificate
|
J-1
|
Exhibit
K:
|
Form
of Investment Letter (Non-Rule 144A)
|
K-1
|
Exhibit
L:
|
Form
of Rule 000X Xxxxxx
|
X-0
|
Xxxxxxx
M:
|
Form
of Request for Release (for Trustee)
|
M-1
|
Exhibit
N:
|
Request
for Release of Documents
|
N-1
|
Exhibit
O-1:
|
Form
of Certification to Be Provided By The Depositor With Form
10-K
|
O-1
|
Exhibit
O-2
|
Trustee’s
Officer’s Certificate
|
|
Exhibit
P-1:
|
Form
of Corridor Contract
|
P-1-1
|
Exhibit
P-2:
|
Form
of Swap Contract
|
P-2-1
|
Exhibit
Q
|
Form
10-D, Form 8-K and Form 10-K Reporting Responsibility
|
Q-1
|
Exhibit
R-1
|
Form
of Performance Certification (Trustee)
|
R-1
|
Exhibit
S
|
Form
of Servicing Criteria to be Addressed in Assessment of Compliance
Statement
|
S-1
|
Exhibit
T
|
Form
of List of Item 1119 Parties
|
T-1
|
Exhibit
U
|
Form
of Xxxxxxxx-Xxxxx Certification
|
U-1
|
-iv-
THIS
POOLING
AND
SERVICING
AGREEMENT,
dated as of May 1, 2007, among INDYMAC
MBS, INC.,
a Delaware corporation, as depositor (the
“Depositor”), IndyMac Bank, F.S.B.
(“IndyMac”), a federal savings bank, as seller (in
that capacity, the “Seller”) and as servicer (in that
capacity, the “Servicer”), and Deutsche Bank National
Trust Company, a national banking association, as trustee (in that capacity,
the
“Trustee”), as swap trustee (in that capacity, the
“SwapTrustee”)
and as
supplemental interest trustee (in that capacity, the “Supplemental
Interest Trustee”).
W
i t n e s s e t h T h a t
In
consideration of the mutual agreements set forth in this Agreement, the parties
agree as follows:
PRELIMINARY
STATEMENT
The
Depositor is the owner of the Trust Fund that is hereby conveyed to the Trustee
in return for the Certificates. As provided in this Agreement, the
Trustee shall elect that the Trust Fund (exclusive of the Swap Contract, the
Swap Account, the Corridor Contract, the Supplemental Interest Reserve Fund,
the
Carryover Reserve Fund and any amounts in respect of waived Prepayment Charges
paid by the Servicer to the Class P Certificates pursuant to Section 3.21(b)
and
any amounts in respect of waived Late Payment Fees paid by the Servicer to
the
Class L Certificates pursuant to Section 3.22(b)) be treated for federal income
tax purposes as comprising three real estate mortgage investment conduits (each,
a “REMIC” or, in the alternative, “REMIC
1, “REMIC 2” and the “Master
REMIC”). Each Certificate, other than the Class A-R and
Class L Certificates, will represent ownership of one or more regular interests
in the Master REMIC for purposes of the REMIC Provisions. The Class
A-R Certificates represent ownership of the classes of residual interests in
each REMIC described herein. The Master REMIC will hold as assets the
several classes of uncertificated REMIC 2 Interests (other than the Class R-2
Interest). REMIC 2 will hold as assets the several classes of
uncertificated REMIC 1 Interests (other than the Class R-1
Interest). REMIC 1 will hold as assets all property of the Trust Fund
other than the Swap Contract, the Swap Account the Corridor Contract, the
Supplemental Interest Reserve Fund and the Carryover Reserve
Fund. Each REMIC 2 Interest (other than the Class R-2 Interest) is
hereby designated as a regular interest in REMIC 2. Each REMIC 1
Interest (other than the Class R-1 Interest) is hereby designated as a regular
interest in REMIC 1. The latest possible maturity date of all REMIC
regular interests created in this Agreement shall be the Latest Possible
Maturity Date. All amounts in respect of waived Prepayment Charges
paid by the Servicer to the Class P Certificates pursuant to Section 3.21(b)
will be treated as paid directly by the Servicer to the Class P Certificates
and
not as paid by or through any REMIC created under this Agreement. All
amounts in respect of waived Late Payment Fees paid by the Servicer to the
Class
L Certificates will be treated as paid directly by the Servicer to the Class
L
Certificates pursuant to Section 3.22(b) and not as paid by or through any
REMIC
created under this Agreement or by or through the Grantor Trust described in
this Agreement.
REMIC
1
The
REMIC 1 Interests will have the
Initial Principal Balances and Pass-Through Rates as set forth in the following
table:
REMIC
1
Interests
|
Initial
Principal
Balance(1)
|
Pass-Through
Rate
|
Class
1-1A
|
(1)
|
(2)
|
Class
1-1B
|
(1)
|
(3)
|
Class
1-2A
|
(1)
|
(2)
|
Class
1-2B
|
(1)
|
(3)
|
Class
1-3A
|
(1)
|
(2)
|
Class
1-3B
|
(1)
|
(3)
|
Class
1-4A
|
(1)
|
(2)
|
Class
1-4B
|
(1)
|
(3)
|
Class
1-5A
|
(1)
|
(2)
|
Class
1-5B
|
(1)
|
(3)
|
2
REMIC
1
Interests
|
Initial
Principal
Balance(1)
|
Pass-Through
Rate
|
Class
1-6A
|
(1)
|
(2)
|
Class
1-6B
|
(1)
|
(3)
|
Class
1-7A
|
(1)
|
(2)
|
Class
1-7B
|
(1)
|
(3)
|
Class
1-8A
|
(1)
|
(2)
|
Class
1-8B
|
(1)
|
(3)
|
Class
1-9A
|
(1)
|
(2)
|
Class
1-9B
|
(1)
|
(3)
|
Class
1-10A
|
(1)
|
(2)
|
Class
1-10B
|
(1)
|
(3)
|
Class
1-11A
|
(1)
|
(2)
|
Class
1-11B
|
(1)
|
(3)
|
Class
1-12A
|
(1)
|
(2)
|
Class
1-12B
|
(1)
|
(3)
|
Class
1-13A
|
(1)
|
(2)
|
Class
1-13B
|
(1)
|
(3)
|
Class
1-14A
|
(1)
|
(2)
|
Class
1-14B
|
(1)
|
(3)
|
Class
1-15A
|
(1)
|
(2)
|
Class
1-15B
|
(1)
|
(3)
|
Class
1-16A
|
(1)
|
(2)
|
Class
1-16B
|
(1)
|
(3)
|
Class
1-17A
|
(1)
|
(2)
|
Class
1-17B
|
(1)
|
(3)
|
Class
1-18A
|
(1)
|
(2)
|
Class
1-18B
|
(1)
|
(3)
|
Class
1-19A
|
(1)
|
(2)
|
Class
1-19B
|
(1)
|
(3)
|
Class
1-20A
|
(1)
|
(2)
|
Class
1-20B
|
(1)
|
(3)
|
Class
1-21A
|
(1)
|
(2)
|
Class
1-21B
|
(1)
|
(3)
|
Class
1-22A
|
(1)
|
(2)
|
Class
1-22B
|
(1)
|
(3)
|
Class
1-23A
|
(1)
|
(2)
|
Class
1-23B
|
(1)
|
(3)
|
Class
1-24A
|
(1)
|
(2)
|
Class
1-24B
|
(1)
|
(3)
|
Class
1-25A
|
(1)
|
(2)
|
Class
1-25B
|
(1)
|
(3)
|
Class
1-26A
|
(1)
|
(2)
|
Class
1-26B
|
(1)
|
(3)
|
Class
1-27A
|
(1)
|
(2)
|
Class
1-27B
|
(1)
|
(3)
|
3
REMIC
1
Interests
|
Initial
Principal
Balance(1)
|
Pass-Through
Rate
|
Class
1-28A
|
(1)
|
(2)
|
Class
1-28B
|
(1)
|
(3)
|
Class
1-29A
|
(1)
|
(2)
|
Class
1-29B
|
(1)
|
(3)
|
Class
1-30A
|
(1)
|
(2)
|
Class
1-30B
|
(1)
|
(3)
|
Class
1-31A
|
(1)
|
(2)
|
Class
1-31B
|
(1)
|
(3)
|
Class
1-32A
|
(1)
|
(2)
|
Class
1-32B
|
(1)
|
(3)
|
Class
1-33A
|
(1)
|
(2)
|
Class
1-33B
|
(1)
|
(3)
|
Class
1-34A
|
(1)
|
(2)
|
Class
1-34B
|
(1)
|
(3)
|
Class
1-35A
|
(1)
|
(2)
|
Class
1-35B
|
(1)
|
(3)
|
Class
1-36A
|
(1)
|
(2)
|
Class
1-36B
|
(1)
|
(3)
|
Class
1-37A
|
(1)
|
(2)
|
Class
1-37B
|
(1)
|
(3)
|
Class
1-38A
|
(1)
|
(2)
|
Class
1-38B
|
(1)
|
(3)
|
Class
1-39A
|
(1)
|
(2)
|
Class
1-39B
|
(1)
|
(3)
|
Class
1-40A
|
(1)
|
(2)
|
Class
1-40B
|
(1)
|
(3)
|
Class
1-41A
|
(1)
|
(2)
|
Class
1-41B
|
(1)
|
(3)
|
Class
1-42A
|
(1)
|
(2)
|
Class
1-42B
|
(1)
|
(3)
|
Class
1-43A
|
(1)
|
(2)
|
Class
1-43B
|
(1)
|
(3)
|
Class
1-44A
|
(1)
|
(2)
|
Class
1-44B
|
(1)
|
(3)
|
Class
1-45A
|
(1)
|
(2)
|
Class
1-45B
|
(1)
|
(3)
|
Class
1-46A
|
(1)
|
(2)
|
Class
1-46B
|
(1)
|
(3)
|
Class
1-47A
|
(1)
|
(2)
|
Class
1-47B
|
(1)
|
(3)
|
Class
1-48A
|
(1)
|
(2)
|
Class
1-48B
|
(1)
|
(3)
|
Class
1-49A
|
(1)
|
(2)
|
Class
1-49B
|
(1)
|
(3)
|
4
REMIC
1
Interests
|
Initial
Principal
Balance(1)
|
Pass-Through
Rate
|
Class
1-50A
|
(1)
|
(2)
|
Class
1-50B
|
(1)
|
(3)
|
Class
1-51A
|
(1)
|
(2)
|
Class
1-51B
|
(1)
|
(3)
|
Class
1-52A
|
(1)
|
(2)
|
Class
1-52B
|
(1)
|
(3)
|
Class
1-53A
|
(1)
|
(2)
|
Class
1-53B
|
(1)
|
(3)
|
Class
1-54A
|
(1)
|
(2)
|
Class
1-54B
|
(1)
|
(3)
|
Class
1-55A
|
(1)
|
(2)
|
Class
1-55B
|
(1)
|
(3)
|
Class
1-56A
|
(1)
|
(2)
|
Class
1-56B
|
(1)
|
(3)
|
Class
1-57A
|
(1)
|
(2)
|
Class
1-57B
|
(1)
|
(3)
|
Class
1-58A
|
(1)
|
(2)
|
Class
1-58B
|
(1)
|
(3)
|
Class
1-59A
|
(1)
|
(2)
|
Class
1-59B
|
(1)
|
(3)
|
Class
1-60A
|
(1)
|
(2)
|
Class
1-60B
|
(1)
|
(3)
|
Class
1-Support
|
(1),
(4)
|
(4)
|
Class
1-$100
|
$100(5)
|
(5)
|
Class
R-1
|
(6)
|
(6)
|
|
__________________
|
(1)
|
Each
such Class, other than the Class 1-Support Interest, will have an
initial
principal balance equal to the product of: (i) 50% and (ii) the excess
of
(a) the Swap Contract Notional Balance for the Distribution Date
whose
ordinal number (e.g., first, second, third) equals the cardinal number
(x.x. -0, -0, -0) of the designated Class, over (b) the Swap Contract
Notional Balance for the subsequent Distribution
Date. Scheduled principal, prepayments and Realized Losses will
be allocated first, to the Class 1-Support Interest and second, among
the
other Classes designated “1-”, first, sequentially to the Class having the
lowest cardinal number following such designation, in each case until
reduced to zero, and second, among each class having the same cardinal
number pro rata between each such
class.
|
(2)
|
Prior
to the Distribution Date in June 2012, a rate equal to the product
of: (i)
2 and (ii) the excess of (a) the Weighted Average Adjusted Net Mortgage
Rate of the Mortgage Loans over (b) the Fixed Rate (as defined in
the Swap
Contract). On and after the Distribution Date in June 2012 a
rate equal to the Weighted Average Adjusted Net Mortgage Rate of
the
Mortgage Loans.
|
5
(3)
|
Prior
to the Distribution Date in June 2012, a rate equal to the lesser
of (i)
twice the Fixed Rate (as defined in the Swap Contract) and (ii) twice
the
Weighted Average Adjusted Net Mortgage Rate of the Mortgage
Loans. On and after the Distribution Date in June 2012, a rate
equal to the Weighted Average Adjusted Net Mortgage Rate of the Mortgage
Loans.
|
(4)
|
On
each Distribution Date, following the allocation of Principal Remittance
Amounts and Realized Losses, the principal balance in respect of
the Class
1-Support Interest will equal the excess, if any, of the principal
balance
of the Mortgage Loans over the principal balance in respect of the
remaining REMIC 1 Interests. On each Distribution Date, a rate
equal to the Weighted Average Adjusted Net Mortgage Rate of the Mortgage
Loans.
|
(5)
|
On
each Distribution Date, following the allocation of Principal Remittance
Amounts and Realized Losses, the principal balance in respect of
the Class
1-$100 will equal the Class Certificate Balance in respect of the
Class
A-R Certificates and will not bear
interest.
|
(6)
|
The
Class R-1 Interest is the sole class of residual interest in REMIC
1. It has no principal balance and pays no principal or
interest.
|
REMIC
2
The
REMIC 2 Interests will have the
Initial Principal Balances and Pass-Through Rates as set forth in the following
table:
REMIC
2 Interests
|
Principal
Balances
|
Pass-
Through
Rate
|
Corresponding
Certificates
Classes
|
Class
2-1-A-1
|
(1)
|
(2)
|
Class
1-A-1
|
Class
2-1-A-2
|
(1)
|
(2)
|
Class
1-A-2
|
Class
2-2-A-1
|
(1)
|
(2)
|
Class
2-A-1
|
Class
2-2-A-2
|
(1)
|
(2)
|
Class
2-A-2
|
Class
2-2-A-3
|
(1)
|
(2)
|
Class
2-A-3
|
Class
2-M-1
|
(1)
|
(2)
|
Class
M-1
|
Class
2-M-2
|
(1)
|
(2)
|
Class
M-2
|
Class
2-M-3
|
(1)
|
(2)
|
Class
M-3
|
Class
2-M-4
|
(1)
|
(2)
|
Class
M-4
|
Class
2-M-5
|
(1)
|
(2)
|
Class
M-5
|
Class
2-M-6
|
(1)
|
(2)
|
Class
M-6
|
Class 2-Accrual
|
(1)
|
(2)
|
N/A
|
Class
2-Swap IO
|
(1)
|
(3)
|
N/A
|
Class 2-$100
|
$100(4)
|
(4)
|
N/A
|
Class R-2
|
(5)
|
(5)
|
N/A
|
________________
(1)
|
On
each Distribution Date, Principal Remittance Amounts and Realized
Losses
will be allocated to the REMIC 2 Interests in such a manner that,
following such allocations: (i) the principal balances of the
REMIC 2 Interests (other than the Class 2-Accrual, Class 2-Swap IO,
Class
2-$100 and Class R-2 Interests) will equal 50% of the Certificate
Balance
of their Corresponding Certificates for such Distribution Date, (ii)
the
Class 2-Accrual Interest will have a principal balance equal to 50%
of the
aggregate Stated Principal Balance of the Mortgage Loans plus 50%
of the
Overcollateralized Amount. For purposes of clauses (i) and (ii)
in the immediately preceding sentence, the principal balances of
the
Corresponding Certificates will be adjusted as if any excess of LIBOR
plus
the related Pass-Through Margin subject to a cap equal to the REMIC
Cap
over the Available Funds Rate for such Class of Certificates and
any
Distribution Date, attributable to the allocation of Net Deferred
Interest
to such Class, were treated as Deferred Interest that is added to
the
Certificate Balances of such
Certificates.
|
6
(2)
|
The
Pass-Through Rate will equal the weighted average of the Pass-Through
Rates of the REMIC 1 Interests treating each “B” interest as capped at a
rate equal to the product of (i) 2 and (ii) LIBOR on each Distribution
Date whose cardinal number preceding such designation (e.g., -0,
-0, -0)
is not exceeded by the ordinal number of the Distribution Date following
the Closing Date (e.g., first, second, third) for such Distribution
Date
(the “REMIC Cap”).
|
(3)
|
For
each Distribution Date, the REMIC 2-Swap IO shall be entitled to
receive
from each “B” interest whose cardinal number preceding such designation
(e.g., -0, -0, -0) is not exceeded by the ordinal number of the
Distribution Date following the Closing Date (e.g., first, second,
third)
for such Distribution Date the interest accruing on such Interest
in
excess of an amount of interest accruing on such Interest’s balance at a
rate equal to the product of: (i) 2 and (ii) the excess of (x) the
lesser
of (1) the Fixed Rate (as defined in the Swap Contract) and (2) the
Weighted Average Adjusted Net Mortgage Rate of the Mortgage Loans,
over
(y) LIBOR.
|
(4)
|
On
each Distribution Date, following the allocation of Principal Amounts
and
Realized Losses, the principal balance in respect of the Class 2-$100
will
have the principal balance in respect of the Class A-R Certificates
and
will not bear interest.
|
(5)
|
The
Class R-2 Interest is the sole class of residual interest in REMIC
2. It has no principal balance and pays no principal or
interest.
|
The
Master REMIC
The
following table sets forth the Class Designation, Initial Class Certificate
Balance, Pass-Through Rate, Minimum Denominations and Integral Multiples in
excess thereof in respect of the Certificates, each of which (other than the
Class A-R and the Class L Certificates) is hereby designated a regular interest
in the Master REMIC, in which such Classes shall be issuable (except that one
Certificate of each Class of Certificates may be issued in a different
amount):
7
Class
Designation
|
Initial
Class
Certificate
Balance
|
Pass-Through
Rate
|
Initial
Pass-Through
Rate
|
Minimum
Denomination
|
Integral
Multiples in
Excess
of Minimum
|
Class
1-A-1
|
$127,861,000
|
Floating
(1)
|
5.520%
|
$25,000
|
$1,000
|
Class
1-A-2
|
$31,965,000
|
Floating
(1)
|
5.570%
|
$25,000
|
$1,000
|
Class
2-A-1
|
$194,257,000
|
Floating
(1)
|
5.500%
|
$25,000
|
$1,000
|
Class
2-A-2
|
$80,939,000
|
Floating
(1)
|
5.570%
|
$25,000
|
$1,000
|
Class
2-A-3
|
$48,563,000
|
Floating
(1)
|
5.620%
|
$25,000
|
$1,000
|
Class
A-R
|
$100
|
N/A
|
N/A
|
$100
|
N/A
|
Class
M-1
|
$5,095,000
|
Floating
(1)
|
5.820%
|
$100,000
|
$1,000
|
Class
M-2
|
$3,312,000
|
Floating
(1)
|
5.870%
|
$100,000
|
$1,000
|
Class
M-3
|
$2,802,000
|
Floating
(1)
|
6.070%
|
$100,000
|
$1,000
|
Class
M-4
|
$2,547,000
|
Floating
(1)
|
6.320%
|
$100,000
|
$1,000
|
Class
M-5
|
$2,547,000
|
Floating
(1)
|
6.320%
|
$100,000
|
$1,000
|
Class
M-6
|
$1,783,000
|
Floating
(1)
|
6.320%
|
$100,000
|
$1,000
|
Class
M-7
|
$1,783,000
|
Floating
(1)
|
6.320%
|
$100,000
|
$1,000
|
Class
M-8
|
$1,783,000
|
Floating
(1)
|
6.320%
|
$100,000
|
$1,000
|
Class
M-9
|
$1,783,000
|
Floating
(1)
|
6.320%
|
$100,000
|
$1,000
|
Class C
|
N/A
|
(2)
|
N/A
|
N/A
|
N/A
|
Class P
|
N/A
|
(3)
|
N/A
|
N/A
|
N/A
|
Class
L
|
N/A
|
N/A(4)
|
(4)
|
(4)
|
(4)
|
(1) The
Pass-Through Rate for this Class of Certificates for any Interest Accrual Period
for any Distribution Date will be a per annum rate equal to the lesser of (i)
LIBOR for that Distribution Date plus the Pass-Through Margin for that Class
and
that Interest Accrual Period and (ii) the related Available Funds
Rate for that Distribution Date. Solely for federal income tax
purposes: (i) the Certificate Balances of each Class of Certificates will be
adjusted as if any excess of LIBOR plus the related Pass-Through Margin subject
to a cap equal to the REMIC Cap over the related Available Funds Rate for such
Class of Certificates and any Distribution Date, attributable to the allocation
of Net Deferred Interest to such Class, were treated as Deferred Interest that
is added to the Certificate Balances of such Certificates, and (ii) all monies
received by the Senior and Subordinated Certificates in excess of the REMIC
Cap
will be treated as a paid pursuant to a limited recourse interest rate cap
contract as provided in Section 8.11.
(2) For
federal income tax purposes, the Class C Interests will represent three classes
of regular interests issued by the Master REMIC, (i) a class that does not
accrue interest and has a principal balance equal to the Overcollateralized
Amount as of the Closing Date, (ii) a class that is entitled to receive all
interest accruals in respect of the Class 2-Swap IO Interest, and (iii) a class
that has a notional balance equal to the sum of the principal balances of the
REMIC 2 Regular Interests (excluding the Class R-2, Class 2-$100 and Class
2-Swap IO Interests), on the immediately preceding Distribution Date, and has
a
pass through rate equal to the excess of: (a) the REMIC Cap over (b) the product
of 2 and the weighted average of the pass through rates in respect of such
Classes of REMIC 2 Interests, subjecting the Class 2-Accrual Interest to a
cap
equal to zero, and the other such Classes of Certificates to a cap equal to
the
pass through rate in respect of their Corresponding Certificates, calculated
by
substituting the REMIC Cap for the Available Funds Rate.
(3) The
Class P Certificates will not be entitled to any interest, but will be entitled
to 100% of any Prepayment Charges collected on the Mortgage
Loans. The Class P Certificates are issuable as a single
certificate.
8
The
foregoing REMIC structure is intended to cause all of the cash from the Mortgage
Loans to flow through to the Master REMIC as cash flow on a REMIC regular
interest, without creating any shortfall—actual or potential (other than for
credit losses) to any REMIC regular interest.
For
any
purpose for which the Pass-Through Rates (other than in the Master REMIC) are
calculated, the interest rate on the Mortgage Loans shall be appropriately
adjusted to account for the difference between the monthly day count convention
of the Mortgage Loans and the monthly day count convention of the regular
interests issued by each of the REMICs. For purposes of calculating
the Pass-Through Rates for each of the interests issued by each REMIC (other
than the Master REMIC) created under this Agreement such rates shall be adjusted
to equal a monthly day count convention based on a 30 day month for each Due
Period and a 360-day year so that the Mortgage Loans and all regular interests
will be using the same monthly day count convention.
(4) The
Class L Certificates will not bear interest but will be entitled to 100% of
any
Late Payment Fees collected on the Mortgage Loans. For federal income
tax purposes, the Trustee will treat the Late Payment Fees as beneficially
owned
by the Holders of the Class L Certificates and shall treat such portion of
the
Trust Fund as an interest in a “trust” within the meaning of Treasury
Regulations section 301.7701-4(a) (the “Grantor
Trust”). The Class L Certificates are issuable as a
single certificate.
Set
forth
below are designations of Classes of Certificates to the categories used in
this
Agreement:
Accretion
Directed Certificates
None.
Accrual
Certificates
None.
Book-Entry
Certificates
All
Classes of Certificates other than the Physical Certificates.
COFI
Certificates
None.
Components
None.
Component
Certificates
None.
Delay
Certificates
None.
ERISA-Restricted
Certificates
The
Private Certificates and Residual Certificates; and Certificates of any Class
that does not or no longer has a rating of BBB- or its equivalent, or better,
from at least one Rating Agency.
Group
1
Senior Certificates
Class
1-A-1, Class 1-A-2 and Class A-R Certificates.
Group
2
Senior Certificates
Class
2-A-1, Class 2-A-2 and Class 2-A-3 Certificates.
LIBOR
Certificates
The
Senior Certificates (other than the Class A-R Certificates) and Subordinated
Certificates.
Non-Delay
Certificates
All
LIBOR
Certificates.
Notional
Amount Certificates
None.
Notional
Amount Components
None.
Offered
Certificates
All
Classes of Certificates other than the Private Certificates.
Physical
Certificates
Class
A-R
Certificates and Private Certificates.
Planned
Principal Classes
None.
9
Principal
Only Certificates
None.
Principal
Only Components
None.
Private
Certificates
Class
L,
Class P and Class C Certificates.
Rating
Agencies
Xxxxx’x
and S&P.
Regular
Certificates
All
Classes of Certificates other than the Class A-R Certificates.
Residual
Certificates
Class
A-R
Certificates.
Retained
Certificates
None.
Senior
Certificates
The
Group
1 Senior Certificates and the Group 2
Senior Certificates.
Senior
Certificate Group
The
Group
1 Senior Certificates or the Group 2 Senior Certificates.
Subordinated
Certificates
Class
M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class M-7, Class
M-8
and Class M-9 Certificates.
Targeted
Principal Classes
None.
Targeted
Principal Component
None.
With
respect to any of the foregoing designations as to which the corresponding
reference is “None,” all defined terms and provisions in this Agreement relating
solely to such designations shall be of no force or effect, and any calculations
in this Agreement incorporating references to such designations shall be
interpreted without reference to such designations and
amounts. Defined terms and provisions in this Agreement relating to
statistical rating agencies not designated above as Rating Agencies shall be
of
no force or effect.
10
Article
One
DEFINITIONS
Section
1.01. Definitions.
Unless
the context requires a different meaning, capitalized terms are used in this
Agreement as defined below.
Accretion
Directed Certificates: As specified in the Preliminary
Statement.
Accretion
Direction Rule: Not applicable.
Accrual
Amount: Not applicable.
Accrual
Certificates: As specified in the Preliminary
Statement.
Accrual
Termination Date: Not applicable.
Additional
Designated Information: As defined in
Section 11.02.
Adjusted
Mortgage Rate: As to each Mortgage Loan and at any
time, the per annum rate equal to the Mortgage Rate less the Servicing Fee
Rate.
Adjusted
Net Mortgage Rate: As to each Mortgage Loan and any
Distribution Date, the per annum rate equal to the Mortgage Rate of that
Mortgage Loan (as of the Due Date in the month preceding the month in which
such
Distribution Date occurs) less the Expense Fee Rate for that Mortgage
Loan.
Adjustment
Date: A date specified in each Mortgage Note as a date
on which the Mortgage Rate on the related Mortgage Loan is subject to
adjustment.
Advance: As
to a Loan Group, the payment required to be made by the Servicer with respect
to
any Distribution Date pursuant to Section 4.01, the amount of any such
payment being equal to the aggregate of payments of principal and interest
(net
of the Servicing Fee) on the Mortgage Loans in such Loan Group that were due
during the related Due Period and not received as of the close of business
on
the related Determination Date, together with an amount equivalent to interest
on each REO Property, net of any net income from such REO Property, less
the aggregate amount of any such delinquent payments that the Servicer has
determined would constitute a Nonrecoverable Advance if advanced.
Advance
Notice: As defined in
Section 4.01(b).
Advance
Deficiency: As defined in
Section 4.01(b).
Affiliate: With
respect to any Person, any other Person controlling, controlled or under common
control with such Person. For purposes of this definition, “control”
means the power to direct the management and policies of a Person, directly
or
indirectly, whether through ownership of voting securities, by contract, or
otherwise and “controlling” and “controlled” shall have meanings correlative to
the foregoing. Affiliates also include any entities consolidated with
the requirements of generally accepted accounting principles.
Agreement: This
Pooling and Servicing Agreement and all amendments and supplements.
11
Allocable
Portion: As to any Distribution Date and Loan Group,
the percentage equivalent of a fraction, the numerator of which is the aggregate
Stated Principal Balance of the Mortgage Loans in that Loan Group as of the
Due
Date in the prior month (after giving effect to Principal Prepayments received
in the Prepayment Period related to that prior Due Date) and the denominator
of
which is the Pool Principal Balance as of the Due Date in the prior month (after
giving effect to Principal Prepayments received in the Prepayment Period related
to that prior Due Date).
Amount
Held for Future Distribution: As to any Distribution
Date and Loan Group, the aggregate amount held in the Certificate Account at
the
close of business on the related Determination Date on account of (i) Principal
Prepayments received after the last day of the related Prepayment Period and
Liquidation Proceeds and Subsequent Recoveries received in the month of such
Distribution Date and (ii) all Scheduled Payments related to such Loan Group
due
after the related Due Date.
Applied
Realized Loss Amount: With respect to any Distribution
Date and the LIBOR Certificates, the sum of the Realized Losses that are to
be
applied in reduction of the Class Certificate Balances of any such Class of
Certificates pursuant to this Agreement, which, in the case of the Subordinated
Certificates, shall equal the amount, if any, by which the aggregate Class
Certificate Balance of all LIBOR Certificates (after all distributions of
principal on such Distribution Date) exceeds the aggregate Stated Principal
Balance of the Mortgage Loans as of the Due Date in the month in which such
Distribution Date occurs (after giving effect to Principal Prepayments received
in the related Prepayment Period). With respect to the Group 1 Senior
Certificates and any Distribution Date on which the aggregate Class Certificate
Balance of the Subordinated Certificates is equal to zero, the amount, if any,
by which the aggregate Class Certificate Balance of the Group 1 Senior
Certificates (after all distributions of principal on such Distribution Date)
exceeds the aggregate Stated Principal Balance of the Group 1 Mortgage Loans
as
of the Due Date in the month in which such Distribution Date occurs (after
giving effect to Principal Prepayments received in the related Prepayment
Period). With respect to each Class of Group 2 Senior Certificates
and any Distribution Date on which the aggregate Class Certificate Balance
of
the Subordinated Certificates is equal to zero, the amount, if any, by which
the
aggregate Class Certificate Balance of the Group 2 Senior Certificates (after
all distributions of principal on such Distribution Date) exceeds the aggregate
Stated Principal Balance of the Group 2 Mortgage Loans as of the Due Date in
the
month in which such Distribution Date occurs (after giving effect to Principal
Prepayments received in the related Prepayment Period).
Appraised
Value: With respect to any Mortgage Loan, the Appraised
Value of the related Mortgaged Property shall be: (i) with respect to
a Mortgage Loan other than a Refinance Loan, the lesser of (a) the value of
the
Mortgaged Property based upon the appraisal made at the time of the origination
of such Mortgage Loan and (b) the sales price of the Mortgaged Property at
the
time of the origination of such Mortgage Loan; and (ii) with respect to a
Refinance Loan, the value of the Mortgaged Property based upon the appraisal
made at the time of the origination of such Refinance Loan.
Available
Funds: As to any Distribution Date and the Mortgage
Loans in a Loan Group, the sum of (a) the aggregate amount held in the
Certificate Account at the close of business on the related Determination Date,
including any Subsequent Recoveries with respect to Mortgage Loans in a Loan
Group, net of the Amount Held for Future Distribution, net of Prepayment
Charges, the $100 held in trust for the Class P Certificates and Late Payment
Fees and net of amounts permitted to be withdrawn from the Certificate Account
pursuant to clauses (i) - (viii), inclusive, of Section 3.09(a) and amounts
permitted to be withdrawn from the Distribution Account pursuant to clauses
(i)
- (ii), inclusive, of Section 3.09(b), (b) the amount of the Advance
for that Loan Group, (c) in connection with Defective Mortgage Loans in
such Loan Group, as applicable, the aggregate of the Purchase Prices and
Substitution Adjustment Amounts related to those Mortgage Loans deposited on
the
related Distribution Account Deposit Date, and (d) any amount related to the
Mortgage Loans in that Loan Group deposited on the related Distribution Account
Deposit Date pursuant to Section 3.10. The Holders of the Class
P Certificates will be entitled to all Prepayment Charges received on the
Mortgage Loans and the Holders of the Class L Certificates will be entitled
to
all Late Payment Fees and such amounts will not be available for distribution
to
the Holders of any other Class of Certificates.
12
Available
Funds Rate: As to any Distribution Date and:
|
·
|
the
Group 1 Senior Certificates, a rate equal to the product of (i) the
excess of (A) the product of (x) the Interest Funds for Loan Group
1 for
that Distribution Date and (y) a fraction the numerator of which
is 12 and
the denominator of which is the aggregate Stated Principal Balance
of the
Group 1 Mortgage Loans as of the Due Date in the month preceding
the month
of such Distribution Date (after giving effect to Principal Prepayments
in
the Prepayment Period related to that prior Due Date) over (B) the
Swap
Adjustment Rate, and (ii) a fraction, the numerator of which is 30
and the
denominator of which is the actual number of days in the related
Interest
Accrual Period;
|
|
·
|
the
Group 2 Senior Certificates, a rate equal to the product of (i) the
excess of (A) the product of (x) the Interest Funds for Loan Group
2 for
that Distribution Date and (y) a fraction the numerator of which
is 12 and
the denominator of which is the aggregate Stated Principal Balance
of the
Group 2 Mortgage Loans as of the Due Date in the month preceding
the month
of such Distribution Date (after giving effect to Principal Prepayments
in
the Prepayment Period related to that prior Due Date) over (B) the
Swap
Adjustment Rate, and (ii) a fraction, the numerator of which is 30
and the
denominator of which is the actual number of days in the related
Interest
Accrual Period; and
|
|
·
|
the
Subordinated Certificates, a rate equal to the weighted average of
the Available Funds Rate for the Group 1 Senior Certificates and
the Group
2 Senior Certificates, in each case, weighted on the basis of the
excess
of the aggregate Stated Principal Balance of the Group 1 Mortgage
Loans
and the aggregate Stated Principal Balance of the Group 2 Mortgage
Loans,
in each case as of the Due Date in the prior calendar month (after
giving
effect to Principal Prepayments received in the Prepayment Period
related
to that prior Due Date), over the aggregate Class Certificate Balance
of
the Group 1 Senior Certificates and the aggregate Class Certificate
Balance of the Group 2 Senior Certificates, respectively, immediately
prior to such Distribution Date.
|
Bankruptcy
Code: The United States Bankruptcy Reform Act of 1978,
as amended.
Bankruptcy
Coverage Termination Date: Not applicable.
Bankruptcy
Loss: Not applicable.
Bankruptcy
Loss Coverage Amount: Not applicable.
Blanket
Mortgage: The mortgage or mortgages encumbering a
Cooperative Property.
Book-Entry
Certificates: As specified in the Preliminary
Statement.
Business
Day: Any day other than (i) a Saturday or a Sunday, or
(ii) a day on which the banking institutions in the City of New York, New York,
the State of California or the city in which the Corporate Trust Office of
the
Trustee is located (excluding the city in which the Certificate Registrar is
located) are authorized or obligated by law or executive order to be
closed.
13
Carryover
Reserve Fund: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 4.06 with a depository
institution in the name of the Trustee for the benefit of the Certificateholders
and designated “Deutsche Bank National Trust Company, in trust for the
registered holders of IndyMac INDX Mortgage Loan Trust 2007-FLX4, Mortgage
Pass-Through Certificates, Series 2007-FLX4.”
Certificate: Any
one of the certificates issued by the Trust Fund and executed by the Trustee
in
substantially the forms attached as exhibits.
Certificate
Account: The separate Eligible Account or Accounts
created and maintained by the Servicer pursuant to Section 3.06(d) with a
depository institution in the name of the Servicer for the benefit of the
Trustee on behalf of Certificateholders and designated “IndyMac Bank, F.S.B., in
trust for the registered holders of IndyMac INDX Mortgage Loan Trust 2007-FLX4,
Mortgage Pass-Through Certificates, Series 2007-FLX4.”
Certificate
Balance: With respect to any Certificate (other than
the Class C and Class L Certificates) at any date, the maximum dollar amount
of
principal to which the Holder thereof is then entitled under this Agreement,
such amount being equal to the Denomination thereof (A) plus any increase
in the Certificate Balance of such Certificate pursuant to Section 4.02 due
to
receipt of Subsequent Recoveries (B) minus the sum of (i) all
distributions of principal previously made with respect thereto and (ii) all
Applied Realized Loss Amounts allocated to that Certificate, (C) plus the
amount of Net Deferred Interest allocated to that Certificate pursuant to
Section 4.04 prior to the date of determination and (D) in the case of any
Class of Accrual Certificates, plus the Accrual Amount added to the Class
Certificate Balance of such Class prior to such date. The Class L
Certificates do not have a Certificate Balance.
Certificate
Group: Either the Group 1 Certificates or the Group 2
Certificates.
Certificate
Owner: With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of the Book-Entry Certificate. For
the purposes of this Agreement, in order for a Certificate Owner to enforce
any
of its rights under this Agreement, it shall first have to provide evidence
of
its beneficial ownership interest in a Certificate that is reasonably
satisfactory to the Trustee, the Depositor and/or the Servicer, as
applicable.
Certificate
Register: The register maintained pursuant to
Section 5.02.
Certificate
Registrar: Deutsche Bank National Trust Company and its
successors and, if a successor certificate registrar is appointed under this
Agreement, the successor.
Certificateholder
or Holder: The person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purpose
of
giving any consent pursuant to this Agreement, any Certificate registered in
the
name of the Depositor or any affiliate of the Depositor is not Outstanding
and
the Percentage Interest evidenced thereby shall not be taken into account in
determining whether the requisite amount of Percentage Interests necessary
to
effect a consent has been obtained, except that if the Depositor or its
affiliates own 100% of the Percentage Interests evidenced by a Class of
Certificates, the Certificates shall be Outstanding for purposes of any
provision of this Agreement requiring the consent of the Holders of Certificates
of a particular Class as a condition to the taking of any action. The
Trustee is entitled to rely conclusively on a certification of the Depositor
or
any affiliate of the Depositor in determining which Certificates are registered
in the name of an affiliate of the Depositor.
Certification
Party: As defined in Section 11.05.
14
Certifying
Person: As defined in Section 11.05.
Class: All
Certificates bearing the same class designation as set forth in the Preliminary
Statement.
Class
Certificate Balance: For any Class (other than the
Notional Amount and Class L Certificates) as of any date of determination,
the
aggregate of the Certificate Balances of all Certificates of the Class as of
that date.
Class
C Distributable Amount: As to any Distribution Date, an
amount equal to the product of (a) the Class C Tax Pass Through Rate and (b)
the
aggregate Stated Principal Balance of the Mortgage Loans as of the Due Date
in
the month of that Distribution Date (after giving effect to Principal
Prepayments received in the related Prepayment Period).
Class
C Tax Pass Through Rate: For each Distribution Date,
the product of: (1) the amount of interest accrued in respect of the
Master REMIC Regular Interests other than the Class C Interest (other than
the
Class 1-P-1 and Class 1-P-2 Interest) and (2) 12, divided by the sum of the
principal balances in respect of the REMIC 1 Interests.
Closing
Date: May 30, 2007.
CMT
Index: Not applicable.
Code: The
Internal Revenue Code of 1986, including any successor or amendatory
provisions.
COFI: Not
applicable.
COFI
Certificates: Not applicable.
Commission: The
United States Securities and Exchange Commission.
Compensating
Interest: For any Distribution Date, 0.125% multiplied
by one-twelfth multiplied by the aggregate Stated Principal Balance of the
Mortgage Loans as of the first day of the prior month.
Confirmation: Either
the Swap Confirmation or the Corridor Confirmation, as applicable.
Co-op
Shares: Shares issued by a Cooperative
Corporation.
Cooperative
Corporation: The entity that holds title (fee or an
acceptable leasehold estate) to the real property and improvements constituting
the Cooperative Property and that governs the Cooperative Property, which
Cooperative Corporation must qualify as a Cooperative Housing Corporation under
section 216 of the Code.
Cooperative
Loan: Any Mortgage Loan secured by Co-op Shares and a
Proprietary Lease.
Cooperative
Property: The real property and improvements owned by
the Cooperative Corporation, including the allocation of individual dwelling
units to the holders of the Co-op Shares of the Cooperative
Corporation.
Cooperative
Unit: A single family dwelling located in a Cooperative
Property.
15
Corridor
Confirmation: The agreement between the Supplemental
Interest Trustee on behalf of the IndyMac INDX Mortgage Loan Trust 2007-FLX4
and
the Corridor Counterparty evidencing the terms of the Corridor
Contract.
Corridor
Contract: With respect to the LIBOR Certificates, the
interest rate Corridor Contract evidenced by the related Confirmation, a form
of
which is attached to this Agreement as Exhibit P-1.
Corridor
Contract Termination Date: The Distribution Date in
April 2008.
Corridor
Counterparty: Xxxxxx Xxxxxxx Capital Services
Inc.
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-IN07F4 (IndyMac MBS, Inc., IndyMac INDX Mortgage Loan Trust
2007-FLX4, Mortgage Pass-Through Certificates, Series 2007-FLX4), and which
is
the address to which notices to and correspondence with the Trustee should
be
directed. With respect to the Certificate Registrar, the designated
office for presentment and surrender of Certificates for registration transfer,
exchange or final payment thereof which at the date of execution of this
Agreement, is located at DB Services Tennessee, 000 Xxxxxxxxx Xxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxx, 00000-0000, Attention: Transfer Unit.
Credit
Support Collateral Account: The separate Eligible
Account or Accounts created and maintained by the Supplemental Interest Trustee
or the Swap Trustee, as applicable, pursuant to Section 3.06(h) with a
depository institution in the name of the Supplemental Interest Trustee or
the
Swap Trustee, as applicable, for the benefit of the Supplemental Interest Trust
or the Swap Trust, as applicable, on behalf of the Holders of the Offered
Certificates and designated “IndyMac Bank, F.S.B., in trust for the registered
Holders of IndyMac INDX Mortgage Loan Trust 2007-FLX4, Mortgage Pass-Through
Certificates, Series 2007-FLX4.”
Cumulative
Loss Trigger Event: With respect to a Distribution Date
on or after the Stepdown Date occurs if the aggregate amount of Realized Losses
on the Mortgage Loans from (and including) the Cut-off Date to (and including)
the related Due Date (reduced by the aggregate amount of Subsequent Recoveries
received from the Cut-off Date through the Prepayment Period related to that
Due
Date) exceeds the applicable percentage, for such Distribution Date, of the
Cut-off Date Pool Principal Balance, as set forth below:
Distribution
Date
|
Percentage
|
June
2009 – May
2010
|
0.15%
with respect to June 2009, plus an additional 1/12th
of 0.20% for each month thereafter through May
2010
|
June
2010 – May
2011
|
0.35%
with respect to June 2010, plus an additional 1/12th
of 0.30% for each month thereafter through May
2011
|
June
2011 – May
2012
|
0.65%
with respect to June 2011, plus an additional 1/12th
of 0.30% for each month thereafter through May
2012
|
June
2012 – May
2013
|
0.95%
with respect to June 2012, plus an additional 1/12th
of 0.35% for each month thereafter through May
2013
|
June
2013– May
2014
|
1.30%
with respect to June 2013, plus an additional 1/12th
of 0.10% for each month thereafter through May
2014
|
June
2014 and
thereafter
|
1.40%
|
16
Current
Interest: With respect to each Class of LIBOR
Certificates and each Distribution Date, (x) the interest accrued at the
applicable Pass-Through Rate for the applicable Interest Accrual Period on
the
Class Certificate Balance of that Class immediately prior to that Distribution
Date minus (y) the Net Interest Shortfalls allocated to that Class for that
Distribution Date.
Cut-off
Date: May 1, 2007.
Cut-off
Date Pool Principal
Balance: $509,573,579.05.
Cut-off
Date Principal Balance: As to any Mortgage Loan, its
Stated Principal Balance as of the close of business on the Cut-off
Date.
Debt
Service Reduction: For any Mortgage Loan, a reduction
by a court of competent jurisdiction in a proceeding under the Bankruptcy Code
in the Scheduled Payment for the Mortgage Loan that became final and
non-appealable, except a reduction resulting from a Deficient Valuation or
a
reduction that results in a permanent forgiveness of principal.
Defective
Mortgage Loan: Any Mortgage Loan that is required to be
repurchased pursuant to Section 2.02 or 2.03.
Deferred
Interest: With respect to each Mortgage Loan and each
related Due Date, the excess, if any, of the amount of interest accrued on
such
Mortgage Loan from the preceding Due Date to such Due Date over the monthly
payment received for such Due Date.
Deficient
Valuation: For any Mortgage Loan, a valuation by a
court of competent jurisdiction of the Mortgaged Property in an amount less
than
the then outstanding indebtedness under the Mortgage Loan, or any reduction
in
the amount of principal to be paid in connection with any Scheduled Payment
that
results in a permanent forgiveness of principal, which valuation or reduction
results from an order of the court that is final and non-appealable in a
proceeding under the Bankruptcy Code.
Definitive
Certificates: Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 5.02(e).
Delay
Certificates: As specified in the Preliminary
Statement.
Delay
Delivery Certification: A certification substantially
in the form of Exhibit G-3.
Delay
Delivery Mortgage Loans: The 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. The
Depositor shall deliver the Mortgage Files to the Trustee:
(A) for
at least 70% of the Mortgage Loans in each Loan Group, not later than the
Closing Date and
(B) for
the remaining 30% of the Mortgage Loans in each Loan Group, not later than
five
Business Days following the Closing Date.
To
the
extent that the Seller is in possession of any Mortgage File for any Delay
Delivery Mortgage Loan, until delivery of the Mortgage File to the Trustee
as
provided in Section 2.01, the Seller shall hold the files as Servicer, as
agent and in trust for the Trustee.
17
Deleted
Mortgage Loan: As defined in
Section 2.03(c).
Delinquency
Trigger Event: With respect to any Distribution Date on
or after the Stepdown Date, if the Rolling Three Month Delinquency Rate as
of
the last day of the immediately preceding month equals or exceeds 40% of the
Senior Enhancement Percentage for that Distribution Date.
Delinquent: A
Mortgage Loan is “Delinquent” if any monthly payment due on a Due Date is not
made by the close of business on the day immediately preceding the next
scheduled Due Date for such Mortgage Loan. A Mortgage Loan is “30
days Delinquent” if such monthly payment has not been received by the close of
business on the last day of the month in which such monthly payment was
due. The determination of whether a Mortgage Loan is “60 days
Delinquent”, “90 days Delinquent”, etc. shall be made in a like
manner.
Denomination: For
each Certificate, the amount on the face of the Certificate as the “Initial
Certificate Balance of this Certificate” or the “Initial Notional Amount of this
Certificate” or, if neither of the foregoing, the Percentage Interest appearing
on the face of the Certificate.
Depositor: IndyMac
MBS, Inc., a Delaware corporation, or its successor in interest.
Depository: The
initial Depository shall be The Depository Trust Company, the nominee of which
is CEDE & Co., as the registered Holder of the Book-Entry
Certificates. The Depository shall at all times be a “clearing
corporation” as defined in Section 8-102(a)(5) of the UCC.
Depository
Participant: A broker, dealer, bank, or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the
Depository.
Determination
Date: As to any Distribution Date, the 15th day of each
month or if that day is not a Business Day the preceding Business
Day.
Distribution
Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.06(e) in the name of the
Trustee for the benefit of the Certificateholders and designated “Deutsche Bank
National Trust Company in trust for registered holders of IndyMac INDX Mortgage
Loan Trust 2007-FLX4, Mortgage Pass-Through Certificates, Series 2007-FLX4.”
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 June 2007.
Distribution
Percentage: For either Loan Group and Distribution Date, the
percentage equivalent of a fraction, the numerator of which is the Principal
Remittance Amount for that Loan Group and Distribution Date and the denominator
of which is the aggregate Principal Remittance Amount for both Loan Groups
for
that Distribution Date.
Due
Date: For any Mortgage Loan and Distribution Date, the
first day of the month in which such Distribution Date occurs.
18
Due
Period: For any Distribution Date, the period
commencing on the second day of the month preceding the month in which the
Distribution Date occurs and ending on the first day of the month in which
the
Distribution Date occurs.
XXXXX: The
Commission’s Electronic Data Gathering, Analysis and Retrieval
system.
Eligible
Account: Any of (i) an account or accounts maintained
with a federal or state chartered depository institution or trust company the
short-term unsecured debt obligations of which (or, in the case of a depository
institution or trust company that is the principal subsidiary of a holding
company, the debt obligations of either such holding company or the depository
institution or trust company, whichever are rated higher) have (x) if Xxxxx’x is
a Rating Agency at the time amounts are held on deposit therein, the highest
short-term ratings of Moody's (which shall be Prime-1), (y) if Fitch is a Rating
Agency at the time any amounts are held on deposit therein, the highest
short-term rating of Fitch (which shall be F1 for funds held for less than
30
days, and F1+ for funds held for longer than 30 days and less than 365 days)
and
(z) if S&P is a Rating Agency at the time any amounts are held on deposit
therein, a short-term rating of at least A-2, for funds held no longer than
30
days, and, if funds will be held longer than 30 days and less than 365 days,
a
short-term rating of at least A-1+, or (ii) an account or accounts in a
depository institution or trust company in which such accounts are insured
by
the FDIC (to the limits established by the FDIC) and the uninsured deposits
in
which accounts are otherwise secured such that, as evidenced by an Opinion
of
Counsel delivered to the Trustee and to each Rating Agency, the
Certificateholders have a claim with respect to the funds in such account or
a
perfected first priority security interest against any collateral (which shall
be limited to Permitted Investments) securing such funds that is superior to
claims of any other depositors or creditors of the depository institution or
trust company in which such account is maintained, or (iii) a trust account
or
accounts maintained with (a) the trust department of a federal or state
chartered depository institution or (b) a trust company, acting in its fiduciary
capacity or (iv) any other account acceptable to each Rating Agency. Eligible
Accounts may bear interest, and may include, if otherwise qualified under this
definition, accounts maintained with the Trustee.
ERISA: The
Employee Retirement Income Security Act of 1974, as amended.
ERISA-Qualifying
Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements of the
Underwriter’s Exemption.
ERISA-Restricted
Certificate: As specified in the Preliminary
Statement.
Escrow
Account: The Eligible Account or Accounts established
and maintained pursuant to Section 3.07(a).
Event
of Default: As defined in
Section 7.01.
Excess
Cashflow: With respect to any Distribution Date (i) the
Interest Funds remaining after the distribution of interest to the Holders
of
the Certificates for that Distribution Date and (ii) any Principal Distribution
Amount for that Distribution Date remaining after distributions of principal
to
the Senior and Subordinated Certificates.
Excess
Loss: Not applicable.
Excess
Proceeds: For any Liquidated Mortgage Loan, the excess
of
(a) all
Liquidation Proceeds from the Mortgage Loan received in the calendar month
in
which the Mortgage Loan became a Liquidated Mortgage Loan, net of any amounts
previously reimbursed to the Servicer as Nonrecoverable Advances with respect
to
the Mortgage Loan pursuant to Section 3.09(a)(iii), over
19
(b) the
sum of (i) the unpaid principal balance of the Liquidated Mortgage Loan as
of
the Due Date in the month in which the Mortgage Loan became a Liquidated
Mortgage Loan plus (ii) accrued interest at the Mortgage Rate from the Due
Date
for which interest was last paid or advanced (and not reimbursed) to
Certificateholders up to the Due Date applicable to the Distribution Date
following the calendar month during which the liquidation occurred.
Exchange
Act: The Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
Exchange
Act Reports: Any reports on Form 10-D, Form 8-K and
Form 10-K required to be filed by the Depositor with respect to the Trust Fund
under the Exchange Act.
Expense
Fee Rate: As to each Mortgage Loan, the sum of (a) the
Servicing Fee Rate and (b) the Trustee Fee Rate.
Excess
Overcollateralization Amount: With respect to any Distribution
Date, the excess, if any, of the Overcollateralized Amount on that Distribution
Date over the Overcollateralization Target Amount on that Distribution
Date.
Extra
Principal Distribution Amount: For any Distribution Date, the
lesser of (i) the excess of (x) the Interest Remittance Amount for that
Distribution Date over (y) the aggregate amount of Current Interest and Interest
Carry Forward Amount for that Distribution Date and (ii) the
Overcollateralization Deficiency Amount for that Distribution Date.
FDIC: The
Federal Deposit Insurance Corporation, or any successor thereto.
FHLMC: The
Federal Home Loan Mortgage Corporation, a corporate instrumentality of the
United States created and existing under Title III of the Emergency Home Finance
Act of 1970, as amended, or any successor thereto.
Fitch: Fitch,
Inc., or any successor thereto. If Fitch is designated as a Rating
Agency in the Preliminary Statement, for purposes of Section 10.05(b) the
address for notices to Fitch shall be Fitch, Inc., Xxx Xxxxx Xxxxxx Xxxxx,
Xxx
Xxxx, XX 00000, Attention: MBS Monitoring - IndyMac 2007-FLX4, or any
other address Fitch furnishes to the Depositor and the Servicer.
FNMA: The
Federal National Mortgage Association, a federally chartered and privately
owned
corporation organized and existing under the Federal National Mortgage
Association Charter Act, or any successor thereto.
Form
10-D Disclosure Item: With respect to any Person, any
material litigation or governmental proceedings pending against such Person,
or
against any of the Trust Fund, the Depositor, the Trustee or the Servicer,
if
such Person has actual knowledge thereof.
Form
10-K Disclosure Item: With respect to any Person, (a)
Form 10-D Disclosure Item, and (b) any affiliations or relationships between
such Person and any Item 1119 Party.
Fraud
Loan: Not applicable.
20
Fraud
Losses: Not applicable.
Fraud
Loss Coverage Amount: Not applicable.
Fraud
Loss Coverage Termination Date: Not
applicable.
Fully
Amortizing Monthly Payment: With respect to any
Mortgage Loan, the payment that if made by a Mortgagor would fully amortize
the
Mortgage Loan over the initial term of 30 years.
Grantor
Trust: As specified in the Preliminary
Statement.
Gross
Margin: With respect to each Mortgage Loan, the fixed
percentage set forth in the related Mortgage Note that is added to the Mortgage
Index on each Adjustment Date in accordance with the terms of the related
Mortgage Note used to determine the Mortgage Rate for such Mortgage
Loan.
Group
1 Certificates: As specified in the Preliminary
Statement.
Group
1 Mortgage Loan: Any Mortgage Loan in Loan Group
1.
Group
1 Senior Certificates: As specified in the Preliminary
Statement.
Group
1 Senior Principal Distribution Amount: With respect to
Loan Group 1 and any Distribution Date on or after the Stepdown Date (and so
long as no Trigger Event is in effect), the product of (x) the Distribution
Percentage for Loan Group 1 for that Distribution Date and (y) the Senior
Principal Distribution Amount for that Distribution Date.
Group
2 Certificates: As specified in the Preliminary
Statement.
Group
2 Mortgage Loan: Any Mortgage Loan in Loan Group
2.
Group
2 Senior Certificates: As specified in the Preliminary
Statement.
Group
2 Senior Principal Distribution Amount: With respect to Loan Group
2 and any Distribution Date on or after the Stepdown Date (and so long as no
Trigger Event is in effect), the product of (x) the Distribution Percentage
for
Loan Group 2 for that Distribution Date and (y) the Senior Principal
Distribution Amount for that Distribution Date.
Hard
Prepayment Charges: As to a Mortgage Loan, any charge
payable by a Mortgagor in connection with certain partial Principal Prepayments
and all Principal Prepayments in Full made within the related Prepayment Charge
Period, the Hard Prepayment Charges with respect to each applicable Mortgage
Loan so held by the Trust Fund being identified in the Mortgage Loan
Schedule.
Xxxxxx
Certificates: The LIBOR Certificates.
Indirect
Participant: A broker, dealer, bank, or other financial
institution or other Person that clears through or maintains a custodial
relationship with a Depository Participant.
Initial
Bankruptcy Loss Coverage Amount: Not
applicable.
Initial
LIBOR Rate: 5.32% per annum.
21
Insurance
Policy: For any Mortgage Loan included in the Trust
Fund, any insurance policy, including all riders and endorsements thereto in
effect, including any replacement policy or policies for any Insurance
Policies.
Insurance
Proceeds: Proceeds paid by an insurer pursuant to any
Insurance Policy, in each case other than any amount included in such Insurance
Proceeds in respect of Insured Expenses.
Insured
Expenses: Expenses covered by an Insurance Policy or
any other insurance policy with respect to the Mortgage Loans.
Interest
Accrual Period: With respect to each Class of Delay
Certificates and any Distribution Date, the calendar month prior to the month
of
such Distribution Date. The Delay Certificates will accrue interest
on the basis of a 360-day year consisting of twelve 30-day
months. With respect to each Class of Non-Delay Certificates and any
Distribution Date, the period commencing on the immediately preceding
Distribution Date (or, in the case of the first Distribution Date, the Closing
Date) and ending on the day immediately preceding that Distribution
Date. Each Class of Non-Delay Certificates will accrue interest on
the basis of a 360-day year and the actual number of days elapsed during the
related Interest Accrual Period.
Interest
Carry Forward Amount: With respect to each Class of
LIBOR Certificates and each Distribution Date, the sum of (i) the excess of
(a)
Current Interest for that Class with respect to prior Distribution Dates, over
(b) the amount actually distributed to that Class with respect to interest
on
prior Distribution Dates and (ii) interest for the applicable Interest Accrual
Period on the amount described in clause (i) based on the Pass-Through Rate
for
the applicable Class of LIBOR Certificates.
Interest
Determination Date: With respect to (a) any Interest
Accrual Period for a Class of LIBOR Certificates and (b) any Interest Accrual
Period for the COFI Certificates for which the applicable Index is LIBOR, the
second Business Day prior to the first day of such Interest Accrual
Period.
Interest
Funds: For any Distribution Date and Loan Group, the
Interest Remittance Amount for that Loan Group minus the Allocable Portion
of
the Trustee Fee for that Distribution Date.
Interest
Only Monthly Payment: With respect to any Mortgage
Loan, the payment of only interest made by the Mortgagor.
Interest
Rate: With respect to each REMIC 1 Interest, REMIC 2
Interest or Master REMIC Interest, the applicable rate set forth or calculated
in the manner described in the Preliminary Statement.
Interest
Remittance Amount: For any Distribution Date and Loan
Group is :
(a) the
sum, without duplication, of:
(1) all
interest on the Mortgage Loans in that Loan Group due on the related Due Date
and received on or prior to the related Determination Date, less the related
Servicing Fees,
(2) all
interest on Principal Prepayments on the Mortgage Loans in that Loan Group,
other than Prepayment Interest Excess,
(3) all
Advances relating to interest in respect of the Mortgage Loans in that Loan
Group with respect to payments not paid by the related Determination
Date,
22
(4) amounts
paid by the Servicer in respect of Compensating Interest for that Loan Group,
and
(5) Liquidation
Proceeds on the Mortgage Loans in that Loan Group received during the related
Prepayment Period (to the extent such Liquidation Proceeds relate to
interest)
minus
(b) all
Advances in respect of the Mortgage Loans in that Loan Group relating to
interest and certain expenses reimbursed since the prior Due Date,
plus
(c) the
lesser of (i) the Principal Prepayment Amount for that Loan Group and that
Distribution Date and (ii) the aggregate Deferred Interest for that Loan Group
for the related Due Period.
Interest
Settlement Rate: As defined in
Section 4.07.
Item
1119 Party: The Depositor, the Seller, the Servicer,
the Trustee, the Swap Counterparty and any other material transaction party,
as
identified in Exhibit T, as updated pursuant to Section 11.04.
Late
Payment Fee: As to a Mortgage Loan, any fees assessable
by the related mortgagee in connection with the late payment of a Scheduled
Payment due after the Cut-off Date.
Latest
Possible Maturity Date: The Distribution Date,
calculated on the Closing Date, following the third anniversary of the later
of:
(i) the scheduled maturity date of the Mortgage Loan having the latest scheduled
maturity date as of the Cut-off Date, and (ii) the latest possible maturity
of
any Substitute Mortgage Loan that may be substituted for any Mortgage Loan
pursuant to this Agreement..
Lender
PMI Loans: Mortgage Loans with respect to which the
lender rather than the borrower acquired the primary mortgage guaranty insurance
and charged the related borrower an interest premium.
LIBOR: The
London interbank offered rate for one month United States dollar deposits
calculated in the manner described in Section 4.07.
LIBOR
Certificates: As specified in the Preliminary
Statement.
LIBOR
Determination Date: For any Interest Accrual Period,
the second London Business Day prior to the commencement of such Interest
Accrual Period.
Limited
Exchange Act Reporting Obligations: The obligations of
the Servicer under Section 3.17(b), Section 6.02 and Section 6.04
with respect to notice and information to be provided to the Depositor and
Article 11 (except Section 11.07(a)(i) and (ii)).
Liquidated
Mortgage Loan: For any Distribution Date, a defaulted
Mortgage Loan (including any REO Property) that was liquidated in the calendar
month preceding the month of the Distribution Date and as to which the Servicer
has certified (in accordance with this Agreement) that it has received all
amounts it expects to receive in connection with the liquidation of the Mortgage
Loan, including the final disposition of an REO Property.
23
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: Either Loan Group 1 or Loan Group 2, as
applicable.
Loan
Group 1: All Mortgage Loans identified as Group 1
Mortgage Loans on the Mortgage Loan Schedule.
Loan
Group 2: All Mortgage Loans identified as Group 2
Mortgage Loans on the Mortgage Loan Schedule.
Loan-to-Value
Ratio: For any Mortgage Loan and as of any date of
determination, is the fraction whose numerator is the original principal balance
of the related Mortgage Loan at that date of determination and whose denominator
is the Appraised Value of the related Mortgaged Property.
London
Business Day: Any day on which dealings in deposits of
United States dollars are transacted in the London interbank
market.
Lost
Mortgage Note: Any Mortgage Note the original of which
was permanently lost or destroyed and has not been replaced.
Maintenance: For
any Cooperative Unit, the rent paid by the Mortgagor to the Cooperative
Corporation pursuant to the Proprietary Lease.
Maximum
Mortgage Rate: For each Mortgage Loan, the percentage
set forth in the related Mortgage Note as the lifetime maximum Mortgage Rate
to
which such Mortgage Rate may be adjusted.
MERS: Mortgage
Electronic Registration Systems, Inc., a corporation organized and existing
under the laws of the State of Delaware, or any successor thereto.
MERS
Mortgage Loan: Any Mortgage Loan registered with MERS
on the MERS® System.
MERS®
System: The system of recording transfers of mortgages
electronically maintained by MERS.
MIN: The
mortgage identification number for any MERS Mortgage Loan.
Minimum
Monthly Payment: For any Mortgage Loan, the product of
(x) the related Payment Limit and (y) the related Fully Amortizing Monthly
Payment.
Minimum
Mortgage Rate: For each Mortgage Loan, the percentage
set forth in the related Mortgage Note as the lifetime minimum Mortgage Rate
to
which such Mortgage Rate may be adjusted.
MOM
Loan: Any Mortgage Loan as to which MERS is acting as
mortgagee, solely as nominee for the originator of such Mortgage Loan and its
successors and assigns.
Monthly
Statement: The statement delivered to the
Certificateholders pursuant to Section 4.05.
24
Moody’s: Xxxxx’x
Investors Service, Inc., or any successor thereto. 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 Servicer.
Mortgage: The
mortgage, deed of trust, or other instrument creating a first lien on an estate
in fee simple or leasehold interest in real property securing a Mortgage
Note.
Mortgage
File: The mortgage documents listed in
Section 2.01 pertaining to a particular Mortgage Loan and any additional
documents delivered to the Trustee to be added to the Mortgage File pursuant
to
this Agreement.
Mortgage
Index: One-Year LIBOR Index.
Mortgage
Loans: Such of the mortgage loans transferred and
assigned to the Trustee pursuant to this Agreement, as from time to time are
held as a part of the Trust Fund (including any REO Property), the Mortgage
Loans so held being identified on the Mortgage Loan Schedule, notwithstanding
foreclosure or other acquisition of title of the related Mortgaged
Property.
Mortgage
Loan Schedule: As of any date, the list set forth in
Schedule I of Mortgage Loans included in the Trust Fund on that
date. The Mortgage Loan Schedule shall be prepared by the Seller and
shall set forth the following information with respect to each Mortgage Loan
by
Loan Group:
|
(i)
|
the
loan number;
|
|
(ii)
|
the
street address of the Mortgaged Property, including the zip
code;
|
|
(iii)
|
the
maturity date;
|
|
(iv)
|
the
original principal balance;
|
|
(v)
|
the
Cut-off Date Principal Balance;
|
|
(vi)
|
the
first payment date of the Mortgage
Loan;
|
|
(vii)
|
the
Scheduled Payment in effect as of the Cut-off
Date;
|
|
(viii)
|
the
Gross Margin in effect as of the Cut-off
Date;
|
|
(ix)
|
the
Maximum Mortgage Rate in effect as of the Cut-off
Date;
|
|
(x)
|
the
Payment Adjustment Date in effect as of the Cut-off
Date;
|
|
(xi)
|
a
code indicating the Mortgage Index and when it is
determined;
|
|
(xii)
|
the
Loan-to-Value Ratio at origination;
|
|
(xiii)
|
a
code indicating whether the residential dwelling at the time of
origination was represented to be
owner-occupied;
|
25
|
(xiv)
|
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;
|
|
(xv)
|
the
Mortgage Rate in effect as of the Cut-off
Date;
|
|
(xvi)
|
the
purpose for the Mortgage Loan;
|
(xvii)
|
the
type of documentation program pursuant to which the Mortgage Loan
was
originated;
|
(xviii)
|
a
code indicating whether the Mortgage Loan is a borrower-paid mortgage
insurance loan;
|
(xix)
|
the
Servicing Fee Rate;
|
(xx)
|
a
code indicating whether the Mortgage Loan is a Lender PMI
Loan;
|
(xxi)
|
the
coverage amount of any mortgage
insurance;
|
(xxii)
|
with
respect to the Lender PMI Loans, the interest premium charged by
the
lender;
|
(xxiii)
|
a
code indicating whether the Mortgage Loan is a Delay Delivery Mortgage
Loan;
|
(xxiv)
|
the
Minimum Mortgage Rate in effect as of the Cut-off
Date;
|
(xxv)
|
a
code indicating whether the Mortgage Loan is a MERS Mortgage Loan;
and
|
(xxvi)
|
the
type of Prepayment Charges (Hard Prepayment Charges or Soft Prepayment
Charges ) and the length of time during which Prepayment Charges
will be
imposed on a Mortgage Loan.
|
The
schedule shall also set forth the total of the amounts described under (v)
above
for all of the Mortgage Loans and for each Loan Group.
Mortgage
Note: The original executed note or other evidence of
the indebtedness of a Mortgagor under a Mortgage Loan.
Mortgage
Rate: The annual rate of interest borne by a Mortgage
Note from time to time (net of the interest premium for any Lender PMI
Loan).
Mortgaged
Property: The underlying property securing a Mortgage
Loan, which, with respect to a Cooperative Loan, is the related Co-op Shares
and
Proprietary Lease.
Mortgagor: The
obligors on a Mortgage Note.
National
Cost of Funds Index: The National Monthly Median Cost
of Funds Ratio to SAIF-Insured Institutions published by the OTS.
26
Net
Deferred Interest: With respect to each Loan Group and
Distribution Date, the excess, if any, of the aggregate amount of Deferred
Interest that accrued on the Mortgage Loans in that Loan Group from the
preceding Due Date to the Due Date in the month of such Distribution Date,
over
the Principal Prepayment Amount for that Loan Group and Distribution
Date.
Net
Interest Shortfall: With respect to any Distribution
Date and Loan Group, an amount equal to the sum of (x) any Net Prepayment
Interest Shortfalls for that Loan Group and Distribution Date and (y) the amount
of interest that would otherwise have been received with respect to any Mortgage
Loan in that Loan Group that was the subject of a Relief Act Reduction to the
extent not covered by Excess Cashflow.
Net
Prepayments: With respect to any Distribution Date and Loan Group,
the excess, if any, of (i) the Principal Prepayment Amount for that Loan Group
over (ii) the aggregate amount of Deferred Interest accrued on the Mortgage
Loans in that Loan Group from the preceding Due Date to the Due Date related
to
that Distribution Date.
Net
Prepayment Interest Shortfall: As to any Distribution
Date and Loan Group, the amount, if any, by which the aggregate of the
Prepayment Interest Shortfalls for such Loan Group exceeds the sum of (x) the
Compensating Interest for such Loan Group and Distribution Date and (y) the
excess, if any, of the Compensating Interest for the other Loan Group over
the
Prepayment Interest Shortfalls for such other Loan Group and Distribution
Date.
Net
Rate Carryover: For a Class of LIBOR Certificates on
any Distribution Date, the excess of:
(1) the
amount of interest that Class would have accrued for that Distribution Date
had
the Pass-Through Rate for that Class and the related Interest Accrual Period
not
been calculated based on the lesser of: (A) LIBOR plus the applicable
Pass-Through Margin; and (B) the sum of (i) the related Available Funds Rate
and
(ii) the product of (AA) a fraction the numerator of which is 360 and the
denominator of which is the actual number of days in the related Interest
Accrual Period and (BB) the sum of (a) a fraction the numerator of which is
an
amount equal to any payments received under the Corridor Contract and the
denominator of which is the aggregate Class Certificate Balance of the
Certificates immediately prior to such Distribution Date, and (b) a fraction
the
numerator of which is the Net Swap Payments owed by the Swap Counterparty for
such Distribution Date and the denominator of which is the aggregate Stated
Principal Balance of the Mortgage Loans as of the immediately preceding
Distribution Date, over
(2) the
amount of interest that Class accrued on that Distribution Date based on the
related Available Funds Rate,
plus
the unpaid portion of any excess from prior Distribution Dates (and interest
accrued thereon at the then applicable Pass-Through Rate, without giving effect
to the related Available Funds Rate).
Net
Swap Payment: With respect to the Swap Contract, any
Distribution Date and payment from the Swap Trust to the Swap Counterparty,
the
excess, if any, of the “Fixed Amounts” (as defined in the Swap Contract) with
respect to such Distribution Date over the “Floating Amounts” (as defined in the
Swap Contract) with respect to such Distribution Date. With respect
to the Swap Contract, any Distribution Date and payment by the Swap Counterparty
to the Swap Trust, the excess, if any, of the “Floating Amounts” with respect to
such Distribution Date over the “Fixed Amounts” with respect to such
Distribution Date.
27
NIM
Insurer: Any insurer guarantying at the request of the
Holder of the Class C or Class P Certificates certain payments under notes
backed or secured by the Class C or Class P Certificates.
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 Servicer, that, in the good faith judgment of the
Servicer, will not be ultimately recoverable by the Servicer from the related
Mortgagor, related Liquidation Proceeds or otherwise.
Notice
of Final Distribution: The notice to be provided
pursuant to Section 9.02 to the effect that final distribution on any of
the Certificates shall be made only upon presentation and surrender
thereof.
Notional
Amount: Not applicable.
Notional
Amount Certificates: As specified in the Preliminary
Statement.
Notional
Amount Components: As specified in the Preliminary
Statement.
OC
Floor: An amount equal to 0.50% of the Cut-off Date
Pool Principal Balance.
Offered
Certificates: As specified in the Preliminary
Statement.
Officer’s
Certificate: A certificate (i) signed by the Chairman
of the Board, the Vice Chairman of the Board, the President, a Managing
Director, a Vice President (however denominated), an Assistant Vice President,
the Treasurer, the Secretary, or one of the Assistant Treasurers or Assistant
Secretaries of the Depositor or the Servicer, or (ii) if provided for in this
Agreement, signed by a Servicing Officer, as the case may be, and delivered
to
the Depositor and the Trustee as required by this Agreement or (iii) in the
case
of any other Person, signed by an authorized officer of such
Person.
One-Year
CMT Index: The weekly average yield on United States
Treasury securities adjusted to a constant maturity of one year as published
by
the Federal Reserve Board in Statistical Release H.15 and most recently
available as of a day specified in the related Mortgage Note.
One-Year
LIBOR Index: The average of the London interbank
offered rates for one-year U.S. dollar deposits in the London market, generally
as set forth in either The Wall Street Journal or some other source generally
accepted in the residential mortgage loan origination business and specified
in
the related Mortgage Note, or, if such rate ceases to be published in The Wall
Street Journal or becomes unavailable for any reason, then based upon a new
index selected by the servicer, based on comparable information, in each case,
as most recently announced as of either 45 days prior to, or the first Business
Day of the month immediately preceding the month of, such Adjustment
Date.
Opinion
of Counsel: For the interpretation or application of
the REMIC Provisions, a written opinion of counsel who (i) is in fact
independent of the Depositor and the Servicer, (ii) does not have any direct
financial interest in the Depositor or the Servicer or in any affiliate of
either, and (iii) is not connected with the Depositor or the Servicer as an
officer, employee, promoter, underwriter, trustee, partner, director, or person
performing similar functions. Otherwise, a written opinion of counsel
who may be counsel for the Depositor or the Servicer, including in-house
counsel, reasonably acceptable to the Trustee.
Optional
Termination Date: As defined in
Section 9.01.
28
Original
Mortgage Loan: The Mortgage Loan refinanced in
connection with the origination of a Refinance Loan.
OTS: The
Office of Thrift Supervision.
Outside
Reference Date: Not applicable.
Outstanding: For
the Certificates as of any date of determination, all Certificates theretofore
executed and authenticated under this Agreement except:
|
(i)
|
Certificates
theretofore canceled by the Trustee or delivered to the Trustee for
cancellation; and
|
|
(ii)
|
Certificates
in exchange for which or in lieu of which other Certificates have
been
executed and delivered by the Trustee pursuant to this
Agreement.
|
Outstanding
Mortgage Loan: As of any Due Date, a Mortgage Loan with
a Stated Principal Balance greater than zero that was not the subject of a
Principal Prepayment in Full before the Due Date or during the related
Prepayment Period and that did not become a Liquidated Mortgage Loan before
the
Due Date.
Overcollateralization
Deficiency Amount: For any Distribution Date, the
amount, if any, by which the Overcollateralization Target Amount exceeds the
Overcollateralized Amount on that Distribution Date (after giving effect to
distributions of the Principal Remittance Amounts on that Distribution
Date).
Overcollateralization
Release Amount: With respect to any Distribution Date
on which the Excess Overcollateralization Amount is, or would be after taking
into account all other distributions to be made on that Distribution Date,
greater than zero, an amount equal to the lesser of (x) the Excess
Overcollateralization Amount for that Distribution Date and (y) the aggregate
Principal Remittance Amount for Loan Group 1 and Loan Group 2 that Distribution
Date.
Overcollateralization
Target Amount: With respect to any Distribution Date
(a) prior to the Stepdown Date, an amount equal to 0.50% of the Cut-off Date
Pool Principal Balance and (b) on or after the Stepdown Date, the greater of
(i)
(x) for any Distribution Date prior to the Distribution Date in June 2013,
an
amount equal to 1.25% of the aggregate Stated Principal Balance of the Mortgage
Loans as of the Due Date in the month of that Distribution Date (after giving
effect to Principal Prepayments received in the related Prepayment Period)
and
(y) for any Distribution Date on or after the Distribution Date in June 2013,
an
amount equal to 1.00% of the aggregate Stated Principal Balance of the Mortgage
Loans as of the Due Date in the month of that Distribution Date (after giving
effect to Principal Prepayments received in the related Prepayment Period)
and
(ii) the OC Floor; provided, however, that if a Trigger Event is in effect
on
any Distribution Date, the Overcollateralization Target Amount will be the
Overcollateralization Target Amount as in effect for the prior Distribution
Date.
Overcollateralized
Amount: For any Distribution Date, the amount, if any,
by which (x) the Pool Principal Balance as of the Due Date in the month of
that
Distribution Date (after giving effect to Principal Prepayments received in
the
related Prepayment Period) exceeds (y) the aggregate Class Certificate Balance
of the Offered Certificates (after giving effect to distributions of the
Principal Distribution Amount (excluding the Extra Principal Distribution
Amount) on that Distribution Date).
29
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: With respect to the Interest Accrual Period for
any Distribution Date and Class of LIBOR Certificates, the per annum rate
indicated in the following table:
Class
of LIBOR Certificates
|
Pass-Through
Margin
|
||
(1)
|
(2)
|
||
Class
1-A-1
|
0.200%
|
0.400%
|
|
Class
1-A-2
|
0.250%
|
0.500%
|
|
Class
2-A-1
|
0.180%
|
0.360%
|
|
Class
2-A-2
|
0.250%
|
0.500%
|
|
Class
2-A-3
|
0.300%
|
0.600%
|
|
Class
M-1
|
0.500%
|
0.750%
|
|
Class
M-2
|
0.550%
|
0.825%
|
|
Class
M-3
|
0.750%
|
1.125%
|
|
Class
M-4
|
1.000%
|
1.500%
|
|
Class
M-5
|
1.000%
|
1.500%
|
|
Class
M-6
|
1.000%
|
1.500%
|
|
Class
M-7
|
1.000%
|
1.500%
|
|
Class
M-8
|
1.000%
|
1.500%
|
|
Class
M-9
|
1.000%
|
1.500%
|
________________________
(1)
|
For
the Interest Accrual Period related to any Distribution Date occurring
on
or prior to the first possible Optional Termination
Date.
|
(2)
|
For
the Interest Accrual Period related to any Distribution Date occurring
after the first possible Optional Termination
Date.
|
Pass-Through
Rate: For each Class of Certificates, the per annum
rate set forth or calculated in the manner described in the Preliminary
Statement.
Payment
Adjustment Date: A date specified in each Mortgage Note
as a date on which the Scheduled Payment for the related Mortgage Loan is
subject to adjustment.
Payment
Cap: For each Mortgage Loan, the percentage limit set
forth in the related Mortgage Note concerning the maximum permitted increase
in
a Scheduled Payment on any Payment Adjustment Date other than in connection
with
a recast of the Scheduled Payment.
Payment
Limit: For each Mortgage Loan, the percentage set forth in the
related Mortgage Note.
Percentage
Interest: As to any Certificate, the percentage
interest evidenced thereby in distributions required to be made on the related
Class, the percentage interest being set forth on its face or equal to the
percentage obtained by dividing the Denomination of the Certificate by the
aggregate of the Denominations of all Certificates of the same
Class.
Performance
Certification: As defined in
Section 11.05.
30
Permitted
Investments: At any time, any of the
following:
(i) obligations
of the United States or any agency thereof backed by the full faith and credit
of the United States;
(ii) general
obligations of or obligations guaranteed by any state of the United States
or
the District of Columbia receiving the highest long-term debt rating of each
Rating Agency, or any lower rating that will not result in the downgrading,
qualification or withdrawal of the ratings then assigned to the Certificates
by
the Rating Agencies, as evidenced by a signed writing delivered by each Rating
Agency;
(iii) commercial
or finance company paper that is then receiving the highest commercial or
finance company paper rating of each Rating Agency, or any lower rating that
will not result in the downgrading, qualification or withdrawal of the ratings
then assigned to the Certificates by the Rating Agencies , as evidenced by
a
signed writing delivered by each Rating Agency;
(iv) certificates
of deposit, demand or time deposits, or bankers’ acceptances issued by any
depository institution or trust company incorporated under the laws of the
United States or of any state thereof and subject to supervision and examination
by federal or state banking authorities, provided that the commercial paper
or
long-term unsecured debt obligations of the depository institution or trust
company (or in the case of the principal depository institution in a holding
company system, the commercial paper or long-term unsecured debt obligations
of
the holding company, but only if 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, qualification or withdrawal of the ratings then assigned to
the
Certificates by the Rating Agencies, as evidenced by a signed writing delivered
by each Rating Agency;
(v) demand
or time deposits or certificates of deposit issued by any bank or trust company
or savings institution to the extent that the deposits are fully insured by
the
FDIC;
(vi) guaranteed
reinvestment agreements issued by any bank, insurance company, or other
corporation acceptable to the Rating Agencies at the time of the issuance of
the
agreements, as evidenced by a signed writing delivered by each Rating
Agency;
(vii) repurchase
obligations with respect to any security described in clauses (i) and (ii)
above, in either case entered into with a depository institution or trust
company (acting as principal) described in clause (iv) above; provided that
such
repurchase obligation would be accounted for as a financing arrangement under
generally accepted accounting principles;
(viii) securities
(other than stripped bonds, stripped coupons, or instruments sold at a purchase
price in excess of 115% of their face amount) bearing interest or sold at a
discount issued by any corporation incorporated under the laws of the United
States or any state thereof that, at the time of the investment, have one of
the
two highest ratings of each Rating Agency (except if the Rating Agency is
Moody’s the rating shall be the highest commercial paper rating of Moody’s for
the securities), or any lower rating that will not result in the downgrading,
qualification or withdrawal of the ratings then assigned to the Certificates
by
the Rating Agencies, as evidenced by a signed writing delivered by each Rating
Agency and that have a maturity date occurring no more than 365 days from their
date of issuance;
(ix) units
of a taxable money-market portfolio having the highest rating assigned by each
Rating Agency (except (i) if Fitch is a Rating Agency and has not rated the
portfolio, the highest rating assigned by Moody’s and (ii) if S&P is a
Rating Agency, “AAAm” or “AAAM-G” by S&P) and 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
31
(x) any
other investments bearing interest or sold at a discount acceptable to each
Rating Agency that will not result in the downgrading, qualification or
withdrawal of the ratings then assigned to the Certificates by the Rating
Agencies, as evidenced by a signed writing delivered by each Rating Agency,
and
reasonably acceptable to the NIM Insurer, as evidence by a signed writing
delivered by the NIM Insurer.
No
Permitted Investment may (i) evidence the right to receive interest-only
payments with respect to the obligations underlying the instrument, (ii) be
sold
or disposed of before its maturity or (iii) be any obligation of the Seller
or
any of its Affiliates. Any Permitted Investment shall be relatively
risk free and no options or voting rights shall be exercised with respect to
any
Permitted Investment. Any Permitted Investment shall be sold or
disposed in accordance with Financial Accounting Standard 140, paragraph 35c(6)
in effect as of the Closing Date.
Permitted
Transferee: Any person other than
(i) the
United States, any State or political subdivision thereof, or any agency or
instrumentality of any of the foregoing,
(ii) a
foreign government, International Organization, or any agency or instrumentality
of either of the foregoing,
(iii) an
organization (except certain farmers’ cooperatives described in section 521 of
the Code) that is exempt from tax imposed by Chapter 1 of the Code (including
the tax imposed by section 511 of the Code on unrelated business taxable income)
on any excess inclusions (as defined in section 860E(c)(1) of the Code) with
respect to any Residual Certificate,
(iv) a
rural electric and telephone cooperatives described in section 1381(a)(2)(C)
of
the Code,
(v) an
“electing large partnership” as defined in section 775 of the Code,
(vi) a
Person that is not a U.S. Person, and
(vii) any
other Person so designated by the Depositor based on an Opinion of Counsel
that
the Transfer of an Ownership Interest in a Residual Certificate to the Person
may cause any REMIC to fail to qualify as a REMIC at any time that the
Certificates are outstanding.
Person: Any
individual, corporation, partnership, joint venture, association, limited
liability company, joint-stock company, trust, unincorporated organization,
or
government, or any agency or political subdivision thereof.
Physical
Certificates: As specified in the Preliminary
Statement.
Plan: An
“employee benefit plan” as defined in section 3(3) of ERISA that is subject to
Title I of ERISA, a “plan” as defined in section 4975 of the Code that is
subject to section 4975 of the Code, or any Person investing on behalf of or
with plan assets (as defined in 29 CFR §2510.3-101 or otherwise under ERISA) of
such an employee benefit plan or plan.
32
Planned
Balance: With respect to the Planned Principal Classes
in the aggregate and any Distribution Date appearing in the aggregate Principal
Balance Schedule, the amount appearing opposite such Distribution Date for
such
Planned Principal Classes.
Planned
Principal Classes: As specified in the Preliminary
Statement.
Pool
Principal Balance: The aggregate Stated Principal
Balances of the Mortgage Loans.
Prepayment
Charge: As to any Mortgage Loan, a Hard Prepayment
Charge or Soft Prepayment Charge, as set forth in the Mortgage Loan
Schedule.
Prepayment
Charge Period: As to any Mortgage Loan, the period of
time during which a Prepayment Charge may be imposed.
Prepayment
Interest Excess: As to any Principal Prepayment
received by the Servicer on a Mortgage Loan from the first day through the
fifteenth day of any calendar month other than the month of the Cut-off Date,
all amounts paid by the related Mortgagor in respect of interest on such
Principal Prepayment. All Prepayment Interest Excess shall be
retained by the Servicer as additional servicing compensation.
Prepayment
Interest Shortfall: As to any Distribution Date,
Mortgage Loan and Principal Prepayment received on or after the sixteenth day
of
the month preceding the month of such Distribution Date (or, in the case of
the
first Distribution Date, on or after the Cut-off Date) and on or before the
last
day of the month preceding the month of such Distribution Date, the amount,
if
any, by which one month’s interest at the related Mortgage Rate, net of the
Servicing Fee Rate, on such Principal Prepayment exceeds the amount of interest
paid in connection with such Principal Prepayment.
Prepayment
Period: As to any Distribution Date and related Due
Date, the period from and including the 16th day of
the month
immediately prior to the month of such Distribution Date (or, in the case of
the
first Distribution Date, from the Cut-off Date) and to and including the 15th day of
the month
of such Distribution Date.
Prepayment
Shift Percentage: Not applicable.
Primary
Insurance Policy: Each policy of primary mortgage
guaranty insurance or any replacement policy therefor with respect to any
Mortgage Loan.
Principal
Allocation Percentage: For Loan Group 1 with respect to
any Distribution Date, a fraction, expressed as a percentage, the numerator
of
which is the Principal Remittance Amount for Loan Group 1 for that Distribution
Date and the denominator of which is the aggregate of the Principal Remittance
Amounts for Loan Group 1 and Loan Group 2 for that Distribution
Date. For Loan Group 2 with respect to any Distribution Date, a
fraction, expressed as a percentage, the numerator of which is the Principal
Remittance Amount for Loan Group 2 for that Distribution Date and the
denominator of which is the aggregate of the Principal Remittance Amounts for
Loan Group 1 and Loan Group 2 for that Distribution Date.
Principal
Balance Schedules: Not applicable.
Principal
Distribution Amount: With respect to each Distribution
Date and Loan Group, the product of (x) the related Distribution Percentage
and (y) an amount equal to the sum of (1) the aggregate Principal Remittance
Amount for both Loan Groups for that Distribution Date minus the
Overcollateralization Release Amount for that Distribution Date and (2) the
Extra Principal Distribution Amount for that Distribution Date.
33
Principal
Only Certificates: As specified in the Preliminary
Statement.
Principal
Prepayment: Any payment of principal by a Mortgagor on
a Mortgage Loan (including the principal portion of the Purchase Price of any
Mortgage Loan purchased pursuant to Section 3.12) that is received in
advance of its scheduled Due Date and is not accompanied by an amount
representing scheduled interest due on any date in any month after the month
of
prepayment. The Servicer shall apply partial Principal Prepayments in
accordance with the related Mortgage Note.
Principal
Prepayment Amount: For any Distribution Date and Loan
Group, the sum of all voluntary Principal Prepayments in excess of the Interest
Only Payment received on the Mortgage Loans in that Loan Group during the
related Prepayment Period, including the purchase price of any Mortgage Loans
in
such Loan Group repurchased pursuant to Section 3.12.
Principal
Prepayment in Full: Any Principal Prepayment made by a
Mortgagor of the entire principal balance of a Mortgage Loan.
Principal
Remittance Amount: For any Distribution Date and Loan Group, an
amount, not less than zero, equal to:
(a) the
sum, without duplication, of:
(1) all
principal collected or advanced on the Mortgage Loans in that Loan Group with
respect to the related Due Date and any Principal Prepayments not constituting
Net Prepayments and any advances with respect to payments on the Mortgage Loans
in that Loan Group not received by the related Determination Date,
(2) Net
Prepayments on the Mortgage Loans in that Loan Group for that Distribution
Date,
(3) the
Stated Principal Balance of each Mortgage Loan in that Loan Group that was
repurchased by the Seller or purchased by the Servicer with respect to that
Distribution Date,
(4) any
Substitution Adjustment Amounts in respect of the Mortgage Loans in that Loan
Group, and
(5) all
liquidation proceeds (to the extent such liquidation proceeds related to
principal) and all Subsequent Recoveries in respect of the Mortgage Loans in
that Loan Group received during the related Prepayment Period
minus
(b) all
non-recoverable Advances relating to principal on the Mortgage Loans in that
Loan Group and certain expenses reimbursed since the prior Due
Date.
Private
Certificates: As specified in the Preliminary
Statement.
34
Proprietary
Lease: For any Cooperative Unit, a lease or occupancy
agreement between a Cooperative Corporation and a holder of related Co-op
Shares.
Prospectus
Supplement: The Prospectus Supplement dated May 30,
2007, relating to the Offered Certificates, and any supplement
thereto.
PUD: Planned
Unit Development.
Purchase
Price: For any Mortgage Loan required to be purchased
by the Seller pursuant to Section 2.02 or 2.03 or purchased by the Servicer
pursuant to Section 3.12, the sum of
(i) 100%
of the unpaid principal balance of the Mortgage Loan on the date of the
purchase,
(ii) accrued
and unpaid interest on the Mortgage Loan at the applicable Mortgage Rate (or
at
the applicable Adjusted Mortgage Rate if (x) the purchaser is the Servicer
or
(y) if the purchaser is the Seller and the Seller is the Servicer) from the
date
through which interest was last paid by the Mortgagor to the Due Date in the
month in which the Purchase Price is to be distributed to Certificateholders,
net of any unreimbursed Advances made by the Servicer on the Mortgage Loan,
and
(iii) any
costs and damages incurred by the Trust Fund in connection with any violation
by
the Mortgage Loan of any predatory or abusive lending law.
If
the
Mortgage Loan is purchased pursuant to Section 3.12, the interest component
of the Purchase Price shall be computed (i) on the basis of the applicable
Adjusted Mortgage Rate before giving effect to the related modification and
(ii)
from the date to which interest was last paid to the date on which the Mortgage
Loan is assigned to the Servicer pursuant to Section 3.12.
Qualified
Insurer: A mortgage guaranty insurance company duly
qualified as such under the laws of the state of its principal place of business
and each state having jurisdiction over the insurer in connection with the
insurance policy issued by the insurer, duly authorized and licensed in such
states to transact a mortgage guaranty insurance business in such states and
to
write the insurance provided by the insurance policy issued by it, approved
as a
FNMA- or FHLMC-approved mortgage insurer or having a claims paying ability
rating of at least “AA” or equivalent rating by a nationally recognized
statistical rating organization. Any replacement insurer with respect
to a Mortgage Loan must have at least as high a claims paying ability rating
as
the insurer it replaces had on the Closing Date.
Rating
Agency: Each of the Rating Agencies specified in the
Preliminary Statement. If any of them or a successor is no longer in
existence, “Rating Agency” shall be the nationally recognized statistical rating
organization, or other comparable Person, identified as a “Rating Agency” in the
Underwriter’s Exemption and designated by the Depositor, notice of which
designation shall be given to the Trustee. References to a given
rating or rating category of a Rating Agency means the rating category without
giving effect to any modifiers.
Realized
Loss: With respect to each Liquidated Mortgage Loan, an
amount (not less than zero or more than the Stated Principal Balance of the
Mortgage Loan) as of the date of such liquidation, equal to (i) the Stated
Principal Balance of the Liquidated Mortgage Loan as of the date of such
liquidation, plus (ii) interest at the Adjusted Net Mortgage Rate from the
Due
Date as to which interest was last paid or advanced (and not reimbursed) to
Certificateholders up to the Due Date in the month in which Liquidation Proceeds
are required to be distributed on the Stated Principal Balance of such
Liquidated Mortgage Loan from time to time, minus (iii) the Liquidation
Proceeds, if any, received during the month in which such liquidation occurred,
to the extent applied as recoveries of interest at the Adjusted Net Mortgage
Rate and to principal of the Liquidated Mortgage Loan. With respect
to each Mortgage Loan that has become the subject of a Deficient Valuation,
if
the principal amount due under the related Mortgage Note has been reduced,
the
difference between the principal balance of the Mortgage Loan outstanding
immediately prior to such Deficient Valuation and the principal balance of
the
Mortgage Loan as reduced by the Deficient Valuation. With respect to
each Mortgage Loan which has become the subject of a Debt Service Reduction
and
any Distribution Date, the amount, if any, by which the principal portion of
the
related Scheduled Payment has been reduced.
35
To
the
extent the Servicer receives Subsequent Recoveries with respect to any Mortgage
Loan, the amount of the Realized Loss with respect to that Mortgage Loan will
be
reduced by such Subsequent Recoveries.
Recognition
Agreement: For any Cooperative Loan, an agreement
between the Cooperative Corporation and the originator of the Mortgage Loan
that
establishes the rights of the originator in the Cooperative
Property.
Record
Date: With respect to any Distribution Date and any
Definitive Certificate and the Delay Certificates, the close of business on
the
last Business Day of the month preceding the month of that Distribution
Date. With respect to any Distribution Date and the LIBOR
Certificates as long as they are Book-Entry Certificates, the Business Day
immediately prior to such Distribution Date.
Reference
Bank: As defined in Section 4.07.
Refinance
Loan: Any Mortgage Loan the proceeds of which are used
to refinance an Original Mortgage Loan.
Regular
Certificates: As specified in the Preliminary
Statement.
Regulation
AB: Subpart 229.1100 – Asset Backed Securities
(Regulation AB), 17 C.F.R. §§229.1100-229.1123, as such may be amended from time
to time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005))
or
by the staff of the Commission, or as may be provided by the Commission or
its
staff from time to time.
Relief
Act: The Servicemembers Civil Relief Act.
Relief
Act Reductions: With respect to any Distribution Date
and any Mortgage Loan as to which there has been a reduction in the amount
of
interest collectible thereon for the most recently ended calendar month as
a
result of the application of the Relief Act or any similar state or local laws,
the amount, if any, by which (i) interest collectible on such Mortgage Loan
for
the most recently ended calendar month is less than (ii) interest accrued
thereon for such month pursuant to the Mortgage Note.
REMIC: A
“real estate mortgage investment conduit” within the meaning of section 860D of
the Code.
REMIC
Cap: As defined in the Preliminary
Statement.
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.
36
REO
Property: A Mortgaged Property acquired by the Trust
Fund through foreclosure or deed-in-lieu of foreclosure in connection with
a
defaulted Mortgage Loan.
Reportable
Event: Any event required to be reported on Form 8-K,
and in any event, the following:
(a) entry
into a definitive agreement related to the Trust Fund, the Certificates or
the
Mortgage Loans, or an amendment to a Transaction Document, even if the Depositor
is not a party to such agreement (e.g., a servicing agreement with a servicer
contemplated by Item 1108(a)(3) of Regulation AB);
(b) termination
of a Transaction Document (other than by expiration of the agreement on its
stated termination date or as a result of all parties completing their
obligations under such agreement), even if the Depositor is not a party to
such
agreement (e.g., a servicing agreement with a servicer contemplated by Item
1108(a)(3) of Regulation AB);
(c) with
respect to the Servicer only, if the Servicer becomes aware of any bankruptcy
or
receivership with respect to the Seller, the Depositor, the Servicer, the
Trustee, the Swap Counterparty, any enhancement or support provider contemplated
by Items 1114(b) or 1115 of Regulation AB, or any other material party
contemplated by Item 1101(d)(1) of Regulation AB;
(d) with
respect to the Trustee, the Servicer and the Depositor only, the occurrence
of
an early amortization, performance trigger or other event, including an Event
of
Default under this Agreement;
(e) any
amendment to this Agreement;
(f) the
resignation, removal, replacement, substitution of the Servicer or the
Trustee;
(g) with
respect to the Servicer only, if the Servicer becomes aware that (i) any
material enhancement or support specified in Item 1114(a)(1) through (3) of
Regulation AB or Item 1115 of Regulation AB that was previously applicable
regarding one or more Classes of the Certificates has terminated other than
by
expiration of the contract on its stated termination date or as a result of
all
parties completing their obligations under such agreement; (ii) any material
enhancement specified in Item 1114(a)(1) through (3) of Regulation AB or Item
1115 of Regulation AB has been added with respect to one or more Classes of
the
Certificates; or (iii) any existing material enhancement or support specified
in
Item 1114(a)(1) through (3) of Regulation AB or Item 1115 of Regulation AB
with
respect to one or more Classes of the Certificates has been materially amended
or modified; and
(h) with
respect to the Trustee, the Servicer and the Depositor only, a required
distribution to Holders of the Certificates is not made as of the required
Distribution Date under this Agreement.
Reporting
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 Reporting Date shall be the Business Day preceding
the 18th day of the month.
Reporting
Subcontractor: With respect to the Servicer or the
Trustee, any Subcontractor determined by such Person pursuant to
Section 11.08(b) to be “participating in the servicing function” within the
meaning of Item 1122 of Regulation AB. References to a Reporting
Subcontractor shall refer only to the Subcontractor of such Person and shall
not
refer to Subcontractors generally.
37
Request
for Release: The Request for Release submitted by the
Servicer to the Trustee, substantially in the form of Exhibits M and N, as
appropriate.
Required
Insurance Policy: For any Mortgage Loan, any insurance
policy that is required to be maintained from time to time under this
Agreement.
Residual
Certificates: As specified in the Preliminary
Statement.
Responsible
Officer: When used with respect to the Trustee, any
Managing Director, any Director, Vice President, any Assistant Vice President,
any Associate, any Assistant Secretary, any Trust Officer, or any other officer
of the Trustee customarily performing functions similar to those performed
by
any of the above designated officers who at such time shall be officers to
whom,
with respect to a particular matter, the matter is referred because of the
officer’s knowledge of and familiarity with the particular subject and who has
direct responsibility for the administration of this Agreement.
Restricted
Classes: As defined in
Section 4.02(e).
Reuters
Page LIBOR01: The display page designated as the
“LIBOR01” page on Reuters (or such other page as may replace that page
on that
service for the purpose of displaying London inter-bank offered rates or prices
of major banks).
Rolling
Three Month Delinquency Rate: With respect to any
Distribution Date, an amount equal to the average of the Delinquency Rates
for
each of the three (or one and two, in the case of the first and second
Distribution Dates, respectively) immediately preceding months.
SAIF: The
Savings Association Insurance Fund, or any successor thereto.
Xxxxxxxx-Xxxxx
Certification: As defined in
Section 11.05.
S&P: Standard
& Poor’s, a division of The XxXxxx-Xxxx Companies, Inc. If
S&P is designated as a Rating Agency in the Preliminary Statement, for
purposes of Section 10.05(b) the address for notices to S&P shall be
Standard & Poor’s, a division of The XxXxxx-Xxxx Companies, Inc., 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Mortgage Surveillance
Monitoring, or any other address that S&P furnishes to the Depositor and the
Servicer.
Scheduled
Balance: Not applicable.
Scheduled
Classes: As specified in the Preliminary
Statement.
Scheduled
Payment: The Minimum Monthly Payment on a Mortgage Loan
due on any Due Date allocable to principal and/or interest on such Mortgage
Loan
which, unless otherwise specified herein, shall give effect to any related
Debt
Service Reduction and any Deficient Valuation that affects the amount of the
monthly payment due on such Mortgage Loan; provided, that if a Mortgage Loan
has
hit its Payment Cap, the Scheduled Payment on that Mortgage Loan will be the
Interest Only Monthly Payment.
Securities
Act: The Securities Act of 1933, as
amended.
Security
Agreement: For any Cooperative Loan, the agreement
between the owner of the related Co-op Shares and the originator of the related
Mortgage Note that defines the security interest in the Co-op
Shares and the related Proprietary Lease.
38
Seller: IndyMac
Bank, F.S.B., a federal savings bank, and its successors and assigns, in its
capacity as seller of the Mortgage Loans to the Depositor.
Senior
Certificate Group: As specified in the Preliminary
Statement.
Senior
Certificates: As specified in the Preliminary
Statement.
Senior
Credit Support Depletion Date: Not
applicable.
Senior
Enhancement Percentage: With respect to a Distribution
Date on or after the Stepdown Date a fraction (expressed as a
percentage):
(1) the
numerator of which is sum of the aggregate Class Certificate Balance of the
Subordinated Certificates and the Overcollateralized Amount (which, for purposes
of this definition only, shall not be less than zero) and
(2) the
denominator of which is the Pool Principal Balance as of the Due Date in the
prior month (after giving effect to Principal Prepayments in the Prepayment
Period related to that prior Due Date).
Senior
Principal Distribution Amount: For any Distribution
Date on or after the Stepdown Date (and so long as no Trigger Event is in
effect), an amount equal to the lesser of: (i) the Principal Distribution Amount
for that Distribution Date; and (ii) the excess of (a) the aggregate Class
Certificate Balance of the Senior Certificates immediately prior to that
Distribution Date over (b) the lesser of (x) the product of (1) 87.25% for
any
Distribution Date prior to the Distribution Date in June 2013 and 89.80% for
any
Distribution Date on or after the Distribution Date in June 2013 and (2) the
aggregate Stated Principal Balance of the Mortgage Loans as of the Due Date
in
the month prior to the month of that Distribution Date (after giving effect
to
Principal Prepayments in the Prepayment Period related to that prior Due Date)
and (y) the aggregate Stated Principal Balance of the Mortgage Loans as of
the
Due Date related to the month of that Distribution Date (after giving effect
to
Principal Prepayments in the Prepayment Period related to that prior Due Date),
minus the OC floor.
Servicer: IndyMac
Bank, F.S.B., a federal savings bank, and its successors and assigns, in its
capacity as servicer under this Agreement.
Servicer
Advance Date: As to any Distribution Date, 12:30
P.M. Pacific time on the Business Day preceding the Distribution
Date.
Servicing
Advances: All customary, reasonable, and necessary “out
of pocket” costs and expenses incurred in the performance by the Servicer of its
servicing obligations, including the cost of
(a) the
preservation, restoration, and protection of a Mortgaged Property,
(b) expenses
reimbursable to the Servicer pursuant to Section 3.12 and any enforcement
or judicial proceedings, including foreclosures,
(c) the
maintenance and liquidation of any REO Property,
(d) compliance
with the obligations under Section 3.10, and
39
(e) reasonable
compensation to the Servicer or its affiliates for acting as broker in
connection with the sale of foreclosed Mortgaged Properties and for performing
certain default management and other similar services (including appraisal
services) in connection with the servicing of defaulted Mortgage
Loans. For purposes of this clause (e), only costs and expenses
incurred in connection with the performance of activities generally considered
to be outside the scope of customary servicing or master servicing duties shall
be treated as Servicing Advances.
Servicing
Criteria: The “servicing criteria” set forth in Item
1122(d) of Regulation AB.
Servicing
Fee: As to each Mortgage Loan and any Distribution
Date, one month’s interest at the applicable Servicing Fee Rate on the Stated
Principal Balance of the Mortgage Loan as of the Due Date in the month preceding
the month of such Distribution Date (after giving effect to Principal
Prepayments in the Prepayment Period related to that prior Due Date), or,
whenever a payment of interest accompanies a Principal Prepayment in Full made
by the Mortgagor, interest at the Servicing Fee Rate on the Stated Principal
Balance of the Mortgage Loan for the period covered by the payment of interest,
subject to reduction as provided in Section 3.15.
Servicing
Fee Rate: For each Mortgage Loan, 0.375% per
annum.
Servicing
Officer: Any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and facsimile signature appear on a list of servicing officers furnished
to
the Trustee by the Servicer on the Closing Date pursuant to this Agreement,
as
the list may from time to time be amended.
Servicing
Standard: That degree of skill and care exercised by
the Servicer with respect to mortgage loans comparable to the Mortgage Loans
serviced by the Servicer for itself or others.
Shift
Percentage: Not applicable.
Six-Month
LIBOR Index: The average of the London interbank
offered rates for six month U.S. dollar deposits in the London market, generally
as set forth in either The Wall Street Journal or some other source generally
accepted in the residential mortgage loan origination business and specified
in
the related Mortgage Note or, if such rate ceases to be published in The Wall
Street Journal or becomes unavailable for any reason, then based upon a new
index selected by the Servicer, based on comparable information, in each case,
as most recently announced as of either 45 days prior to, or the first Business
Day of the month immediately preceding the month of, such Adjustment
Date.
Soft
Prepayment Charge: As to a Mortgage Loan, any charge
payable by a Mortgagor in connection with certain partial Principal Prepayments
and all Principal Prepayments in Full made within the related Prepayment Charge
Period other than as a result of selling the Mortgaged Property, the Soft
Prepayment Charges with respect to each applicable Mortgage Loan so held by
the
Trust Fund being identified in the Mortgage Loan Schedule.
Special
Hazard Coverage Termination Date: Not
applicable.
Special
Hazard Loss: Not applicable.
Special
Hazard Loss Coverage Amount: Not
applicable.
Special
Hazard Mortgage Loan: Not applicable.
40
Startup
Day: The Closing Date.
Stated
Principal Balance: As to any Mortgage Loan and Due
Date, the unpaid principal balance of such Mortgage Loan as of such Due Date,
as
specified in the amortization schedule at the time relating thereto (before
any
adjustment to such amortization schedule by reason of any moratorium or similar
waiver or grace period) after giving effect to the sum of: (i) the
payment of principal due on such Due Date and irrespective of any delinquency
in
payment by the related Mortgagor and (ii) any Liquidation Proceeds allocable
to
principal received in the prior calendar month and any Principal Prepayments
received through the last day of the related Prepayment Period, in each case,
with respect to such Mortgage Loan and increased by any Deferred Interest added
to the principal balance of that Mortgage Loan on or prior to such Due
Date.
Stepdown
Date: The earlier to occur of (x) the Distribution Date
following the Distribution Date on which the aggregate Class Certificate Balance
of the Senior Certificates is reduced to zero and (y) the later to occur of
(i)
the Distribution Date in June 2010 and (ii) the first Distribution Date on
which
the Senior Enhancement Percentage is equal to or greater than (a) 12.75% on
any
Distribution Date prior to the Distribution Date in June 2013 and (b) 10.20%
on
any Distribution Date on or after the Distribution Date in June
2013.
Stepdown
Target Subordinated Percentage: For any Class of
Subordinated Certificates, the respective percentages indicated in the following
table:
Stepdown
Target
Subordination
Percentage
(1)
|
Stepdown
Target
Subordination
Percentage
(2)
|
||
Class
M-1
|
10.250%
|
8.200%
|
|
Class
M-2
|
8.625%
|
6.900%
|
|
Class
M-3
|
7.250%
|
5.800%
|
|
Class
M-4
|
6.000%
|
4.800%
|
|
Class
M-5
|
4.750%
|
3.800%
|
|
Class
M-6
|
3.875%
|
3.100%
|
|
Class
M-7
|
3.000%
|
2.400%
|
|
Class
M-8
|
2.125%
|
1.700%
|
|
Class
M-9
|
1.250%
|
1.000%
|
________
(1) For
any Distribution Date occurring on or after the Distribution Date occurring
in
June 2010 and prior to the Distribution Date occurring in June
2013.
(2) For
any Distribution Date occurring on or after the Distribution Date occurring
in
June 2013.
Subcontractor: Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to
the Mortgage Loans under the direction or authority of the Servicer or the
Trustee, as the case may be.
Subordinated
Certificates: As specified in the Preliminary
Statement.
Subordinated
Class Principal Distribution Target Amount: For any
Class of Subordinated Certificates and Distribution Date will equal the excess
of:
41
(1) the
sum of: (a) the aggregate Class Certificate Balance of the Senior Certificates
(after taking into account the distribution of the Senior Principal Distribution
Amount for that Distribution Date), (b) the aggregate Class Certificate Balance
of any Class(es) of Subordinated Certificates that are senior to the subject
Class (in each case, after taking into account distribution of the Subordinated
Class Principal Distribution Target Amount(s) for such more senior Class(es)
of
Certificates for such Distribution Date), and (c) the Class Certificate Balance
of the subject Class of Subordinated Certificates immediately prior to such
Distribution Date over
(2) the
lesser of (a) the product of (x) 100% minus the Stepdown Target Subordination
Percentage for the subject Class of Certificates and (y) the aggregate Stated
Principal Balance of the Mortgage Loans for that Distribution Date and (b)
the
aggregate Stated Principal Balance of the Mortgage Loans for that Distribution
Date minus the OC Floor;
provided,
however, that if such Class of Subordinated Certificates is the only class
of
Subordinated Certificates outstanding on such Distribution Date, that Class
will
be entitled to receive the entire remaining Principal Distribution Amount until
its Class Certificate Balance is reduced to zero.
Subsequent
Recoveries: As to any Distribution Date, with respect
to a Liquidated Mortgage Loan that resulted in a Realized Loss in a prior
calendar month, unexpected amounts received by the Servicer (net of any related
expenses permitted to be reimbursed pursuant to Section 3.09) specifically
related to such Liquidated Mortgage Loan.
Substitute
Mortgage Loan: A Mortgage Loan substituted by the
Seller for a Deleted Mortgage Loan that must, on the date of substitution,
as
confirmed in a Request for Release, substantially in the form of Exhibit
M,
(i) have
a Stated Principal Balance, after deduction of the principal portion of the
Scheduled Payment due in the month of substitution, not in excess of, and not
more than 10% less than, the Stated Principal Balance of the Deleted Mortgage
Loan (unless the amount of any shortfall is deposited by the Seller in the
Certificate Account and held for distribution to the Certificateholders on
the
related Distribution Date);
(ii) have
a Mortgage Rate no lower than and not more than 1% per annum higher than the
Deleted Mortgage Loan;
(iii) have
a Maximum Mortgage Rate not more than 1% per annum higher than and not lower
than the Maximum Mortgage Rate of the Deleted Mortgage Loan,
(iv) have
the same Mortgage Index and interval between Adjustment Dates as the Deleted
Mortgage Loan and a Gross Margin not more than 1% per annum higher than, and
not
lower than that of the Deleted Mortgage Loan; provided that
Substitute Mortgage Loans with remaining terms to maturity greater than that
of
the Deleted Mortgage Loan may not exceed 5% of the Cut-off Date Pool Principal
Balance.
(v) have
the same negative amortization limit, payment adjustment intervals and recast
provisions as that of the Deleted Mortgage Loan;
(vi) have
a Loan-to-Value Ratio no higher than that of the Deleted Mortgage
Loan;
(vii) have
a remaining term to maturity no greater than one year more than (and not more
than one year less than) that of the Deleted Mortgage Loan;
42
(viii) not
be a Cooperative Loan unless the Deleted Mortgage Loan was a Cooperative Loan;
and
(ix) comply
with each representation and warranty in Section 2.03.
Substitution
Adjustment Amount: As defined in
Section 2.03.
Supplemental
Interest Reserve Fund: The separate Eligible Account or
Accounts created and maintained by the Supplemental Interest Trustee pursuant
to
Section 3.06(i) with a depository institution in the name of the
Supplemental Interest Trustee for the benefit of the Supplemental Interest
Trustee on behalf of the Holders of the Offered Certificates and the Class
C
Certificates and designated “IndyMac Bank, F.S.B., in trust for the registered
Holders of IndyMac INDX Mortgage Loan Trust 2007-FLX4, Mortgage Pass-Through
Certificates, Series 2007-FLX4.”
Supplemental
Interest Trust: The trust fund established pursuant to
Section 4.08.
Supplemental
Interest Trustee: Deutsche Bank National Trust Company,
not in its individual capacity, but solely in its capacity as trustee for the
benefit of the Holders of the LIBOR Certificates under this Agreement, and
any
successor thereto, and any corporation or national banking association resulting
from or surviving any consolidation or merger to which it or its successors
may
be a party and any successor trustee as may from time to time be serving as
successor trustee under this Agreement.
Suspension
Notification: Notification to the Commission of the
suspension of the Trust Fund’s obligation to file reports pursuant to
Section 15(d) of the Exchange Act.
Swap
Account: The separate Eligible Account or Accounts
created and maintained by the Swap Trustee pursuant to Section 3.06(g) with
a depository institution in the name of the SwapTrustee for the benefit of
the
SwapTrustee on behalf of the Holders of the Offered Certificates and the Class
C
Certificates and designated “IndyMac Bank, F.S.B., in trust for the registered
Holders of IndyMac INDX Mortgage Loan Trust 2007-FLX4, Mortgage Pass-Through
Certificates, Series 2007-FLX4.”
Swap
Adjustment Rate: As to any Distribution Date and Loan
Group, the product of (I) a fraction, expressed as a percentage, (A) the
numerator of which is equal to the product of (1) the product of (i) the sum
of
(a) the Net Swap Payment and (b) any Swap Termination Payment (other than a
Swap
Termination Payment due to a Swap Counterparty Trigger Event) and (ii) a
fraction, the numerator of which is 360 and the denominator of which is the
actual number of days in the related Interest Accrual Period and (2) the
Allocable Portion for that Loan Group and (B) the denominator of which is equal
to the aggregate Stated Principal Balance of the Mortgage Loans in that Loan
Group as of the Due Date in the prior calendar month (after giving effect to
principal prepayments received in the Prepayment Period related to that prior
Due Date) and (II) 12.
Swap
Confirmation: The agreement between the Swap Trustee on
behalf of IndyMac INDX Mortgage Loan Trust 2007-FLX4 and the Swap Counterparty
evidencing the terms of the Swap Contract.
Swap
Contract: With respect to the LIBOR Certificates, the
interest rate swap transaction evidenced by the related Confirmation, a form
of
which is attached to this Agreement as Exhibit P-2.
Swap
Contract Termination Date: The Distribution Date in May
2014.
Swap
Contract Notional Balance: As set forth in the Swap
Table in the Prospectus Supplement.
43
Swap
Counterparty: Xxxxxx
Xxxxxxx Capital
Services Inc.
Swap
Counterparty Trigger Event: Either (i) an “Event of
Default” under the Swap Contract with respect to which the Swap Counterparty is
the sole ‘Defaulting Party” (as defined in the Swap Contract) or (ii) a
“Termination Event” (other than an Illegality or a Tax Event, as such terms are
defined in the Swap Contract) or “Additional Termination Event” under the Swap
Contract with respect to which the Swap Counterparty is the sole “Affected
Party” (as defined in the Swap Contract).
Swap
Report: The report to be delivered by the Determination
Date prior to each Distribution Date by the Swap Counterparty to the Swap
Trustee containing the amount of any Net Swap Payment payable by the Swap Trust
or the Swap Counterparty to the other party, as the case may be, with respect
to
the Swap Contract for that Distribution Date.
Swap
Table: The table indicating the Swap Contract Notional
Balance set forth in the Prospectus Supplement.
Swap
Termination Payment : The payment payable to either
party under the Swap Contract due to an early termination of such Swap
Contract.
Swap
Trust: The trust fund established pursuant to Section
4.08.
Swap
Trustee: Deutsche Bank National Trust Company, not in
its individual capacity, but solely in its capacity as trustee for the benefit
of the Holders of the LIBOR Certificates under this Agreement, and any successor
thereto, and any corporation or national banking association resulting from
or
surviving any consolidation or merger to which it or its successors may be
a
party and any successor trustee as may from time to time be serving as successor
trustee under this Agreement.
Targeted
Balance: Not applicable.
Targeted
Principal Classes: As specified in the
Preliminary Statement.
Three-Month
Delinquency Rate: With respect to any Distribution Date
on or after the Stepdown Date, a fraction, expressed as a percentage, the
numerator of which is the aggregate Stated Principal Balance for such
Distribution Date of all Mortgage Loans 90 or more days delinquent as of the
close of business on the last day of the calendar month preceding such
Distribution Date (including Mortgage Loans in foreclosure, bankruptcy and
REO
Properties) and the denominator of which is the aggregate Stated Principal
Balance for such Distribution Date of the Mortgage Loans as of the related
Due
Date (after giving effect to Principal Prepayments received in the related
Prepayment Period, the principal portion of Liquidation Proceeds and any
Subsequent Recoveries).
Transaction
Documents: This Agreement, the Swap Contract,
the Corridor Contract and any other document or agreement entered into in
connection with the Trust Fund, the Certificates or the Mortgage
Loans.
Transfer: Any
direct or indirect transfer or sale of any Ownership Interest in a Residual
Certificate.
Trigger
Event: With respect to a Distribution Date on or after
the Stepdown Date either a Delinquency Trigger Event is in effect with respect
to that Distribution Date or a Cumulative Loss Trigger Event is in effect with
respect to that Distribution Date.
44
Trust
Fund: The corpus of the trust created under
this Agreement consisting of
(i) the
Mortgage Loans and all interest and principal received on them after the Cut-off
Date, other than amounts due on the Mortgage Loans by the Cut-off
Date;
(ii) the
Certificate Account, the Distribution Account, the Carryover Reserve Fund and
all amounts deposited therein pursuant to this Agreement (including amounts
received from the Depositor on the Closing Date that will be deposited in the
Certificate Account pursuant to Section 2.01);
(iii) property
that secured a Mortgage Loan and has been acquired by foreclosure, deed-in-lieu
of foreclosure, or otherwise;
(iv) the
right to collect any amounts under any mortgage insurance policies covering
any
Mortgage Loan and any collections received under any mortgage insurance policies
covering any Mortgage Loan; and
(v) all
proceeds of the conversion, voluntary or involuntary, of any of the
foregoing.
Trustee: Deutsche
Bank National Trust Company and its successors and, if a successor trustee
is
appointed under this Agreement, the successor.
Trustee
Fee: The fee payable to the Trustee on each
Distribution Date for its services as Trustee hereunder, in an amount equal
to
one-twelfth of the Trustee Fee Rate multiplied by the aggregate Stated Principal
Balance of the Mortgage Loans as of the Due Date in the month preceding the
month of such Distribution Date (after giving effect to Principal Prepayments
in
the Prepayment Period related to that prior Due Date).
Trustee
Fee Rate: 0.0065% per annum.
The
terms
“United States,” “State,” and
“International Organization” have the meanings in
section 7701
of the Code or successor provisions. A corporation will not be
treated as an instrumentality of the United States or of any State or political
subdivision thereof for these purposes if all of its activities are subject
to
tax and, with the exception of the Federal Home Loan Mortgage Corporation,
a
majority of its board of directors is not selected by such government
unit.
UCC: The
Uniform Commercial Code for the State of New York.
Underwriter’s
Exemption: Prohibited Transaction Exemption 2002-41, 67
Fed. Reg. 54487 (2002) (or any successor thereto), or any
substantially similar administrative exemption granted by the U.S. Department
of
Labor.
United
States Person or U.S. Person:
(i) A
citizen or resident of the United States;
(ii) a
corporation (or entity treated as a corporation for tax purposes) created or
organized in the United States or under the laws of the United States or of
any
state thereof, including, for this purpose, the District of
Columbia;
45
(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
Realized Loss Amount: For any Class of Certificates,
(x) the portion of the aggregate Applied Realized Loss Amount previously
allocated to that Class remaining unpaid from prior Distribution Dates minus
(y)
any increase in the Class Certificate Balance of that Class due to the
allocation of Subsequent Recoveries to the Class Certificate Balance of that
Class.
U.S.A.
Patriot Act: The Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act
of
2001.
Voting
Rights: The portion of the voting rights of all of the
Certificates that is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to the Holders
of
the Class A-R Certificates and (b) the remaining Voting Rights shall be
allocated among the remaining Classes of Certificates in proportion to their
respective Class Certificate Balances. Voting Rights allocated to a
Class of Certificates shall be further allocated among the Certificateholders
of
such Class based on Percentage Interest.
Weighted
Average Adjusted Net Mortgage Rate: For any
Distribution Date, the average of the Adjusted Net Mortgage Rate of each
Mortgage Loan, weighted on the basis of its Stated Principal Balance as of
the
Due Date in the prior month (after giving effect to Principal Prepayments in
the
Prepayment Period related to such prior Due 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.
46
(c) Any
party may execute any of the requirements under this Agreement either directly
or through others, and the right to cause something to be done rather than
doing
it directly shall be implicit in every requirement under this
Agreement. Unless a provision is restricted as to time or limited as
to frequency, all provisions under this Agreement are implicitly available
and
things may happen from time to time.
(d) The
term “including” and all its variations mean “including but not limited to.”
Except when used in conjunction with the word “either,” the word “or” is always
used inclusively (for example, the phrase “A or B” means “A or B or both,” not
“either A or B but not both”).
(e) A
reference to “a [thing]” or “any [of a thing]” does not imply the existence or
occurrence of the thing referred to even though not followed by “if any,” and
“any [of a thing]” is any of it. A reference to the plural of
anything as to which there could be either one or more than one does not imply
the existence of more than one (for instance, the phrase “the obligors on a
note” means “the obligor or obligors on a note”). “Until [something
occurs]” does not imply that it must occur, and will not be modified by the word
“unless.” The word “due” and the word “payable” are each used in the sense that
the stated time for payment has passed. The word “accrued” is used in
its accounting sense, i.e., an amount paid is no longer accrued. In
the calculation of amounts of things, differences and sums may generally result
in negative numbers, but when the calculation of the excess of one thing over
another results in zero or a negative number, the calculation is disregarded
and
an “excess” does not exist. Portions of things may be expressed as
fractions or percentages interchangeably.
(f) All
accounting terms used in an accounting context and not otherwise defined, and
accounting terms partly defined in this Agreement, to the extent not completely
defined, shall be construed in accordance with generally accepted accounting
principles. To the extent that the definitions of accounting terms in
this Agreement are inconsistent with their meanings under generally accepted
accounting principles, the definitions contained in this Agreement shall
control. Capitalized terms used in this Agreement without definition
that are defined in the Uniform Commercial Code are used in this Agreement
as
defined in the Uniform Commercial Code.
(g) In
the computation of a period of time from a specified date to a later specified
date or an open-ended period, the words “from” and “beginning” mean “from and
including,” the word “after” means “from but excluding,” the words “to” and
“until” mean “to but excluding,” and the word “through” means “to and
including.” Likewise, in setting deadlines or other periods, “by” means “by.”
The words “preceding,” “following,” and words of similar import, mean
immediately preceding or following. References to a month or a year
refer to calendar months and calendar years.
(h) Any
reference to the enforceability of any agreement against a party means that
it
is enforceable, subject as to enforcement against the party, to applicable
bankruptcy, insolvency, reorganization, and other similar laws of general
applicability relating to or affecting creditors’ rights and to general equity
principles.
47
Article
Two
CONVEYANCE
OF
MORTGAGE
LOANS;
REPRESENTATIONS
AND
WARRANTIES
Section
2.01. Conveyance
of Mortgage Loans.
(a) The
Seller, concurrently with the execution and delivery of this Agreement, hereby
transfers to the Depositor, without recourse, all the interest of the Seller
in
each Mortgage Loan, including all interest and principal received or receivable
by the Seller on each Mortgage Loan after the Cut-off Date and all interest
and
principal payments on each Mortgage Loan received before the Cut-off Date for
installments of interest and principal due after the Cut-off Date but not
including payments of principal and interest due by the Cut-off Date. By the
Closing Date, the Seller shall deliver to the Depositor or, at the Depositor’s
direction, to the Trustee or other designee of the Depositor, the Mortgage
File
for each Mortgage Loan listed in the Mortgage Loan Schedule (except that, in
the
case of Mortgage Loans that are Delay Delivery Mortgage Loans, such delivery
may
take place within five Business Days of the Closing Date) as of the Closing
Date. The delivery of the Mortgage Files shall be made against
payment by the Depositor of the purchase price, previously agreed to by the
Seller and Depositor, for the Mortgage Loans. With respect to any
Mortgage Loan that does not have a first payment date on or before the Due
Date
in the month of the first Distribution Date, the Seller shall deposit into
the
Distribution Account on the first Distribution Account Deposit Date an amount
equal to one month’s interest at the related Adjusted Mortgage Rate on the
Cut-off Date Principal Balance of such Mortgage Loan. On the Closing
Date the Depositor shall also deposit or shall cause to be deposited (x) $1,000
into the Carryover Reserve Fund for the benefit of the LIBOR
Certificates and (y) $100 into the Certificate Account for the
benefit of the Class P Certificates.
(b) The
Depositor, concurrently with the execution and delivery of this Agreement,
hereby (i) transfers to the Trustee for the benefit of the Certificateholders,
without recourse, all the interest of the Depositor in the Trust Fund, together
with the Depositor’s right to require the Seller to cure any breach of a
representation or warranty made in this Agreement by the Seller or to repurchase
or substitute for any affected Mortgage Loan in accordance with this
Agreement. The Depositor hereby directs the Swap Trustee and the
Supplemental Interest Trustee to execute the Swap Contract and the Corridor
Contract, respectively.
(c) In
connection with the transfer and assignment of each Mortgage Loan, the Depositor
has delivered (or, in the case of the Delay Delivery Mortgage Loans, will
deliver to the Trustee within the time periods specified in the definition
of
Delay Delivery Mortgage Loans), for the benefit of the Certificateholders the
following documents or instruments with respect to each Mortgage Loan so
assigned:
(i) The
original Mortgage Note, endorsed by manual or facsimile signature in blank
in
the following form: “Pay to the order of _______________
______________without recourse,” with all intervening endorsements showing a
complete chain of endorsement from the originator to the Person endorsing the
Mortgage Note (each endorsement being sufficient to transfer all interest of
the
party so endorsing, as noteholder or assignee thereof, in that Mortgage Note)
or
a lost note affidavit for any Lost Mortgage Note from the Seller stating that
the original Mortgage Note was lost or destroyed, together with a copy of the
Mortgage Note.
(ii) Except
as provided below and for each Mortgage Loan that is not a MERS Mortgage Loan,
the original recorded Mortgage or a copy of such Mortgage certified by the
Seller as being a true and complete copy of the Mortgage (or, in the case of
a
Mortgage for which the related Mortgaged Property is located in the Commonwealth
of Puerto Rico, a true copy of the Mortgage certified as such by the applicable
notary) and in the case of each MERS Mortgage Loan, the original Mortgage,
noting the presence of the MIN of the Mortgage Loans and either language
indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM
Loan or if the Mortgage Loan was not a MOM Loan at origination, the original
Mortgage and the assignment thereof to MERS, with evidence of recording
indicated thereon, or a copy of the Mortgage certified by the public recording
office in which such Mortgage has been recorded.
48
(iii) In
the case of a Mortgage Loan that is not a MERS Mortgage Loan, a duly executed
assignment of the Mortgage (which may be included in a blanket assignment or
assignments), together with, except as provided below, all interim recorded
assignments of the mortgage (each assignment, when duly and validly completed,
to be in recordable form and sufficient to effect the assignment of and transfer
to its assignee of the Mortgage to which the assignment relates). If
the related Mortgage has not been returned from the applicable public recording
office, the assignment of the Mortgage may exclude the information to be
provided by the recording office. The assignment of Mortgage need not
be delivered in the case of a Mortgage for which the related Mortgage Property
is located in the Commonwealth of Puerto Rico.
(iv) The
original or copies of each assumption, modification, written assurance, or
substitution agreement.
(v) Except
as provided below, the original or duplicate original lender’s title policy and
all its riders.
(vi) The
originals of the following documents for each Cooperative Loan:
(A) the
Co-op Shares, together with a stock power in blank;
(B) the
executed Security Agreement;
(C) the
executed Proprietary Lease;
(D) the
executed Recognition Agreement;
(E) the
executed UCC-1 financing statement that has been filed in all places required
to
perfect the Seller’s interest in the Co-op Shares and the Proprietary Lease with
evidence of recording on it; and
(F) executed
UCC-3 financing statements or other appropriate UCC financing statements
required by state law, evidencing a complete and unbroken line from the
mortgagee to the Trustee with evidence of recording thereon (or in a form
suitable for recordation).
In
addition, in connection with the assignment of any MERS Mortgage Loan, the
Seller agrees that it will cause, at the Seller’s expense, the MERS® System to
indicate that the Mortgage Loans sold by the Seller to the Depositor have been
assigned by the Seller to the Trustee in accordance with this Agreement for
the
benefit of the Certificateholders by including (or deleting, in the case of
Mortgage Loans that are repurchased in accordance with this Agreement) in such
computer files the information required by the MERS® System to identify the
series of the Certificates issued in connection with such Mortgage
Loans. The Seller further agrees that it will not, and will not
permit the Servicer to, and the Servicer agrees that it will not, alter the
information referenced in this paragraph with respect to any Mortgage Loan
sold
by the Seller to the Depositor during the term of this Agreement unless and
until such Mortgage Loan is repurchased in accordance with the terms of this
Agreement.
49
In
the
event that in connection with any Mortgage Loan that is not a MERS Mortgage
Loan
the Depositor cannot deliver (a) the original recorded Mortgage, (b) all interim
recorded assignments or (c) the lender’s title policy (together with all riders
thereto) satisfying the requirements of clause (ii), (iii) or (v) above,
respectively, concurrently with the execution and delivery of this Agreement
because such document or documents have not been returned from the applicable
public recording office in the case of clause (ii) or (iii) above, or because
the title policy has not been delivered to either the Servicer or the Depositor
by the applicable title insurer in the case of clause (v) above, then the
Depositor shall promptly deliver to the Trustee, in the case of clause (ii)
or
(iii) above, the original Mortgage or the interim assignment, as the case may
be, with evidence of recording indicated on when it is received from the public
recording office, or a copy of it, certified, if appropriate, by the relevant
recording office and in the case of clause (v) above, the original or a copy
of
a written commitment or interim binder or preliminary report of title issued
by
the title insurance or escrow company, with the original or duplicate copy
thereof to be delivered to the Trustee upon receipt thereof. The
delivery of the original Mortgage Loan and each interim assignment or a copy
of
them, certified, if appropriate, by the relevant recording office, shall not
be
made later than one year following the Closing Date, or, in the case of clause
(v) above, later than 120 days following the Closing Date. If the
Depositor is unable to deliver each Mortgage by that date and each interim
assignment because any documents have not been returned by the appropriate
recording office, or, in the case of each interim assignment, because the
related Mortgage has not been returned by the appropriate recording office,
the
Depositor shall deliver the documents to the Trustee as promptly as possible
upon their receipt and, in any event, within 720 days following the Closing
Date.
The
Depositor shall forward to the Trustee (a) from time to time additional original
documents evidencing an assumption or modification of a Mortgage Loan and (b)
any other documents required to be delivered by the Depositor or the Servicer
to
the Trustee. If the original Mortgage is not delivered and in
connection with the payment in full of the related Mortgage Loan the public
recording office requires the presentation of a “lost instruments affidavit and
indemnity” or any equivalent document, because only a copy of the Mortgage can
be delivered with the instrument of satisfaction or reconveyance, the Servicer
shall execute and deliver the required document to the public recording
office. If a public recording office retains the original recorded
Mortgage or if a Mortgage is lost after recordation in a public recording
office, the Seller shall deliver to the Trustee a copy of the Mortgage certified
by the public recording office to be a true and complete copy of the original
recorded Mortgage.
As
promptly as practicable after any transfer of a Mortgage Loan under this
Agreement, and in any event within thirty days after the transfer, the Trustee
shall (i) affix the Trustee’s name to each assignment of Mortgage, as its
assignee, and (ii) cause to be delivered for recording in the appropriate public
office for real property records the assignments of the Mortgages to the
Trustee, except that, if the Trustee has not received the information required
to deliver any assignment of a Mortgage for recording, the Trustee shall deliver
it as soon as practicable after receipt of the needed information and in any
event within thirty days.
If
any
Mortgage Loans have been prepaid in full as of the Closing Date, the Depositor,
in lieu of delivering the above documents to the Trustee, will deposit in the
Certificate Account the portion of the prepayment that is required to be
deposited in the Certificate Account pursuant to Section 3.06.
50
Notwithstanding
anything to the contrary in this Agreement, within five Business Days after
the
Closing Date, the Seller shall either
(x) deliver
to the Trustee the Mortgage File as required pursuant to this Section 2.01
for each Delay Delivery Mortgage Loan or
(y) (A)
repurchase the Delay Delivery Mortgage Loan or (B) substitute the Substitute
Mortgage Loan for a Delay Delivery Mortgage Loan, which repurchase or
substitution shall be accomplished in the manner and subject to the conditions
in Section 2.03 (treating each such Delay Delivery Mortgage Loan as a
Deleted Mortgage Loan for purposes of such Section 2.03);
provided,
however, that if the Seller fails to deliver a Mortgage File for any
Delay Delivery Mortgage Loan within the period specified herein, the Seller
shall use its best reasonable efforts to effect a substitution, rather than
a
repurchase of, such Deleted Mortgage Loan and provided further that the cure
period provided for in Section 2.02 or in Section 2.03 shall not apply
to the initial delivery of the Mortgage File for such Delay Delivery Mortgage
Loan, but rather the Seller shall have five (5) Business Days to cure such
failure to deliver. At the end of such period, the Trustee shall send
a Delay Delivery Certification for the Delay Delivery Mortgage Loans delivered
during such period in accordance with the provisions of
Section 2.02.
(d) Notwithstanding
the foregoing, however, for administrative convenience and facilitation of
servicing and to reduce closing costs, the assignments of Mortgage shall not
be
required to be submitted for recording (except with respect to any Mortgage
Loan
located in Maryland) unless such failure to record would, as certified to the
Trustee in writing by the Servicer, result in a withdrawal or a downgrading
by
any Rating Agency of the rating on any Class of Certificates; provided, however,
that each assignment of Mortgage shall be submitted for recording by the Seller
(at the direction of the Servicer) in the manner described above, at no expense
to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable
direction by the Holders of Certificates entitled to at least 25% of the Voting
Rights, (ii) the occurrence of a bankruptcy, insolvency or foreclosure relating
to the Seller, (iii) the occurrence of a servicing transfer as described in
Section 7.02 hereof and (iv) if the Seller is not the Servicer and with respect
to any one assignment or Mortgage, the occurrence of a bankruptcy, insolvency
or
foreclosure relating to the Mortgagor under the related
Mortgage. Notwithstanding the foregoing, if the Servicer is unable to
pay the cost of recording the assignments of Mortgage, such expense shall be
paid by the Trustee and shall be reimbursable out of the Distribution
Account.
(e) The
Seller agrees to treat the transfer of the Mortgage Loans to the Depositor
as a
sale for all tax, accounting, and regulatory purposes.
(f) No
Mortgage Loan shall be included in the Trust Fund that is (i) a “High-Cost Home
Loan” as defined in the New Jersey Ownership Act effective November 27, 2003,
(ii) a “High-Cost Home Loan” as defined in the New Mexico Home Loan Protection
Act effective January 1, 2004, (iii) a “High-Cost Home Loan” as defined in the
Massachusetts Predatory Home Loan Practices Act or (iv) a “High-Cost Home Loan”
as defined by the Indiana High Cost Home Loan Law effective January 1,
2005.
Section
2.02. Acceptance
by the Trustee of the Mortgage Loans.
The
Trustee acknowledges receipt of the documents identified in the Initial
Certification in the form of Exhibit G-1, and declares that it holds and will
hold such documents and the other documents delivered to it constituting the
Mortgage Files for the Mortgage Loans, and that it holds or will hold such
other
assets as are included in the Trust Fund, in trust for the exclusive use and
benefit of all present and future Certificateholders.
51
The
Trustee acknowledges that it will maintain possession of the related Mortgage
Notes in the State of California, unless otherwise permitted by the Rating
Agencies. The Trustee agrees to execute and deliver on the Closing
Date to the Depositor, the Servicer and the Seller an Initial Certification
in
the form of Exhibit G-1. Based on its review and examination, and
only as to the documents identified in such Initial Certification, the Trustee
acknowledges that such documents appear regular on their face and relate to
such
Mortgage Loans. The Trustee shall be under no duty or obligation to
inspect, review or examine said documents, instruments, certificates or other
papers to determine that the same are genuine, enforceable or appropriate for
the represented purpose or that they have actually been recorded in the real
estate records or that they are other than what they purport to be on their
face.
By
the
thirtieth day after the Closing Date (or if that day is not a Business Day,
the
succeeding Business Day), the Trustee shall deliver to the Depositor, the
Servicer, and the Seller a Delay Delivery Certification with respect to the
Mortgage Loans substantially in the form of Exhibit G-3, with any applicable
exceptions noted thereon.
By
the
ninetieth day after the Closing Date (or if that day is not a Business Day,
the
succeeding Business Day), the Trustee shall deliver to the Depositor, the
Servicer and the Seller a Final Certification with respect to the Mortgage
Loans
in the form of Exhibit H-1, with any applicable exceptions noted
thereon.
If,
in
the course of its review, the Trustee finds any document constituting a part
of
a Mortgage File that does not meet the requirements of Section 2.01, the
Trustee shall list such as an exception in the Final
Certification. The Trustee shall not make any determination as to
whether (i) any endorsement is sufficient to transfer all interest of the party
so endorsing, as noteholder or assignee thereof, in that Mortgage Note or (ii)
any assignment is in recordable form or is sufficient to effect the assignment
of and transfer to the assignee thereof under the mortgage to which the
assignment relates. The Seller shall promptly correct any defect that
materially and adversely affects the interests of the Certificateholders within
90 days from the date it was so notified of the defect and, if the Seller does
not correct the defect within that period, the Seller shall either (a)
substitute for the related Mortgage Loan a Substitute Mortgage Loan, which
substitution shall be accomplished in the pursuant Section 2.03, or (b)
purchase the Mortgage Loan at its Purchase Price from the Trustee within 90
days
from the date the Seller was notified of the defect in writing.
If
a
substitution or purchase of a Mortgage Loan pursuant to this provision is
required because of a delay in delivery of any documents by the appropriate
recording office, or there is a dispute between either the Servicer or the
Seller and the Trustee over the location or status of the recorded document,
then the substitution or purchase shall occur within 720 days from the Closing
Date. In no other case may a substitution or purchase occur more than
540 days from the Closing Date. No substitution is permitted to be
made in any calendar month after the Determination Date for the
month.
The
Purchase Price for any Mortgage Loan shall be deposited by the Seller in the
Certificate Account by the Distribution Account Deposit Date for the
Distribution Date in the month following the month of repurchase and, upon
receipt of the deposit and certification with respect thereto in the form of
Exhibit N, the Trustee shall release the related Mortgage File to the Seller
and
shall execute and deliver at the Seller’s request any instruments of transfer or
assignment prepared by the Seller, in each case without recourse, necessary
to
vest in the Seller, or a designee, the Trustee’s interest in any Mortgage Loan
released pursuant hereto.
52
If
pursuant to the foregoing provisions the Seller repurchases a Mortgage Loan
that
is a MERS Mortgage Loan, the Servicer shall either (i) cause MERS to execute
and
deliver an assignment of the Mortgage in recordable form to transfer the
Mortgage from MERS to the Seller and shall cause such Mortgage to be removed
from registration on the MERS® System in accordance with MERS’ rules and
regulations or (ii) cause MERS to designate on the MERS® System the Seller as
the beneficial holder of such Mortgage Loan.
The
Trustee shall retain possession and custody of each Mortgage File in accordance
with and subject to the terms and conditions set forth herein. The
Servicer shall promptly deliver to the Trustee, upon the execution or receipt
thereof, the originals of any other documents or instruments constituting the
Mortgage File that come into the possession of the Servicer from time to
time.
The
obligation of the Seller to substitute for or to purchase any Mortgage Loan
that
does not meet the requirements of Section 2.01 shall constitute the sole
remedy respecting the defect available to the Trustee, the Depositor, and any
Certificateholder against the Seller.
Section
2.03. Representations,
Warranties, and Covenants of the Seller and the
Servicer.
(a) IndyMac,
in its capacities as Seller and Servicer, makes the representations and
warranties in Schedule II, and by this reference incorporated in this Agreement,
to the Depositor and the Trustee, as of the Closing Date.
(b) The
Seller, in its capacity as Seller, makes the representations and warranties
in
Schedule III, and by this reference incorporated in this Agreement, to the
Depositor and the Trustee, as of the Closing Date, or if so specified in
Schedule III, as of the Cut-off Date.
(c) Upon
discovery by any of the parties hereto of a breach of a representation or
warranty made pursuant to Section 2.03(b) that materially and adversely
affects the interests of the Certificateholders in any Mortgage Loan, the party
discovering such breach shall give prompt notice thereof to the other
parties. Any breach of representations and warranties under clauses
(28) and (39) of Schedule III shall be deemed to materially and adversely affect
the interests of the Certificateholders in the affected Mortgage
Loans. The Seller covenants that within 90 days of the earlier of its
discovery or its receipt of written notice from any party of a breach of any
representation or warranty made pursuant to Section 2.03(b) which
materially and adversely affects the interests of the Certificateholders in
any
Mortgage Loan, it shall cure such breach in all material respects, and if such
breach is not so cured, shall, (i) if the 90-day period expires before the
second anniversary of the Closing Date, remove the Mortgage Loan (a
“Deleted Mortgage Loan”) from the Trust Fund and
substitute in its place a Substitute Mortgage Loan, in accordance with this
Section 2.03; or (ii) repurchase the affected Mortgage Loan or Mortgage
Loans from the Trustee at the Purchase Price in the manner set forth
below. Any substitution pursuant to (i) above shall not be effected
before the delivery to the Trustee of the Opinion of Counsel, if required by
Section 2.05 and a Request for Release substantially in the form of Exhibit
N, and the Mortgage File for any Substitute Mortgage Loan. The Seller
shall promptly reimburse the Servicer and the Trustee for any expenses
reasonably incurred by the Servicer or the Trustee in respect of enforcing
the
remedies for the breach.
With
respect to any Substitute Mortgage Loan or Loans, the Seller shall deliver
to
the Trustee for the benefit of the Certificateholders the Mortgage Note, the
Mortgage, the related assignment of the Mortgage, and such other documents
and
agreements as are required by Section 2.01, with the Mortgage Note endorsed
and the Mortgage assigned as required by Section 2.01. No
substitution is permitted to be made in any calendar month after the
Determination Date for such month. Scheduled Payments due with
respect to Substitute Mortgage Loans in the month of substitution shall not
be
part of the Trust Fund and will be retained by the Seller on the next succeeding
Distribution Date. For the month of substitution, distributions to
Certificateholders will include the monthly payment due on any Deleted Mortgage
Loan for such month and thereafter the Seller shall be entitled to retain all
amounts received in respect of such Deleted Mortgage Loan.
53
The
Servicer shall amend the Mortgage Loan Schedule for the benefit of the
Certificateholders to reflect the removal of the Deleted Mortgage Loan and
the
substitution of the Substitute Mortgage Loans and the Servicer shall deliver
the
amended Mortgage Loan Schedule to the Trustee. Upon the substitution,
the Substitute Mortgage Loans shall be subject to this Agreement in all
respects, and the Seller shall be deemed to have made with respect to the
Substitute Mortgage Loans, as of the date of substitution, the representations
and warranties made pursuant to Section 2.03(b) with respect to the
Mortgage Loan. Upon any substitution and the deposit to the
Certificate Account of the amount required to be deposited therein in connection
with the substitution as described in the following paragraph, the Trustee
shall
release the Mortgage File held for the benefit of the Certificateholders
relating to the Deleted Mortgage Loan to the Seller and shall execute and
deliver at the Seller’s direction such instruments of transfer or assignment
prepared by the Seller, in each case without recourse, as shall be necessary
to
vest title in the Seller, or its designee, the Trustee’s interest in any Deleted
Mortgage Loan substituted for pursuant to this Section 2.03.
For
any
month in which the Seller substitutes one or more Substitute Mortgage Loans
for
one or more Deleted Mortgage Loans, the Servicer will determine the amount
(if
any) by which the aggregate principal balance of all such Substitute Mortgage
Loans as of the date of substitution is less than the aggregate Stated Principal
Balance of all such Deleted Mortgage Loans (after application of the scheduled
principal portion of the monthly payments due in the month of
substitution). The amount of such shortage (the
“Substitution Adjustment Amount”) plus, if the Seller
is not the Servicer, an amount equal to the aggregate of any unreimbursed
Advances and Servicer Advances with respect to such Deleted Mortgage Loans
shall
be deposited into the Certificate Account by the Seller by the Distribution
Account Deposit Date for the Distribution Date in the month succeeding the
calendar month during which the related Mortgage Loan became required to be
purchased or replaced hereunder. If the Seller repurchases a Mortgage
Loan, the Purchase Price therefor shall be deposited in the Certificate Account
pursuant to Section 3.06 by the Distribution Account Deposit Date for the
Distribution Date in the month following the month during which the Seller
became obligated hereunder to repurchase or replace the Mortgage Loan and upon
such deposit of the Purchase Price and receipt of a Request for Release in
the
form of Exhibit N, the Trustee shall release the related Mortgage File held
for
the benefit of the Certificateholders to such Person, and the Trustee shall
execute and deliver at such Person’s direction such instruments of transfer or
assignment prepared by such Person, in each case without recourse, as shall
be
necessary to transfer title from the Trustee. The obligation under
this Agreement of any Person to cure, repurchase, or replace any Mortgage Loan
as to which a breach has occurred and is continuing shall constitute the sole
remedy against the Person respecting the breach available to Certificateholders,
the Depositor, or the Trustee on their behalf.
The
representations and warranties made pursuant to this Section 2.03 shall
survive delivery of the respective Mortgage Files to the Trustee for the benefit
of the Certificateholders.
The
Seller assigns to the Depositor and the Depositor assigns to the Trustee all
rights the Seller might have under contracts with third parties relating to
early payment defaults on the Mortgage Loans (“EPD
Rights”) and the Servicer assumes any related duties as part of
its servicing obligations. Consistent with the Servicing Standard,
the Servicer shall attempt to enforce the EPD rights. If the
Servicer’s enforcement of the EPD Rights obligates the Servicer to sell a
Mortgage Loan to a third party, the Servicer shall repurchase the Mortgage
Loan
at the Purchase Price and sell the Mortgage Loan to the third party, provided
however, in no case shall the Servicer be obligated to repurchase a Mortgage
Loan on account of EPD Rights unless and until the Servicer shall have
previously received repurchase payment from a third party. The
Servicer shall deposit into the Certificate Account all amounts received in
connection with the enforcement of EPD Rights, not exceeding the Purchase Price,
with respect to any Mortgage Loan. Any amounts received by the
Servicer with respect a Mortgage Loan in excess of the Purchase Price shall
be
retained by the Servicer as additional servicing compensation. The Trustee,
upon
receipt of certification from the Servicer of the deposit of the Purchase Price
in connection with a repurchase of a Mortgage Loan and a Request for File
Release from the Servicer, shall release or cause to be released to the
purchaser of such Mortgage Loan the related Mortgage File and shall execute
and
deliver such instruments of transfer or assignment prepared by the purchaser
of
such Mortgage Loan, in each case without recourse, as shall be necessary to
vest
in the purchaser of such Mortgage Loan any Mortgage Loan released pursuant
hereto and the purchaser of such Mortgage Loan shall succeed to all the
Trustee’s right, title and interest in and to such Mortgage Loan and all
security and documents related thereto. Such assignment shall be an
assignment outright and not for security. The purchaser of such
Mortgage Loan shall thereupon own such Mortgage Loan, and all security and
documents, free of any further obligation to the Trustee or the
Certificateholders with respect thereto.
54
Section
2.04. Representations
and Warranties of the Depositor as to the Mortgage
Loans.
The
Depositor represents and warrants to the Trustee with respect to each Mortgage
Loan as of the date of this Agreement or such other date set forth in this
Agreement that as of the Closing Date, and following the transfer of the
Mortgage Loans to it by the Seller, the Depositor had good title to the Mortgage
Loans and the Mortgage Notes were subject to no offsets, defenses, or
counterclaims.
The
representations and warranties in this Section 2.04 shall survive delivery
of the Mortgage Files to the Trustee. Upon discovery by the Depositor
or the Trustee of any breach of any of the representations and warranties in
this Section that materially and adversely affects the interest of the
Certificateholders, the party discovering the breach shall give prompt written
notice to the others and to each Rating Agency.
Section
2.05. Delivery
of Opinion of Counsel in Connection with
Substitutions.
(a) Notwithstanding
any contrary provision of this Agreement, no substitution pursuant to
Section 2.02 or 2.03 shall be made more than 90 days after the Closing Date
unless the Seller delivers to the Trustee an Opinion of Counsel, which Opinion
of Counsel shall not be at the expense of either the Trustee or the Trust Fund,
addressed to the Trustee, to the effect that such substitution will not (i)
result in the imposition of the tax on “prohibited transactions” on the Trust
Fund or contributions after the Startup Date, as defined in sections 860F(a)(2)
and 860G(d) of the Code, respectively or (ii) cause any REMIC created under
this
Agreement to fail to qualify as a REMIC at any time that any Certificates are
outstanding.
(b) Upon
discovery by the Depositor, the Seller, the Servicer or the Trustee that any
Mortgage Loan does not constitute a “qualified mortgage” within the meaning of
section 860G(a)(3) of the Code, the party discovering such fact shall promptly
(and in any event within five Business Days of discovery) give written notice
thereof to the other parties. In connection therewith, the Trustee
shall require the Seller, at the Seller’s option, to either (i) substitute, if
the conditions in Section 2.03(c) with respect to substitutions are
satisfied, a Substitute Mortgage Loan for the affected Mortgage Loan, or (ii)
repurchase the affected Mortgage Loan within 90 days of such discovery in the
same manner as it would a Mortgage Loan for a breach of representation or
warranty made pursuant to Section 2.03. The Trustee shall
reconvey to the Seller the Mortgage Loan to be released pursuant hereto in
the
same manner, and on the same terms and conditions, as it would a Mortgage Loan
repurchased for breach of a representation or warranty contained in
Section 2.03.
55
Section
2.06. Execution
and Delivery of Certificates.
The
Trustee acknowledges the transfer and assignment to it of the Trust Fund and,
concurrently with such transfer and assignment, has executed and delivered
to or
upon the order of the Depositor, the Certificates in authorized denominations
evidencing directly or indirectly the entire ownership of the Trust
Fund. The Trustee agrees to hold the Trust Fund and exercise the
rights referred to above for the benefit of all present and future Holders
of
the Certificates.
Section
2.07. REMIC
Matters.
The
Preliminary Statement sets forth the designations and “latest possible maturity
date” for federal income tax purposes of all interests created under this
Agreement. The “Startup Day” for purposes of the REMIC Provisions
shall be the Closing Date. Each REMIC’s fiscal year shall be the
calendar year.
56
Article
Three
ADMINISTRATION AND
SERVICING OF
MORTGAGE
LOANS
Section
3.01. Servicer
to Service Mortgage Loans.
For
and
on behalf of the Certificateholders, the Servicer shall service and administer
the Mortgage Loans in accordance with this Agreement and the Servicing
Standard.
The
Servicer shall not make or permit any modification, waiver, or amendment of
any
term of any Mortgage Loan that would cause any REMIC created under this
Agreement to fail to qualify as a REMIC or result in the imposition of any
tax
under section 860F(a) or section 860G(d) of the Code.
Without
limiting the generality of the foregoing, the Servicer, in its own name or
in
the name of the Depositor and the Trustee, is hereby authorized and empowered
by
the Depositor and the Trustee, when the Servicer believes it appropriate in
its
reasonable judgment, to execute and deliver, on behalf of the Trustee, the
Depositor, the Certificateholders, or any of them, any instruments of
satisfaction or cancellation, or of partial or full release or discharge, and
all other comparable instruments, with respect to the Mortgage Loans, and with
respect to the Mortgaged Properties held for the benefit of the
Certificateholders. The Servicer shall prepare and deliver to the
Depositor or the Trustee any documents requiring execution and delivery by
either or both of them appropriate to enable the Servicer to service and
administer the Mortgage Loans to the extent that the Servicer is not permitted
to execute and deliver such documents pursuant to the preceding
sentence. Upon receipt of the documents, the Depositor or the Trustee
shall execute the documents and deliver them to the Servicer.
The
Servicer further is authorized and empowered by the Trustee, on behalf of the
Certificateholders and the Trustee, in its own name, when the Servicer believes
it appropriate in its best judgment to register any Mortgage Loan on the MERS®
System, or cause the removal from the registration of any Mortgage Loan on
the
MERS® System, to execute and deliver, on behalf of the Trustee and the
Certificateholders or any of them, any and all instruments of assignment and
other comparable instruments with respect to such assignment or re-recording
of
a Mortgage in the name of MERS, solely as nominee for the Trustee and its
successors and assigns.
In
accordance with and to the extent of the Servicing Standard, the Servicer shall
advance funds necessary to effect the payment of taxes and assessments on the
Mortgaged Properties, which advances shall be reimbursable in the first instance
from related collections from the Mortgagors pursuant to Section 3.07, and
further as provided in Section 3.09. The costs incurred by the
Servicer in effecting the timely payments of taxes and assessments on the
Mortgaged Properties and related insurance premiums shall not, for the purpose
of calculating monthly distributions to the Certificateholders, be added to
the
Stated Principal Balances of the related Mortgage Loans, notwithstanding that
the Mortgage Loans so permit.
Nothing
in this Agreement to the contrary shall limit the Servicer from undertaking
any
legal action that it may deem appropriate with respect to the Mortgage Loans
including, without limitation, any rights or causes of action arising out of
the
origination of the Mortgage Loans.
57
Section
3.02. [Reserved].
Section
3.03. Rights
of the Depositor and the Trustee in Respect of the
Servicer.
The
Depositor may, but is not obligated to, enforce the obligations of the Servicer
under this Agreement and may, but is not obligated to, perform, or cause a
designee to perform, any defaulted obligation of the Servicer under this
Agreement and in connection with any such defaulted obligation to exercise
the
related rights of the Servicer under this Agreement; provided that the Servicer
shall not be relieved of any of its obligations under this Agreement by virtue
of such performance by the Depositor or its designee. Neither the
Trustee nor the Depositor shall have any responsibility or liability for any
action or failure to act by the Servicer nor shall the Trustee or the Depositor
be obligated to supervise the performance of the Servicer under this Agreement
or otherwise.
Section
3.04. [Reserved].
Section
3.05. Trustee
to Act as Servicer.
If
the
Servicer for any reason is no longer the Servicer under this Agreement
(including because of the occurrence or existence of an Event of Default),
the
Trustee or its successor shall assume all of the rights and obligations of
the
Servicer under this Agreement arising thereafter (except that the Trustee shall
not be
(i) liable
for losses of the Servicer pursuant to Section 3.10 or any acts or
omissions of the predecessor Servicer hereunder,
(ii) obligated
to make Advances if it is prohibited from doing so by applicable
law,
(iii) obligated
to effectuate repurchases or substitutions of Mortgage Loans hereunder,
including repurchases or substitutions pursuant to Section 2.02 or
2.03,
(iv) responsible
for expenses of the Servicer pursuant to Section 2.03, or
(v) deemed
to have made any representations and warranties of the Servicer
hereunder). Any assumption shall be subject to
Section 7.02.
Notwithstanding
anything else in this Agreement to the contrary, in no event shall the Trustee
be liable for any servicing fee or for any differential in the amount of the
Servicing Fee paid under this Agreement and the amount necessary to induce
any
successor Servicer to act as successor Servicer under this Agreement and the
transactions provided for in this Agreement.
Section
3.06. Collection
of Mortgage Loan Payments; Certificate Account; Distribution Account; Swap
Account; Credit Support Collateral Account; Supplemental Interest Reserve
Fund.
(a) In
accordance with and to the extent of the Servicing Standard, the Servicer shall
make reasonable efforts in accordance with the customary and usual standards
of
practice of prudent mortgage servicers to collect all payments called for under
the Mortgage Loans to the extent the procedures are consistent with this
Agreement and any related Required Insurance Policy. Consistent with
the foregoing, the Servicer may in its discretion (i) subject to Section 3.22,
waive any Late Payment Fee or, subject to Section 3.21, waive any
Prepayment Charge in connection with the prepayment of a Mortgage Loan and
(ii)
extend the due dates for payments due on a Delinquent Mortgage Loan for a period
not greater than 125 days. In connection with a seriously delinquent
or defaulted Mortgage Loan, the Servicer may, consistent with the Servicing
Standard, waive, modify or vary any term of that Mortgage Loan (including
modifications that change the Mortgage Rate, forgive the payment of
principal or interest or extend the final maturity date of that Mortgage Loan
),
accept payment from the related Mortgagor of an amount less than the Stated
Principal Balance in final satisfaction of that Mortgage Loan, or consent to
the
postponement of strict compliance with any such term or otherwise grant
indulgence to any Mortgagor if in the Servicer’s determination such waiver,
modification, postponement or indulgence is not materially adverse to the
interests of the Certificateholders (taking into account any estimated loss
that
might result absent such action) and is expected to minimize the loss on such
Mortgage Loan; provided, however, the Servicer shall not initiate new lending
to
such Mortgagor through the Trust and cannot, except as provided in the
immediately succeeding sentence, extend the maturity of any Mortgage Loan past
the date on which the final payment is due on the latest maturing Mortgage
Loan
as of the Cut-off Date. With respect to no more than 5% of the
Mortgage Loans (measured by aggregate Cut-off Date Principal Balance of the
Mortgage Loans), the Servicer may extend the maturity of a Mortgage Loan past
the date on which the final payment is due on the latest maturing Mortgage
Loan
as of the Cut-off Date, but in no event more than one year past such date.
In
the event of any such arrangement, the Servicer shall make Advances on the
related Mortgage Loan in accordance with Section 4.01 during the scheduled
period in accordance with the amortization schedule of the Mortgage Loan without
modification thereof because of the arrangements. The Servicer shall
not be required to institute or join in litigation with respect to collection
of
any payment (whether under a Mortgage, Mortgage Note, or otherwise or against
any public or governmental authority with respect to a taking or condemnation)
if it reasonably believes that enforcing the provision of the Mortgage or other
instrument pursuant to which the payment is required is prohibited by applicable
law. The Servicer shall not have the discretion to sell any
Delinquent or defaulted Mortgage Loan.
58
(b) [reserved].
(c) [reserved].
(d) The
Servicer shall establish and maintain a Certificate Account into which the
Servicer shall deposit within two Business Days of receipt or as otherwise
specified in this Agreement, the following payments and collections received
by
it in respect of Mortgage Loans after the Cut-off Date (other than in respect
of
principal and interest due on the Mortgage Loans by the Cut-off Date) and the
following amounts required to be deposited hereunder:
(i) all
payments on account of principal on the Mortgage Loans, including Principal
Prepayments;
(ii) all
payments on account of interest on the Mortgage Loans, net of the Prepayment
Interest Excess and the Servicing Fee;
(iii) all
Insurance Proceeds, Subsequent Recoveries and Liquidation Proceeds, other than
proceeds to be applied to the restoration or repair of the Mortgaged Property
or
released to the Mortgagor in accordance with the Servicer’s normal servicing
procedures;
(iv) any
amount required to be deposited by the Servicer pursuant to Section 3.06(f)
in connection with any losses on Permitted Investments;
(v) any
amounts required to be deposited by the Servicer pursuant to Sections 3.10
and
3.12;
59
(vi) all
Purchase Prices from the Servicer or Seller and all Substitution Adjustment
Amounts;
(vii) all
Advances made by the Servicer pursuant to Section 4.01;
(viii) any
other amounts required to be deposited under this Agreement;
(ix) all
Late Payment Fees collected by the Servicer; and
(x) all
Prepayment Charges collected and amounts payable by the Servicer for the waiver
of such amounts.
In
addition, with respect to any Mortgage Loan that is subject to a buydown
agreement, on each Due Date for the Mortgage Loan, in addition to the monthly
payment remitted by the Mortgagor, the Servicer shall cause funds to be
deposited into the Certificate Account in an amount required to cause an amount
of interest to be paid with respect to the Mortgage Loan equal to the amount
of
interest that has accrued on the Mortgage Loan from the preceding Due Date
at
the Mortgage Rate net of the Servicing Fee Rate on that date.
The
foregoing requirements for remittance by the Servicer to the Certificate Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of assumption fees, if
collected, need not be remitted by the Servicer. If the Servicer
remits any amount not required to be remitted, it may at any time withdraw
that
amount from the Certificate Account, any provision in this Agreement to the
contrary notwithstanding. The withdrawal or direction may be
accomplished by delivering written notice of it to the Trustee or any other
institution maintaining the Certificate Account that describes the amounts
deposited in error in the Certificate Account. The Servicer shall
maintain adequate records with respect to all withdrawals made pursuant to
this
Section 3.06. All funds deposited in the Certificate Account
shall be held in trust for the Certificateholders until withdrawn in accordance
with Section 3.09.
(e) The
Trustee shall establish and maintain the Distribution Account on behalf of
the
Certificateholders. The Trustee shall, promptly upon receipt, deposit
in the Distribution Account and retain in the Distribution Account the
following:
(i) the
aggregate amount remitted by the Servicer to the Trustee pursuant to
Section 3.09(a);
(ii) any
amount deposited by the Servicer pursuant to Section 3.06(f) in connection
with any losses on Permitted Investments; and
(iii) any
other amounts deposited under this Agreement that are required to be deposited
in the Distribution Account.
If
the
Servicer remits any amount not required to be remitted, it may at any time
direct the Trustee in writing to withdraw that amount from the Distribution
Account, any provision in this Agreement to the contrary
notwithstanding. The direction may be accomplished by delivering an
Officer’s Certificate to the Trustee that describes the amounts deposited in
error in the Distribution Account. All funds deposited in the
Distribution Account shall be held by the Trustee in trust for the
Certificateholders until disbursed in accordance with this Agreement or
withdrawn in accordance with Section 3.09. In no event shall the
Trustee incur liability for withdrawals from the Distribution Account at the
direction of the Servicer.
60
(f) Each
institution at which the Certificate Account is maintained shall invest the
funds in such account as directed in writing by the Servicer in Permitted
Investments, which shall mature not later than the second Business Day preceding
the related Distribution Account Deposit Date (except that if the Permitted
Investment is an obligation of the institution that maintains the account,
then
the Permitted Investment shall mature not later than the Business Day preceding
the Distribution Account Deposit Date) and which shall not be sold or disposed
of before its maturity. The funds in the Distribution Account shall
remain uninvested. All such Permitted Investments shall be made in
the name of the Trustee, for the benefit of the
Certificateholders. All income realized from any such investment of
funds on deposit in the Certificate Account shall be for the benefit of the
Servicer as servicing compensation and shall be remitted to it monthly as
provided in this Agreement. The amount of any realized losses on
Permitted Investments in the Certificate Account shall promptly be deposited
by
the Servicer in the Certificate Account. The Trustee shall not be
liable for the amount of any loss incurred in respect of any investment or
lack
of investment of funds held in the Certificate Account and made in accordance
with this Section 3.06.
(g) (i)
On the Closing Date, the Swap Trustee shall establish and maintain in its name,
in trust for the benefit of the Holders of the LIBOR Certificates, the Swap
Account. The Swap Account shall be an Eligible Account, and funds on
deposit in the account shall be held separate and apart from, and shall not
be
commingled with, any other moneys, including without limitation, other moneys
held by the Trustee pursuant to this Agreement.
(ii)
The
Swap Trustee shall deposit in the Swap Account all amounts received from the
Swap Counterparty for any Distribution Date. If the Swap Trustee
shall also deposit into the Swap Account any amount not required to be deposited
in that account, it may at any time withdraw such amount from the Swap Account,
any provision in this Agreement to the contrary
notwithstanding. Funds in the Swap Account shall be held
uninvested.
(iii)
Funds on deposit in the Swap Account shall be distributed in the amounts and
in
the order described under Section 4.02(d).
(iv)
On
each Distribution Date, the Trustee shall make the deposits to the Swap Account
pursuant to Section 4.02(a) and (b).
(h) (i)
Upon the execution of an ISDA Credit Support Annex, the Supplemental Interest
Trustee or the Swap Trustee, as applicable, shall establish and maintain in
its
name, in trust for the benefit of the Holders of the LIBOR Certificates, the
Credit Support Collateral Account. The Credit Support Collateral
Account shall be an Eligible Account, and funds on deposit in the account shall
be held separate and apart from, and shall not be commingled with, any other
moneys, including without limitation, other moneys held by the Supplemental
Interest Trustee or the Swap Trustee, as applicable, pursuant to this
Agreement.
(ii)
The
Supplemental Interest Trustee or the Swap Trustee, as applicable, shall deposit
in the Credit Support Collateral Account any collateral (whether in the form
of
cash, securities or any other eligible investments) pledged by the Corridor
Counterparty or the Swap Counterparty, as applicable, under the related ISDA
Credit Support Annex. If the Supplemental Interest Trustee or the
Swap Trustee, as applicable, shall also deposit into the Credit Support
Collateral Account any amount not required to be deposited in that account,
it
may at any time withdraw such amount from the Credit Support Collateral Account,
any provision in this Agreement to the contrary
notwithstanding. Funds in the Credit Support Collateral Account shall
be invested in permitted investment defined in the ISDA Credit Support
Annex.
61
(iii)
Funds on deposit in the Credit Support Collateral Account shall be applied
in
accordance with the terms of the related ISDA Credit Support Annex.
(i) (i)
On the Closing Date, the Supplemental Interest Trustee shall establish and
maintain in its name, in trust for the benefit of the Holders of the LIBOR
Certificates, the Supplemental Interest Reserve Fund. The
Supplemental Interest Reserve Fund shall be an Eligible Account, and funds
on
deposit in the account shall be held separate and apart from, and shall not
be
commingled with, any other moneys, including without limitation, other moneys
held by the Trustee pursuant to this Agreement.
(ii)
The
Supplemental Interest Trustee shall deposit in the Supplemental Interest Reserve
Fund all amounts received from the Corridor Counterparty for any Distribution
Date. If the Supplemental Interest Trustee shall also deposit into
the Supplemental Interest Reserve Fund any amount not required to be deposited
in that account, it may at any time withdraw such amount from the Supplemental
Interest Reserve Fund, any provision in this Agreement to the contrary
notwithstanding. Funds in the Supplemental Interest Reserve Fund
shall be held uninvested.
(iii)
Funds on deposit in the Supplemental Interest Reserve Fund shall be distributed
in the amounts and in the order described under Section 3.19(a).
(j) The
Servicer shall give notice to the Trustee, the Seller, each Rating Agency and
the Depositor of any proposed change of the location of the Certificate Account
not later than 30 days and not more than 45 days prior to any change of this
Agreement. The Trustee shall give notice to the Servicer, the Seller,
each Rating Agency and the Depositor of any proposed change of the location
of
the Distribution Account or Swap Account not later than 30 days and not more
than 45 days prior to any change of this Agreement.
(k) Upon
a downgrade in the rating of an institution at which an Eligible Account is
held
below the required ratings set forth in the definition of Eligible Account,
within 30 days of such downgrade, such account will be transferred to an account
meeting the requirements of the definition of Eligible Account; provided,
however, that this transfer requirement may be waived by the applicable Rating
Agency.
Section
3.07. Collection
of Taxes, Assessments and Similar Items; Escrow
Accounts.
(a) To
the extent required by the related Mortgage Note and not violative of current
law, the Servicer shall establish and maintain one or more accounts (each,
an
“Escrow Account”) and deposit and retain therein all
collections from the Mortgagors (or advances) for the payment of taxes,
assessments, hazard insurance premiums or comparable items for the account
of
the Mortgagors. Nothing herein shall require the Servicer to compel a
Mortgagor to establish an Escrow Account in violation of applicable
law.
(b) Withdrawals
of amounts so collected from the Escrow Accounts may be made only to effect
timely payment of taxes, assessments, hazard insurance premiums, condominium
or
PUD association dues, or comparable items, to reimburse (without duplication)
the Servicer out of related collections for any payments made pursuant to
Section 3.01 (with respect to taxes and assessments and insurance premiums)
and Section 3.10 (with respect to hazard insurance), to refund to any
Mortgagors any sums determined to be overages, to pay interest, if required
by
law or the related Mortgage or Mortgage Note, to Mortgagors on balances in
the
Escrow Account or to clear and terminate the Escrow Account at the termination
of this Agreement in accordance with Section 9.01. The Escrow
Accounts shall not be a part of the Trust Fund.
62
(c) The
Servicer shall advance any payments referred to in Section 3.07(a) that are
not timely paid by the Mortgagors or advanced by the Servicer on the date when
the tax, premium or other cost for which such payment is intended is due, but
the Servicer shall be required so to advance only to the extent that such
advances, in the good faith judgment of the Servicer, will be recoverable by
the
Servicer out of Insurance Proceeds, Liquidation Proceeds or
otherwise.
Section
3.08. Access
to Certain Documentation and Information Regarding the Mortgage
Loans.
The
Servicer shall afford the Depositor and the Trustee reasonable access to all
records and documentation regarding the Mortgage Loans and all accounts,
insurance information and other matters relating to this Agreement, such access
being afforded without charge, but only upon reasonable request and during
normal business hours at the office designated by the Servicer.
Upon
reasonable advance notice in writing, the Servicer will provide to each
Certificateholder or Certificate Owner that is a savings and loan association,
bank, or insurance company certain reports and reasonable access to information
and documentation regarding the Mortgage Loans sufficient to permit the
Certificateholder or Certificate Owner to comply with applicable regulations
of
the OTS or other regulatory authorities with respect to investment in the
Certificates. The Servicer shall be entitled to be reimbursed by each
such Certificateholder or Certificate Owner for actual expenses incurred by
the
Servicer in providing the reports and access.
Section
3.09. Permitted
Withdrawals from the Certificate Account, the Distribution Account, the Swap
Account and the Supplemental Interest Reserve Fund.
(a) The
Servicer may (and, in the case of clause (ix) below, shall) from time to time
make withdrawals from the Certificate Account for the following
purposes:
(i) to
pay to the Servicer (to the extent not previously retained) the servicing
compensation to which it is entitled pursuant to Section 3.15, and to pay
to the Servicer, as additional servicing compensation, earnings on or investment
income with respect to funds in or credited to the Certificate
Account;
(ii) to
reimburse the Servicer or successor Servicer for the unreimbursed Advances made
by it, such right of reimbursement pursuant to this subclause (ii) being limited
to amounts received on the Mortgage Loans in respect of which the Advance was
made;
(iii) to
reimburse the Servicer or successor Servicer for any Nonrecoverable Advance
previously made by it;
(iv) to
reimburse the Servicer for Insured Expenses from the related Insurance
Proceeds;
(v) to
reimburse the Servicer for (a) unreimbursed Servicing Advances, the Servicer’s
right to reimbursement pursuant to this clause (a) with respect to any Mortgage
Loan being limited to amounts received on the Mortgage Loans that represent
late
recoveries of the payments for which the advances were made pursuant to
Section 3.01 or Section 3.07, (b) unreimbursed Servicing Advances made
in respect of a Mortgage Loan for which such Servicing Advances are no
recoverable from the Mortgagor and (c) for unpaid Servicing Fees as provided
in
Section 3.12;
63
(vi) to
pay to the purchaser, with respect to each Mortgage Loan or property acquired
in
respect of such Mortgage Loan that has been purchased pursuant to
Section 2.02, 2.03, or 3.12, all amounts received thereon after the date of
such purchase;
(vii) to
reimburse the Seller, the Servicer, or the Depositor for expenses incurred
by
any of them and reimbursable pursuant to Section 6.03;
(viii) to
withdraw any amount deposited in the Certificate Account and not required to
be
deposited in the Certificate Account;
(ix) by
the Distribution Account Deposit Date, to withdraw (1) the Available Funds
and
the Trustee Fee for the Distribution Date, to the extent on deposit, (2) the
Prepayment Charges on deposit and (3) the $100 held in trust for the Class
P
Certificates, and amounts paid pursuant to Sections 3.21 and 3.22, and remit
such amount to the Trustee for deposit in the Distribution Account;
and
(x) to
clear and terminate the Certificate Account upon termination of this Agreement
pursuant to Section 9.01.
The
Servicer shall keep and maintain separate accounting, on a Mortgage Loan by
Mortgage Loan basis, to justify any withdrawal from the Certificate Account
pursuant to subclauses (i), (ii), (iv), (v) and (vi). Before making
any withdrawal from the Certificate Account pursuant to subclause (iii), the
Servicer shall deliver to the Trustee an Officer’s Certificate of a Servicing
Officer indicating the amount of any previous Advance determined by the Servicer
to be a Nonrecoverable Advance and identifying the related Mortgage Loans and
their respective portions of the Nonrecoverable Advance.
In
addition to the amounts remitted to the Trustee by the Servicer from the
Certificate Account, by the Distribution Account Deposit Date, the Servicer
shall remit all Late Payment Fees assessable and not waived pursuant to Section
3.22(a) to the Trustee for deposit in the Distribution Account.
(b) The
Trustee shall withdraw funds from the Distribution Account for distributions
to
Certificateholders in the manner specified in this Agreement (and to withhold
from the amounts so withdrawn the amount of any taxes that it is authorized
to
withhold pursuant to the third paragraph of Section 8.11). In
addition, the Trustee may from time to time make withdrawals from the
Distribution Account for the following purposes:
(i) to
pay to itself the Trustee Fee for the related Distribution Date;
(ii) to
withdraw and return to the Servicer any amount deposited in the Distribution
Account and not required to be deposited therein; and
(iii) to
clear and terminate the Distribution Account upon termination of the Agreement
pursuant to Section 9.01.
(c) On
each Distribution Date, the Trustee shall make withdrawals from the Supplemental
Interest Reserve Fund in the manner specified in Section 3.06 (and to withhold
from the amounts so withdrawn the amount of any taxes that it is authorized
to
retain pursuant to the third paragraph of Section 8.11). In addition,
the Trustee may from time to time make withdrawals from the Supplemental
Interest Reserve Fund for the following purposes:
64
(i) to
withdraw any amount deposited in the Supplemental Interest Reserve Fund and
not
required to be deposited therein; and
(ii) to
clear and terminate the Supplemental Interest Reserve Fund upon the earliest
of
(x) the reduction of the aggregate Class Certificate Balance of the LIBOR
Certificates to zero, (y) the Corridor Contract Termination Date and (z) the
termination of this Agreement pursuant to Section 9.01.
(d) On
each Distribution Date, the Trustee shall make withdrawals from the Swap Account
in the manner specified in Section 3.06 (and to withhold from the amounts so
withdrawn the amount of any taxes that it is authorized to retain pursuant
to
the third paragraph of Section 8.11). In addition, the Trustee may
from time to time make withdrawals from the Swap Account for the following
purposes:
(iii) to
withdraw any amount deposited in the Swap Account and not required to be
deposited therein; and
(iv) to
clear and terminate the Swap Account upon the earliest of (x) the reduction
of
the aggregate Class Certificate Balance of the LIBOR Certificates to zero,
(y)
the Swap Contract Termination Date and (z) the termination of this Agreement
pursuant to Section 9.01.
Section
3.10. Maintenance
of Hazard Insurance; Maintenance of Primary Insurance
Policies.
(a) The
Servicer shall maintain, for each Mortgage Loan, hazard insurance with extended
coverage in an amount that is at least equal to the lesser of
(i) the
maximum insurable value of the improvements securing the Mortgage Loan
and
(ii) the
greater of (y) the outstanding principal balance of the Mortgage Loan and (z)
an
amount such that the proceeds of the policy are sufficient to prevent the
Mortgagor or the mortgagee from becoming a co-insurer.
Each
policy of standard hazard insurance shall contain, or have an accompanying
endorsement that contains, a standard mortgagee clause. Any amounts
collected under the policies (other than the amounts to be applied to the
restoration or repair of the related Mortgaged Property or amounts released
to
the Mortgagor in accordance with the Servicer’s normal servicing procedures)
shall be deposited in the Certificate Account. Any cost incurred in
maintaining any insurance shall not, for the purpose of calculating monthly
distributions to the Certificateholders or remittances to the Trustee for their
benefit, be added to the principal balance of the Mortgage Loan, notwithstanding
that the Mortgage Loan so permits. Such costs shall be recoverable by
the Servicer out of late payments (other than Late Payment Fees) by the related
Mortgagor or out of Liquidation Proceeds to the extent permitted by
Section 3.09. No earthquake or other additional insurance is to
be required of any Mortgagor or maintained on property acquired in respect
of a
Mortgage other than pursuant to any applicable laws and regulations in force
that require additional insurance. If the Mortgaged Property is
located at the time of origination of the Mortgage Loan in a federally
designated special flood hazard area and the area is participating in the
national flood insurance program, the Servicer shall maintain flood insurance
for the Mortgage Loan. The flood insurance shall be in an amount
equal to the least of (i) the original principal balance of the related Mortgage
Loan, (ii) the replacement value of the improvements that are part of the
Mortgaged Property, and (iii) the maximum amount of flood insurance available
for the related Mortgaged Property under the national flood insurance
program.
65
If
the
Servicer obtains and maintains a blanket policy insuring against hazard losses
on all of the Mortgage Loans, it shall have satisfied its obligations in the
first sentence of this Section 3.10. The policy may contain a
deductible clause on terms substantially equivalent to those commercially
available and maintained by comparable servicers. If the policy
contains a deductible clause and a policy complying with the first sentence
of
this Section 3.10 has not been maintained on the related Mortgaged
Property, and if a loss that would have been covered by the required policy
occurs, the Servicer shall deposit in the Certificate Account, without any
right
of reimbursement, the amount not otherwise payable under the blanket policy
because of the deductible clause. In connection with its activities
as Servicer of the Mortgage Loans, the Servicer agrees to present, on behalf
of
itself, the Depositor, and the Trustee for the benefit of the
Certificateholders, claims under any blanket policy.
(b) The
Servicer shall not take any action that would result in non-coverage under
any
applicable Primary Insurance Policy of any loss that, but for the actions of
the
Servicer, would have been covered thereunder. The Servicer shall not
cancel or refuse to renew any Primary Insurance Policy that is in effect at
the
date of the initial issuance of the Certificates and is required to be kept
in
force hereunder unless the replacement Primary Insurance Policy for the canceled
or non-renewed policy is maintained with a Qualified Insurer. The
Servicer need not maintain any Primary Insurance Policy if maintaining the
Primary Insurance Policy is prohibited by applicable law. The
Servicer agrees, to the extent permitted by applicable law, to effect the timely
payment of the premiums on each Primary Insurance Policy, and any costs not
otherwise recoverable shall be recoverable by the Servicer from the related
liquidation proceeds.
In
connection with its activities as Servicer of the Mortgage Loans, the Servicer
agrees to present, on behalf of itself, the Trustee and the Certificateholders,
claims to the insurer under any Primary Insurance Policies and, in this regard,
to take any reasonable action in accordance with the Servicing Standard
necessary to permit recovery under any Primary Insurance Policies respecting
defaulted Mortgage Loans. Any amounts collected by the Servicer under
any Primary Insurance Policies shall be deposited in the Certificate
Account.
Section
3.11. Enforcement
of Due-On-Sale Clauses; Assumption Agreements.
(a) Except
as otherwise provided in this Section 3.11, when any property subject to a
Mortgage has been conveyed by the Mortgagor, the Servicer shall to the extent
that it has knowledge of the conveyance and in accordance with the Servicing
Standard, enforce any due-on-sale clause contained in any Mortgage Note or
Mortgage, to the extent permitted under applicable law and governmental
regulations, but only to the extent that enforcement will not adversely affect
or jeopardize coverage under any Required Insurance
Policy. Notwithstanding the foregoing, the Servicer is not required
to exercise these rights with respect to a Mortgage Loan if the Person to whom
the related Mortgaged Property has been conveyed or is proposed to be conveyed
satisfies the conditions contained in the Mortgage Note and Mortgage related
thereto and the consent of the mortgagee under the Mortgage Note or Mortgage
is
not otherwise so required under the Mortgage Note or Mortgage as a condition
to
the transfer.
If
(i)
the Servicer is prohibited by law from enforcing any due-on-sale clause, (ii)
coverage under any Required Insurance Policy would be adversely affected, (iii)
the Mortgage Note does not include a due-on-sale clause, or (iv) nonenforcement
is otherwise permitted hereunder, the Servicer is authorized, subject to
Section 3.11(b), to take or enter into an assumption and modification
agreement from or with the person to whom the property has been or is about
to
be conveyed, pursuant to which the person becomes liable under the Mortgage
Note
and, unless prohibited by applicable state law, the Mortgagor remains liable
thereon. The Mortgage Loan must continue to be covered (if so covered
before the Servicer enters into the agreement) by the applicable Required
Insurance Policies.
66
The
Servicer, subject to Section 3.11(b), is also authorized with the prior
approval of the insurers under any Required Insurance Policies to enter into
a
substitution of liability agreement with the Person, pursuant to which the
original Mortgagor is released from liability and the Person is substituted
as
Mortgagor and becomes liable under the Mortgage Note. Notwithstanding
the foregoing, the Servicer shall not be deemed to be in default under this
Section 3.11 because of any transfer or assumption that the Servicer
reasonably believes it is restricted by law from preventing, for any reason
whatsoever.
(b) Subject
to the Servicer’s duty to enforce any due-on-sale clause to the extent set forth
in Section 3.11(a), in any case in which a Mortgaged Property has been
conveyed to a Person by a Mortgagor, and the Person is to enter into an
assumption agreement or modification agreement or supplement to the Mortgage
Note or Mortgage that requires the signature of the Trustee, or if an instrument
of release signed by the Trustee is required releasing the Mortgagor from
liability on the Mortgage Loan, the Servicer shall prepare and deliver to the
Trustee for signature and shall direct the Trustee, in writing, to execute
the
assumption agreement with the Person to whom the Mortgaged Property is to be
conveyed, and the modification agreement or supplement to the Mortgage Note
or
Mortgage or other instruments appropriate to carry out the terms of the Mortgage
Note or Mortgage or otherwise to comply with any applicable laws regarding
assumptions or the transfer of the Mortgaged Property to the
Person. In connection with any such assumption, no material term of
the Mortgage Note may be changed.
In
addition, the substitute Mortgagor and the Mortgaged Property must be acceptable
to the Servicer in accordance with its underwriting standards as then in
effect. Together with each substitution, assumption, or other
agreement or instrument delivered to the Trustee for execution by it, the
Servicer shall deliver an Officer’s Certificate signed by a Servicing Officer
stating that the requirements of this subsection have been met in connection
with such Officer’s Certificate. The Servicer shall notify the
Trustee that any substitution or assumption agreement has been completed by
forwarding to the Trustee the original of the substitution or assumption
agreement, which in the case of the original shall be added to the related
Mortgage File and shall, for all purposes, be considered a part of the Mortgage
File to the same extent as all other documents and instruments constituting
a
part of the Mortgage File. The Servicer will retain any fee collected
by it for entering into an assumption or substitution of liability agreement
as
additional servicing compensation.
Section
3.12. Realization
Upon Defaulted Mortgage Loans.
The
Servicer shall use reasonable efforts in accordance with the Servicing Standard
to foreclose on or otherwise comparably convert the ownership of assets securing
such of the Mortgage Loans as come into and continue in default and as to which
no satisfactory arrangements can be made for collection of delinquent
payments. In connection with the foreclosure or other conversion, the
Servicer shall follow the Servicing Standard and shall follow the requirements
of the insurer under any Required Insurance Policy. The Servicer
shall not be required to expend its own funds in connection with any foreclosure
or towards the restoration of any property unless it determines (i) that the
restoration or foreclosure will increase the proceeds of liquidation of the
Mortgage Loan after reimbursement to itself of restoration expenses and (ii)
that restoration expenses will be recoverable to it through Liquidation Proceeds
(respecting which it shall have priority for purposes of withdrawals from the
Certificate Account). The Servicer shall be responsible for all other
costs and expenses incurred by it in any foreclosure proceedings. The
Servicer is entitled to reimbursement of such costs and expenses from the
liquidation proceeds with respect to the related Mortgaged Property, as provided
in the definition of Liquidation Proceeds. If the Servicer has
knowledge that a Mortgaged Property that the Servicer is contemplating acquiring
in foreclosure or by deed in lieu of foreclosure is located within a one mile
radius of any site listed in the Expenditure Plan for the Hazardous Substance
Clean Up Bond Act of 1984 or other site with environmental or hazardous waste
risks known to the Servicer, the Servicer will, before acquiring the Mortgaged
Property, consider the risks and only take action in accordance with its
established environmental review procedures.
67
With
respect to any REO Property, the deed or certificate of sale shall be taken
in
the name of the Trustee for the benefit of the Certificateholders, or its
nominee, on behalf of the Certificateholders. The Trustee’s name
shall be placed on the title to the REO Property solely as the Trustee hereunder
and not in its individual capacity. The Servicer shall ensure that
the title to the REO Property references the Pooling and Servicing Agreement
and
the Trustee’s capacity hereunder. Pursuant to its efforts to sell the
REO Property, the Servicer shall either itself or through an agent selected
by
the Servicer protect and conserve the REO Property in accordance with the
Servicing Standard.
The
Servicer shall perform the tax reporting and withholding required by sections
1445 and 6050J of the Code with respect to foreclosures and abandonments, the
tax reporting required by section 6050H of the Code with respect to the receipt
of mortgage interest from individuals and, if required by section 6050P of
the
Code with respect to the cancellation of indebtedness by certain financial
entities, by preparing any required tax and information returns, in the form
required.
If
the
Trust Fund acquires any Mortgaged Property as aforesaid or otherwise in
connection with a default or imminent default on a Mortgage Loan, the REO
Property shall only be held temporarily, shall be actively marketed for sale,
and the Servicer shall dispose of the Mortgaged Property as soon as practicable,
and in any case before the end of the third calendar year following the calendar
year in which the Trust Fund acquires the property. Notwithstanding
any other provision of this Agreement, no Mortgaged Property acquired by the
Trust Fund shall be rented (or allowed to continue to be rented) or otherwise
used for the production of income by or on behalf of the Trust
Fund.
The
decision of the Servicer to foreclose on a defaulted Mortgage Loan shall be
subject to a determination by the Servicer that the proceeds of the foreclosure
would exceed the costs and expenses of bringing a foreclosure
proceeding. The proceeds received from the maintenance of any REO
Properties, net of reimbursement to the Servicer for costs incurred (including
any property or other taxes) in connection with maintenance of the REO
Properties and net of unreimbursed Servicing Fees, Advances, and Servicing
Advances, shall be applied to the payment of principal of and interest on the
related defaulted Mortgage Loans (with interest accruing as though the Mortgage
Loans were still current and adjustments, if applicable, to the Mortgage Rate
were being made in accordance with the Mortgage Note) and all such proceeds
shall be deemed, for all purposes in this Agreement, to be payments on account
of principal and interest on the related Mortgage Notes and shall be deposited
into the Certificate Account. To the extent the net proceeds received
during any calendar month exceeds the amount attributable to amortizing
principal and accrued interest at the related Mortgage Rate on the related
Mortgage Loan for the calendar month, the excess shall be considered to be
a
partial prepayment of principal of the related Mortgage Loan.
The
proceeds from any liquidation of a Mortgage Loan, as well as any proceeds from
an REO Property, will be applied in the following order of
priority: first, to reimburse the Servicer for any related
unreimbursed Servicing Advances or Servicing Fees or for any related
unreimbursed Advances, as applicable; second, to reimburse the Servicer, as
applicable, and to reimburse the Certificate Account for any Nonrecoverable
Advances (or portions thereof) that were previously withdrawn by the Servicer
pursuant to Section 3.09(a)(iii) that related to the Mortgage Loan; third,
to accrued and unpaid interest (to the extent no Advance has been made for
such
amount or any such Advance has been reimbursed) on the Mortgage Loan or related
REO Property, at the Adjusted Net Mortgage Rate to the Due Date occurring in
the
month in which such amounts are required to be distributed; and fourth, as
a
recovery of principal of the Mortgage Loan. The Servicer will retain
any Excess Proceeds from the liquidation of a Liquidated Mortgage Loan as
additional servicing compensation pursuant to Section 3.15.
68
The
Servicer may agree to a modification of any Mortgage Loan at the request of
the
related Mortgagor if (i) the modification is in lieu of a refinancing and (ii)
the Servicer purchases that Mortgage Loan from the Trust Fund as described
below. Upon the agreement of the Servicer to modify a Mortgage Loan
in accordance with the preceding sentence, the Servicer shall purchase that
Mortgage Loan and all interest of the Trustee in that Mortgage Loan shall
automatically be deemed transferred and assigned to the Servicer and all
benefits and burdens of ownership thereof, including the right to accrued
interest thereon from the date of purchase and the risk of default thereon,
shall pass to the Servicer. The Servicer shall promptly deliver to
the Trustee a certification of a Servicing Officer to the effect that all
requirements of this paragraph have been satisfied with respect to a Mortgage
Loan to be repurchased pursuant to this paragraph.
The
Servicer shall deposit the Purchase Price for any Mortgage Loan repurchased
pursuant to Section 3.12 in the Certificate Account pursuant to
Section 3.06 within one Business Day after the purchase of the Mortgage
Loan. Upon receipt by the Trustee of written notification of any such
deposit signed by a Servicing Officer, the Trustee shall release to the Servicer
the related Mortgage File and shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, as shall be necessary
to
vest in the Servicer any Mortgage Loan previously transferred and assigned
pursuant hereto. The Servicer covenants and agrees to indemnify the
Trust Fund against any liability for any “prohibited transaction” taxes and any
related interest, additions, and penalties imposed on the Trust Fund established
hereunder as a result of any modification of a Mortgage Loan effected pursuant
to this Section, or any purchase of a Mortgage Loan by the Servicer in
connection with a modification (but such obligation shall not prevent the
Servicer or any other appropriate Person from contesting any such tax in
appropriate proceedings and shall not prevent the Servicer from withholding
payment of such tax, if permitted by law, pending the outcome of such
proceedings). The Servicer shall have no right of reimbursement for
any amount paid pursuant to the foregoing indemnification, except to the extent
that the amount of any tax, interest, and penalties, together with interest
thereon, is refunded to the Trust Fund.
Section
3.13. Trustee
to Cooperate; Release of Mortgage Files.
Upon
the
payment in full of any Mortgage Loan, or the receipt by the Servicer of a
notification that payment in full will be escrowed in a manner customary for
such purposes, the Servicer will immediately notify the Trustee by delivering
a
Request for Release substantially in the form of Exhibit N. Upon
receipt of the request, the Trustee shall promptly release the related Mortgage
File to the Servicer, and the Trustee shall at the Servicer’s direction execute
and deliver to the Servicer the request for reconveyance, deed of reconveyance,
or release or satisfaction of mortgage or such instrument releasing the lien
of
the Mortgage in each case provided by the Servicer, together with the Mortgage
Note with written evidence of cancellation thereon. The Servicer is
authorized to cause the removal from the registration on the MERS System of
such
Mortgage and to execute and deliver, on behalf of the Trustee and the
Certificateholders or any of them, any and all instruments of satisfaction
or
cancellation or of partial or full release. Expenses incurred in
connection with any instrument of satisfaction or deed of reconveyance shall
be
chargeable to the related Mortgagor.
From
time
to time and as shall be appropriate for the servicing or foreclosure of any
Mortgage Loan, including for such purpose collection under any policy of flood
insurance, any fidelity bond or errors or omissions policy, or for the purposes
of effecting a partial release of any Mortgaged Property from the lien of the
Mortgage or the making of any corrections to the Mortgage Note or the Mortgage
or any of the other documents included in the Mortgage File, the Trustee shall,
upon delivery to the Trustee of a Request for Release in the form of Exhibit
M
signed by a Servicing Officer, release the Mortgage File to the Servicer or
its
designee. Subject to the further limitations set forth below, the
Servicer shall cause the Mortgage File or documents so released to be returned
to the Trustee when the need therefor by the Servicer no longer exists, unless
the Mortgage Loan is liquidated and the proceeds thereof are deposited in the
Certificate Account, in which case the Servicer shall deliver to the Trustee
a
Request for Release in the form of Exhibit N, signed by a Servicing
Officer.
69
If
the
Servicer at any time seeks to initiate a foreclosure proceeding in respect
of
any Mortgaged Property as authorized by this Agreement, the Servicer shall
deliver to the Trustee, for signature, as appropriate, any court pleadings,
requests for trustee’s sale, or other documents necessary to effectuate such
foreclosure or any legal action brought to obtain judgment against the Mortgagor
on the Mortgage Note or the Mortgage or to obtain a deficiency judgment or
to
enforce any other remedies or rights provided by the Mortgage Note or the
Mortgage or otherwise available at law or in equity.
Section
3.14. Documents,
Records and Funds in Possession of the Servicer to be Held for the
Trustee.
The
Servicer shall account fully to the Trustee for any funds it receives or
otherwise collects as Liquidation Proceeds or Insurance Proceeds in respect
of
any Mortgage Loan. All Mortgage Files and funds collected or held by,
or under the control of, the Servicer in respect of any Mortgage Loans, whether
from the collection of principal and interest payments or from Liquidation
Proceeds, including any funds on deposit in the Certificate Account, shall
be
held by the Servicer for and on behalf of the Trustee and shall be and remain
the sole and exclusive property of the Trustee, subject to the applicable
provisions of this Agreement. The Servicer also agrees that it shall
not create, incur or subject any Mortgage File or any funds that are deposited
in the Certificate Account, the Distribution Account, or any Escrow Account,
or
any funds that otherwise are or may become due or payable to the Trustee for
the
benefit of the Certificateholders, to any claim, lien, security interest,
judgment, levy, writ of attachment, or other encumbrance, or assert by legal
action or otherwise any claim or right of setoff against any Mortgage File
or
any funds collected on, or in connection with, a Mortgage Loan, except, however,
that the Servicer shall be entitled to set off against and deduct from any
such
funds any amounts that are properly due and payable to the Servicer under this
Agreement.
Section
3.15. Servicing
Compensation.
The
Servicer may retain or withdraw from the Certificate Account the Servicing
Fee
for each Mortgage Loan for the related Distribution
Date. Notwithstanding the foregoing, the Servicing Fee payable to the
Servicer shall be reduced by the lesser of the aggregate of the Prepayment
Interest Shortfalls with respect to the Distribution Date and the aggregate
Compensating Interest for the Distribution Date.
Additional
servicing compensation in the form of Excess Proceeds, Prepayment Interest
Excess, assumption fees and all income net of any losses realized from Permitted
Investments shall be retained by the Servicer to the extent not required to
be
deposited in the Certificate Account pursuant to
Section 3.06. The Servicer shall be required to pay all expenses
incurred by it in connection with its servicing activities hereunder (including
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.
70
Section
3.16. Access
to Certain Documentation.
The
Servicer shall provide to the OTS and the FDIC and to comparable regulatory
authorities supervising Holders of Certificates and Certificate Owners and
the
examiners and supervisory agents of the OTS, the FDIC, and such other
authorities, access to the documentation regarding the Mortgage Loans required
by applicable regulations of the OTS and the FDIC. Access shall be
afforded without charge, but only upon reasonable prior written request and
during normal business hours at the offices designated by the
Servicer. Nothing in this Section 3.16 shall limit the
obligation of the Servicer to observe any applicable law prohibiting disclosure
of information regarding the Mortgagors and the failure of the Servicer to
provide access as provided in this Section 3.16 as a result of such
obligation shall not constitute a breach of this Section 3.16.
Section
3.17. Annual
Statement as to Compliance.
(a) By
March 15 of each year, commencing with 2008, the Servicer shall deliver to
the
Trustee via electronic mail (XXXXX.Xxxxxxxxxxxxx@xx.xxx) and the
Depositor an Officer’s Certificate signed by two Servicing Officers stating, as
to each signer thereof, that (i) a review of the activities of the Servicer
during the preceding calendar year (or applicable portion thereof) and of the
performance of the Servicer under this Agreement has been made under such
officer’s supervision, and (ii) to the best of such officer’s knowledge, based
on the review, the Servicer has fulfilled all its obligations under this
Agreement, in all material respects throughout the year (or applicable portion
thereof), or, if there has been a failure to fulfill any obligation in any
material respect, specifying each failure known to the officer and the nature
and status thereof.
(b) [Reserved].
(c) The
Trustee shall forward a copy of each such statement to each Rating
Agency. Copies of such statement shall be provided by the Trustee to
any Certificateholder or Certificate Owner upon request at the Servicer’s
expense, provided such statement is delivered by the Servicer to the
Trustee.
Section
3.18. Errors
and Omissions Insurance; Fidelity Bonds.
The
Servicer shall obtain and maintain in force (a) policies of insurance covering
errors and omissions in the performance of its obligations as Servicer hereunder
and (b) a fidelity bond covering its officers, employees, and
agents. Each policy and bond shall, together, comply with the
requirements from time to time of FNMA or FHLMC for persons performing servicing
for mortgage loans purchased by FNMA or FHLMC. If any policy or bond
ceases to be in effect, the Servicer shall obtain a comparable replacement
policy or bond from an insurer or issuer meeting the above requirements as
of
the date of the replacement.
Section
3.19. The
Corridor Contract and the Swap Contract.
(a) The
Depositor shall cause the Supplemental Interest Trustee to enter into the
Corridor Contract. The Supplemental Interest Trustee’s rights to
receive certain proceeds of the Corridor Contract shall not be an asset of
the
Trust Fund or of any REMIC. The Supplemental Interest Trustee shall
deposit any amounts received from time to time from the Corridor Counterparty
into the Supplemental Interest Reserve Fund.
The
Supplemental Interest Trustee shall (i) be subject to a standard of care and
(ii) be entitled to all of the rights, privileges, immunities and indemnities
identical to that of the Trustee under Article Eight of this
Agreement.
71
Beginning
on the Distribution Date in June 2007 and on each Distribution Date thereafter
through the Corridor Contract Termination Date, amounts received on the Corridor
Contract will be paid to the Supplemental Interest Trustee. The
Supplemental Interest Trustee will then disburse the portion of these amounts
that is owed to the LIBOR Certificates to the Distribution Account and then
distribute those amounts to pay any Net Rate Carryover with respect to the
LIBOR
Certificates prior to distributions of Excess Cashflow and Net Swap
Payments.
Any
amounts remaining after this application will be transferred to the Supplemental
Interest Trust and then distributed to the Class C Certificates and will not
be
available for the payment of any Net Rate Carryover on any class of certificates
on future Distribution Dates. If the Corridor Contract is subject to
an early termination, any early termination payment received by the Supplemental
Interest Trust in respect of the Corridor Contract will be deposited by the
Supplemental Interest Trustee into the Supplemental Interest Reserve Fund for
payments on future Distribution Dates until the Corridor Contract Termination
Date.
With
respect to the Corridor Contract and any Distribution Date on or after June
2007
up to and including the Corridor Contract Termination Date, the amount payable
by the Corridor Counterparty under the Corridor Contract will equal the product
of (i) the excess, if any, of (x) the lesser of (A) One–Month LIBOR (as
determined by the Corridor Counterparty) and (B) the Corridor Contract Ceiling
Rate, over (y) the Corridor Contract Strike Rate for that Distribution Date,
(ii) the Corridor Contract Notional Balance for that Distribution Date and
(iii)
(x) the number of days in the related Interest Accrual Period divided by (y)
360.
Upon
the
Supplemental Interest Trustee obtaining actual knowledge of the rating of the
Corridor Counterparty falling below the relevant levels set forth in the
Corridor Contract (provided, however, that the Supplemental Interest Trustee
shall have no obligation to conduct an independent investigation or inquiry
in
relation thereto), the Depositor shall instruct the Supplemental Interest
Trustee in writing to enforce its rights thereunder. Such
instructions shall be specific as to mode or method of enforcement. If the
Corridor Counterparty appropriately elects to post collateral under the Credit
Support Annex executed on the Closing Date, the Supplemental Interest Trustee
shall demand payment of the Delivery Amount (as defined in the ISDA Credit
Support Annex). In addition, the Supplemental Interest Trustee shall
set up the Credit Support Collateral Account in accordance with
Section 3.06 to hold cash or other eligible investments pledged under such
ISDA Credit Support Annex. Any cash or other eligible investments
pledged under an ISDA Credit Support Annex shall not be part of the Supplemental
Interest Reserve Fund or the Distribution Account unless they are applied in
accordance with such ISDA Credit Support Annex to make a payment due to the
Supplemental Interest Trustee pursuant to the Corridor Contract.
Upon
the
Supplemental Interest Trustee obtaining actual knowledge of an Event of Default
(as defined in the Corridor Contract) or Termination Event (as defined in the
Corridor Contract) for which the Supplemental Interest Trustee has the right
to
designate an Early Termination Date (as defined in the Corridor Contract)
(provided, however, that the Supplemental Interest Trustee shall have no
obligation to conduct an independent investigation or inquiry in relation
thereto), the Depositor shall instruct in writing the Supplemental Interest
Trustee as to whether to designate an Early Termination Date; provided, however,
that the Supplemental Interest Trustee shall provide written notice to each
Rating Agency following the Event of Default or Termination
Event. Upon the termination of the Corridor Contract under the
circumstances contemplated by this Section 3.19(a), the Supplemental
Interest Trustee shall use its reasonable best efforts to enforce its rights
as
may be permitted by the terms of the Corridor Contract and consistent with
the
terms of this Agreement.
In
the
event that the Corridor Counterparty in respect of a replacement Corridor
Contract pays any upfront amount to the Supplemental Interest Trustee, any
portion of such upfront amount paid by the Corridor Counterparty in respect
of a
replacement Corridor Contract that is remitted to the Supplemental Interest
Trustee shall be available for distribution on each succeeding Distribution
Date
in the manner described in Section 3.19(a).
72
(b) The
Depositor shall cause the Swap Trustee to enter into the Swap
Contract. The Swap Trustee’s rights to receive certain proceeds of
the Swap Contract shall not be an asset of the Trust Fund or of any
REMIC. The Swap Trustee shall deposit any amounts received from time
to time from the Swap Counterparty into the Swap Account.
The
Swap
Trustee shall (i) be subject to a standard of care and (ii) be entitled to
all
of the rights, privileges, immunities and indemnities identical to that of
the
Trustee under Article Eight of this Agreement.
On
the
Business Day preceding each Distribution Date, the Swap Trustee shall notify
the
Trustee of any amounts distributable to the LIBOR Certificates pursuant to
Section 4.02(d) that will remain unpaid following all distributions to be
made on such Distribution Date pursuant to Section 4.02(a) through
(c).
Upon
the
Swap Trustee obtaining actual knowledge of the rating of the Swap Counterparty
falling below the relevant levels set forth in the Swap Contract (provided,
however, that the Swap Trustee shall have no obligation to conduct an
independent investigation or inquiry in relation thereto), the Depositor shall
instruct the Swap Trustee in writing to enforce its rights
thereunder. Such instructions shall be specific as to mode or method
of enforcement. If the Swap Counterparty appropriately elects to post
collateral under the Credit Support Annex executed on the Closing Date, the
Swap
Trustee shall demand payment of the Delivery Amount (as defined in the ISDA
Credit Support Annex). The Swap Trustee shall set up the Credit
Support Collateral Account in accordance with Section 3.06 to hold cash or
other eligible investments pledged under such ISDA Credit Support
Annex. Any cash or other eligible investments pledged under an ISDA
Credit Support Annex shall not be part of the Swap Account or the Distribution
Account unless they are applied in accordance with such ISDA Credit Support
Annex to make a payment due to the Swap Trustee pursuant to the Swap
Contract.
Upon
the
Swap Trustee obtaining actual knowledge of an Event of Default (as defined
in
the Swap Contract) or Termination Event (as defined in the Swap Contract) for
which the Swap Trustee has the right to designate an Early Termination Date
(as
defined in the Swap Contract) (provided, however, that the Swap Trustee shall
have no obligation to conduct an independent investigation or inquiry in
relation thereto), the Depositor shall instruct the Swap Trustee in writing
as
to whether to designate an Early Termination Date; provided, however, that
the
Swap Trustee shall provide written notice to each Rating Agency following the
Event of Default or Termination Event. Upon the termination of the
Swap Contract under the circumstances contemplated by this Section 3.19(b),
the Swap Trustee shall use its reasonable best efforts to enforce its rights
as
may be permitted by the terms of the Swap Contract and consistent with the
terms
of this Agreement.
Notwithstanding
any other provision in this Agreement, in the event that the Swap Contract
is
terminated and the Swap Trust enters into a replacement swap contract and the
Swap Trust is entitled to receive a payment from a replacement swap
counterparty, the Swap Trustee shall direct the replacement swap counterparty
to
make such payment to the Swap Account in accordance with the provisions of
this
paragraph. The Swap Trustee shall pay to the Swap Counterparty the
lesser of (x) the amount so received and (y) any Swap Termination Payment owed
to the Swap Counterparty (to the extent not already paid by the Swap Trust)
that
is being replaced immediately upon receipt of the replacement swap counterparty
payment, regardless of whether the date of receipt thereof is a Distribution
Date; provided that to the extent that the replacement swap counterparty payment
is less than the Swap Termination Payment owed to the Swap Counterparty, any
remaining amounts will be paid to the Swap Counterparty on the subsequent
Distribution Date (unless the replacement swap counterparty payment is paid
to
the Swap Counterparty on a Distribution Date, in which case such
remaining amounts will be paid on such Distribution Date) in accordance with
the
priority of payments described in Section 4.02 of this Agreement. For
the avoidance of doubt, the parties agree that the Swap Counterparty shall
have
first priority to any replacement swap counterparty payment over the payment
by
the Swap Trust to Certificateholders, any servicer, any custodian, the Trustee,
Swap Trustee or any other Person.
73
In
the
event that the Swap Counterparty in respect of a replacement swap contract
pays
any upfront amount to the Swap Trustee, any portion of such upfront amount
paid
by the Swap Counterparty in respect of a replacement swap contract that is
remitted to the Swap Trustee shall be available, to the extent that the Interest
Funds and the Principal Remittance Amount were used on prior Distribution Dates
to cover any Swap Termination Payments due to that Swap Counterparty under
the
original Swap Contract, for distribution on each succeeding Distribution Date
in
the manner described in Section 4.02(d).
The
Swap
Counterparty shall be an express third party beneficiary of this Agreement
for
the purpose of enforcing the provisions hereof to the extent of the Swap
Counterparty’s rights explicitly specified herein as if a party to this
Agreement.
Section
3.20. Notification
of Adjustments.
On
each
Adjustment Date and Payment Adjustment Date, the Servicer shall make interest
rate and payment adjustments, respectively, for each Mortgage Loan in compliance
with the requirements of the related Mortgage and Mortgage Note and applicable
regulations. The Servicer shall execute and deliver the notices
required by each Mortgage and Mortgage Note and applicable regulations regarding
interest rate adjustments and Scheduled Payment adjustments. The
Servicer also shall provide timely notification to the Trustee of all applicable
data and information regarding such interest rate adjustments and the Servicer’s
methods of implementing such interest rate adjustments and Scheduled Payment
adjustments. Upon the discovery by the Servicer or the Trustee that
the Servicer has failed to adjust or has incorrectly adjusted a Mortgage Rate
or
a Scheduled Payment pursuant to the terms of the related Mortgage Note and
Mortgage, the Servicer shall immediately deposit in the Certificate Account
from
its own funds the amount of any loss caused thereby without reimbursement
therefor; provided, however, the Servicer shall not be liable with respect
to
any interest rate adjustments or Scheduled Payment adjustments made by any
servicer prior to the Servicer.
Section
3.21. Prepayment
Charges.
(a) The
Servicer will not waive any part of any Prepayment Charge unless the waiver
relates to a default or a reasonably foreseeable default, the Prepayment Charge
would cause an undue hardship to the related borrower, the Mortgaged Property
is
sold by the Mortgagor, the collection of any Prepayment Charge would violate
any
relevant law or regulation or the waiving of the Prepayment Charge would
otherwise benefit the Trust Fund and it is expected that the waiver would
maximize recovery of total proceeds taking into account the value of the
Prepayment Charge and related Mortgage Loan and doing so is standard and
customary in servicing similar Mortgage Loans (including any waiver of a
Prepayment Charge in connection with a refinancing of a Mortgage Loan that
is
related to a default or a reasonably foreseeable default). The
Servicer will not waive a Prepayment Charge in connection with a refinancing
of
a Mortgage Loan that is not related to a default or a reasonably foreseeable
default.
(b) If
a Prepayment Charge is waived other than as permitted by the prior paragraph,
then the Servicer is required to pay the amount of such waived Prepayment
Charge, for the benefit of the Holders of the Class P Certificates, by
depositing such amount into the Distribution Account from its own funds, without
any right of reimbursement therefor, together with and at the time that the
amount prepaid on the related Mortgage Loan is required to be deposited into
the
Distribution Account.
74
(c) The
Seller represents and warrants to the Depositor and the Trustee , as of the
Closing Date, that the information in the Prepayment Charge Schedule (including
the attached prepayment charge summary) is complete and accurate in all material
respects at the dates as of which the information is furnished and each
Prepayment Charge is permissible and enforceable in accordance with its terms
under applicable state law, except as the enforceability thereof is limited
due
to acceleration in connection with a foreclosure or other involuntary
payment.
(d) Upon
discovery by the Servicer or upon actual knowledge by a Responsible Officer
of
the Trustee (provided, however, that the Trustee shall have no obligation to
conduct an independent investigation or inquiry in relation thereto) of a breach
of the foregoing clause (c) that materially and adversely affects the right
of
the Holders of the Class P Certificates to any Prepayment Charge, the party
discovering the breach shall give prompt written notice to the other
parties. Within 60 days of the earlier of discovery by the Servicer
or receipt of notice by the Servicer of breach, the Servicer shall cure the
breach in all material respects or shall pay into the Certificate Account the
amount of the Prepayment Charge that would otherwise be due from the Mortgagor,
less any amount representing such Prepayment Charge previously collected and
paid by the Servicer into the Certificate Account.
Section
3.22. Late
Payment Fees.
(a) The
Servicer shall not waive any part of any Late Payment Fee unless (i) the
collection of any Late Payment Fee would violate any relevant law or regulation
or (ii) the waiving of the Late Payment Fee would otherwise benefit the Trust
Fund and it is expected that the waiver would maximize recovery of total
proceeds taking into account the value of the Late Payment Fee and related
Mortgage Loan and doing so is standard and customary in servicing similar
Mortgage Loans (including the waiver of a Late Payment Fee in connection with
a
refinancing of a Mortgage Loan that is related to a default or a reasonably
foreseeable default).
(b) If
the covenants made by the Servicer in clause (a) above is breached, the Servicer
must pay into the Certificate Account prior to the Distribution Account Deposit
Date following the end of the related Prepayment Period the amount of the waived
Late Payment Fee.
(c) The
Servicer shall remit Late Payment Fees assessable and not waived pursuant to
clause (a) above in accordance with Section 3.09.
75
Article
Four
DISTRIBUTIONS AND
ADVANCES BY
THE SERVICER
Section
4.01. Advances.
(a) The
Servicer shall determine on or before each Servicer Advance Date whether it
is
required to make an Advance pursuant to the definition thereof. If
the Servicer determines it is required to make an Advance, it shall, on or
before the Servicer Advance Date, either (i) deposit into the Certificate
Account an amount equal to the Advance or (ii) make an appropriate entry in
its
records relating to the Certificate Account that any Amount Held for Future
Distribution has been used by the Servicer in discharge of its obligation to
make any such Advance. Any funds so applied shall be replaced by the
Servicer by deposit in the Certificate Account no later than the close of
business on the next Servicer Advance Date. The Servicer shall be
entitled to be reimbursed from the Certificate Account for all Advances of
its
own funds made pursuant to this Section 4.01 as provided in
Section 3.09. The obligation to make Advances with respect to
any Mortgage Loan shall continue if such Mortgage Loan has been foreclosed
or
otherwise terminated and the Mortgaged Property has not been
liquidated. The Servicer shall inform the Trustee of the amount of
the Advance to be made on each Servicer Advance Date no later than the second
Business Day before the related Distribution Date.
(b) If
the Servicer determines that it will be unable to comply with its obligation
to
make the Advances as and when described in the second sentence of
Section 4.01(a), it shall use its best efforts to give written notice
thereof to the Trustee (each such notice an “Advance
Notice”; and such notice may be given by telecopy), not later than
3:00 P.M., New York time, on the Business Day immediately preceding the related
Servicer Advance Date, specifying the amount that it will be unable to deposit
(each such amount an “Advance Deficiency”) and
certifying that such Advance Deficiency constitutes an Advance hereunder and
is
not a Nonrecoverable Advance. If the Trustee receives a Trustee
Advance Notice on or before 3:00 P.M., New York time on a Servicer Advance
Date,
the Trustee is entitled to immediately terminate the Servicer under
Section 7.01, and shall, not later than 3:00 P.M., New York time, on the
related Distribution Date, deposit in the Distribution Account an amount equal
to the Advance Deficiency identified in such Trustee Advance Notice unless
it is
prohibited from so doing by applicable law. Notwithstanding the
foregoing, the Trustee shall not be required to make such deposit if the Trustee
shall have received written notification from the Servicer that the Servicer
has
deposited or caused to be deposited in the Certificate Account an amount equal
to such Advance Deficiency by 3:00 P.M. New York time on the related
Distribution Date. If the Trustee has not terminated the Servicer,
the Servicer shall reimburse the Trustee for the amount of any Advance
(including interest at the Prime Rate on the day of such reimbursement published
in The Wall Street Journal) on such amount, made by the Trustee
pursuant to this Section 4.01(b) not later than the second day following
the related Servicer Advance Date. In the event that the Servicer
does not reimburse the Trustee in accordance with the requirements of the
preceding sentence, the Trustee shall immediately (a) terminate all of the
rights and obligations of the Servicer under this Agreement in accordance with
Section 7.01 and (b) subject to the limitations set forth in
Section 3.05, assume all of the rights and obligations of the Servicer
hereunder.
(c) The
Servicer shall, not later than the close of business on the Business Day
immediately preceding each Servicer Advance Date, deliver to the Trustee a
report (in form and substance reasonably satisfactory to the Trustee) that
indicates (i) the Mortgage Loans with respect to which the Servicer has
determined that the related Scheduled Payments should be advanced and (ii)
the
amount of the related Scheduled Payments. The Servicer shall deliver
to the Trustee on the related Servicer Advance Date an Officer’s Certificate of
a Servicing Officer indicating the amount of any proposed Advance determined
by
the Servicer to be a Nonrecoverable Advance.
76
Section
4.02. Priorities
of Distribution.
(a) Distributions
of Interest Funds. On each Distribution Date, the aggregate
Interest Funds for such Distribution Date shall be allocated by the Trustee
from
the Distribution Account in the following priority, until such Interest Funds
have been fully distributed:
(i) from
the Interest Funds related to each Loan Group in the following
priority:
(A) to
the Swap Account, the Allocable Portion of any Net Swap Payment and Swap
Termination Payments (other than a Swap Termination Payment due to a Swap
Counterparty Trigger Event) payable to the Swap Counterparty under the Swap
Contract with respect to that Distribution Date;
(B) concurrently
to each Class of interest-bearing Senior Certificates related to that Loan
Group, the Current Interest and Interest Carry Forward Amount for each such
Class and that Distribution Date, pro rata, based on the Current Interest and
Interest Carry Forward Amount for each such Class and that Distribution Date;
and
(ii) the
Interest Funds remaining undistributed from each Loan Group will be aggregated
and distributed as follows:
(A) concurrently,
to each Class of interest-bearing Senior Certificates, pro rata, based on their
respective entitlements for that Distribution Date, Current Interest and any
Interest Carry Forward Amount remaining unpaid;
(B) sequentially,
to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6,
Class M-7, Class M-8 and Class M-9 Certificates, in that order, the Current
Interest and Interest Carry Forward Amount for each such Class and that
Distribution Date; and
(iii) for
application as part of the Excess Cashflow for that Distribution Date, pursuant
to Section 4.02(c) below.
(b) Distributions
of Principal Distribution Amount. On each Distribution Date, an
amount up to the aggregate Principal Distribution Amount for that Distribution
Date shall be distributed (with the aggregate Principal Remittance Amount being
applied first and the Extra Principal Distribution Amount being applied
thereafter) by the Trustee from the Distribution Account in the following
priority until the aggregate Principal Distribution Amount has been fully
distributed:
(i) For
each Distribution Date prior to the Stepdown Date or on which a Trigger Event
is
in effect, in the following priority:
(1)
concurrently:
(x)
from
the Principal Distribution Amount for Loan Group 1 in the following
priority:
(A) to
the Swap Account, the product of the (x) Allocable Portion for that Distribution
Date for that Loan Group and (y) the Net Swap Payment and Swap Termination
Payment, payable to the Swap Counterparty with respect to that Distribution
Date
not previously paid from the Interest Funds;
77
(B) to
the Class A-R Certificates, until its Class Certificate Balance is reduced
to zero;
(C) concurrently,
to the Class 1-A-1 and Class 1-A-2 Certificates, pro rata, until their
respective Class Certificate Balances are reduced to zero; and
(D) concurrently,
to the Class 2-A-1, Class 2-A-2, Class 2-A-3 Certificates, pro rata (after
any
distributions to such Classes pursuant to clause (y)(ii) below), until their
Class Certificates Balances are reduced to zero;
(y)
from
the Principal Distribution Amount for Loan Group 2 in the following
priority:
(A) to
the Swap Account, the product of the (x) Allocable Portion for that Distribution
Date for that Loan Group and (y) the Net Swap Payment and Swap Termination
Payment, payable to the Swap Counterparty with respect to that Distribution
Date
not previously paid from the Interest Funds;
(B) concurrently,
to the Class 2-A-1, Class 2-A-2 and Class 2-A-3 Certificates, pro rata, until
their respective Class Certificate Balances are reduced to zero;
and
(C) concurrently,
to Class 1-A-1 and Class 1-A-2 Certificates, pro rata, (after any distribution
to such Classes pursuant to clause (x)(C) above), until their Class Certificate
Balances are reduced to zero;
(2)
from
the remaining Principal Distribution Amount for each Loan Group, in the
following priority:
(x) sequentially,
to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8 and Class M-9 Certificates, in that order, until their respective
Class Certificate Balances are reduced to zero; and
(y) any
remainder as part of the Excess Cashflow to be allocated as described under
Section 4.02(c) below.
(ii) For
each Distribution Date on or after the Stepdown Date and so long as a Trigger
Event is not in effect, in the following priority:
(1)
concurrently:
(x)
from
the Principal Distribution Amount for Loan Group 1 in the following
priority:
78
(A) to
the Swap Account, the product of the (x) related Allocable Portion for that
Distribution Date and for that Loan Group and (y) the Net Swap Payment and
Swap
Termination Payment, payable to the Swap Counterparty with respect to that
Distribution Date not previously paid from the Interest Funds;
(B) in
an amount up to the Group 1 Senior Principal Distribution Amount for that
Distribution Date, concurrently, to the Class 1-A-1 and Class 1-A-2
Certificates, pro rata, until their respective Class Certificate Balances are
reduced to zero; and
(C) concurrently,
to the Class 2-A-1, Class 2-A-2, Class 2-A-3 Certificates, pro rata (after
any
distributions to such Classes pursuant to clause (y) below), any Group 2 Senior
Principal Distribution Amount remaining undistributed for that Distribution
Date, until their Class Certificates Balances are reduced to zero
(y)
from
the Principal Distribution Amount for Loan Group 2 in the following
priority:
(A) to
the Swap Account, the product of the (x) Allocable Portion for that Distribution
Date and Loan Group and (y) the Net Swap Payment and Swap Termination Payment,
payable to the Swap Counterparty with respect to that Distribution Date not
previously paid from the Interest Funds;
(B) in
an amount up to the Group 2 Senior Principal Distribution Amount for that
Distribution Date, concurrently, to the Class 2-A-1, Class 2-A-2 and Class
2-A-3
Certificates, pro rata, until their respective Class Certificate Balances are
reduced to zero; and
(C) concurrently,
to Class 1-A-1 and Class 1-A-2 Certificates, pro rata, (after any distribution
to such Classes pursuant to clause (x)(ii) above), any Group 1 Senior Principal
Distribution Amount remaining undistributed for that Distribution Date, until their Class Certificate
Balances are reduced to zero;
(2)
from
the remaining Principal Distribution Amount for each Loan Group, as
follows:
(x) sequentially,
to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5 Class M-6, Class
M-7, Class M-8 and Class M-9 Certificates, in that order, the Subordinated
Class
Principal Distribution Target Amount for each such Class for that Distribution
Date, in each case until its Class Certificate Balance is reduced to zero;
and
(y) any
remainder as part of the Excess Cashflow to be allocated as described under
4.02(c) below.
79
(c) Distributions
of Excess Cashflow. With respect to any Distribution Date, any
Excess Cashflow will be paid to the Classes of Certificates in the following
priority, in each case to the extent of remaining Excess Cashflow:
(i) to
the Classes of Certificates then entitled to receive distributions in respect
of
principal, in an amount equal to the Extra Principal Distribution Amount for
that Distribution Date, distributable to those Classes as part of the Principal
Distribution Amount pursuant to Section 4.02(b) of this Agreement;
(ii) concurrently
and pro rata (x) sequentially, to the Class 1-A-1 and Class 1-A-2 Certificates,
in that order, the Unpaid Realized Loss Amount for each such Class; and (y)
sequentially, to the Class 2-A-1, Class 2-A-2 and Class 2-A-3 Certificates,
in
that order, the Unpaid Realized Loss Amount for each such Class;
(iii) sequentially,
to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8 and Class M-9 Certificates, in that order, the Unpaid Realized
Loss Amount for each such Class;
(iv) concurrently,
to each Class of LIBOR Certificates, pro rata based on their unpaid Net Rate
Carryover, any Net Rate Carryover for each such Class (after giving effect
to
distributions from the Supplemental Interest Trust);
(v) to
the Swap Trust to pay any unpaid Swap Termination Payment due to the Swap
Counterparty under the Swap Contract; and;
(vi) to
the Class C Certificates, the Class C Distributable Amount; and
(vii) to
the Class A-R Certificates.
(d) (i)
On each Distribution Date on or prior to the Swap Contract Termination Date,
following the deposits to the Swap Account pursuant to Section 3.06(g) and
the distributions described under Section 4.02(a), (b) and (c), the Trustee
shall distribute amounts on deposit in the Swap Account in the following amounts
and order of priority:
(A) to
the Swap Counterparty, any Net Swap Payment and Swap Termination Payment (other
than any Swap Termination Payments due to a Swap Counterparty Trigger
Event);
(B) concurrently,
to each Class of interest-bearing Senior Certificates, any Current Interest
and
Interest Carry Forward Amount remaining unpaid, pro rata based on the Current
Interest and Interest Carry Forward Amount for each such Class and that
Distribution Date;
(C) sequentially,
to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8 and Class M-9 Certificates, in that order, in each case in an
amount equal to any Current Interest and Interest Carry Forward Amount remaining
unpaid for such Class;
(D) to
the Class or Classes of Certificates then entitled to receive distributions
in
respect of principal, any remaining Overcollateralization Deficiency
Amount;
80
(E) concurrently
and pro rata, (x) sequentially, the Class 1-A-1 and Class 1-A-2 Certificates,
in
that order, the Unpaid Realized Loss amount for each such Class; and (y)
sequentially, to the Class 2-A-1, Class 2-A-2 and Class 2-A-3 Certificates,
in
that order, the Unpaid Realized Loss Amount for such Class
(F) sequentially,
to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8 and Class M-9 Certificates, in that order, the Unpaid Realized
Loss Amount for each such Class;
(G) concurrently,
to each Class of Senior Certificates (other than the Class A-R Certificates),
pro rata, based on their entitlements, any remaining Net Rate Carryover for
each
such Class (after giving effect to distributions from the Supplemental Interest
Trust);
(H) sequentially,
to the Class M 1, Class M 2, Class M 3, Class M 4, Class M 5, Class M 6, Class
M-7, Class M-8 and Class M-9 Certificates, in that order, any remaining Net
Rate
Carryover for each such Class (after giving effect to distributions from the
Supplemental Interest Trust);
(I) to
the Swap Counterparty any Swap Termination Payment owed due to a Swap
Counterparty Trigger Event; and
(J) to
the Holders of the Class C Certificates.
Notwithstanding
the foregoing, the
cumulative amount paid with respect to clause (D) above shall not, on any
Distribution Date, exceed the cumulative amount of Realized Losses incurred
on
the Mortgage Loans as of that Distribution Date.
(e) To
the extent that a Class of LIBOR Certificates receives interest in excess of
the
Available Funds Rate Cap, such interest shall be deemed to have been paid to
the
Carryover Reserve Fund and then paid by the Carryover Reserve Fund to those
Certificateholders. For purposes of the Code, amounts deemed
deposited in the Carryover Reserve Fund shall be deemed to have first been
distributed to the Class C Certificates.
(f) [Reserved].
(g) On
each Distribution Date, all amounts representing Prepayment Charges (and amounts
paid by the Servicer for waiving them ) received during the related Prepayment
Period will be distributed to the Holders of the Class P
Certificates. On the Distribution Date immediately following the
expiration of the latest Prepayment Charge Period of the Mortgage Loans, the
$100 held in trust for the Class P Certificates will be distributed to the
Holders of the Class P Certificates. On each Distribution Date, all
amounts representing Late Payment Fees assessable during the related Prepayment
Period (and amounts paid by the Servicer for waiving them less any such amounts
not deposited into the Distribution Account by the preceding Distribution
Account Deposit Date plus any such amounts deposited into the Distribution
Account with respect to prior Prepayment Periods) will be distributed to the
Holders of the Class L Certificates.
(h) [Reserved]
(i) Application
of Applied Realized Loss Amounts. On each Distribution Date, the
Trustee shall allocate the Applied Realized Loss Amount to reduce the Class
Certificate Balances of the Subordinated Certificates, sequentially, to the
Class X-0, Xxxxx X-0, Class M-7, Class M-6, Class M-5, Class M-4, Class M-3,
Class M-2 and Class M-1 Certificates, in that order, until their Class
Certificate Balances are reduced to zero. After the Class Certificate
Balance of each Class of Subordinated Certificates have been reduced to zero,
(i) if the aggregate Class Certificate Balance of the Group 1 Senior
Certificates exceeds the aggregate Stated Principal Balance of the Mortgage
Loans in Loan Group 1, the amount of that excess will be allocated sequentially
to the Class 1-A-2 and Class 1-A-1 Certificates, in that order, until their
respective Class Certificate Balances are reduced to zero; and (ii) if the
aggregate Class Certificate Balance of the Group 2 Senior Certificates exceeds
the aggregate Stated Principal Balance of the Mortgage Loans in Loan Group
2,
the amount of that excess will be allocated sequentially to the Class 2-A-3,
Class 2-A-2 and Class 2-A-1 Certificates, in that order, until their respective
Class Certificate Balances are reduced to zero.
81
(j) Application
of Subsequent Recoveries. If Subsequent Recoveries have been
received with respect to a Liquidated Mortgage Loan in a Loan Group, the amount
of such Subsequent Recoveries will be applied to the related Classes of
Certificates as follows: (a) in the case of Group 1 Certificates, sequentially,
to the Class 1-A-1 and Class 1-A-2 Certificates, pro rata, and (b) in the case
of Group 2 Certificates, sequentially, to the Class 2-A-1, Class 2-A-2 and
Class
2-A-3 Certificates, in that order, in each case to increase the Class
Certificate Balance of each such Class in an amount up to the amount of Unpaid
Realized Loss Amounts on such Class. Following application of
Subsequent Recoveries to the related Senior Certificates any remaining amounts
from both Loan Groups will be distributed sequentially, in the order of payment
priority, to increase the Class Certificate Balance of each Class of
Subordinated Certificates to which Realized Losses have been allocated, but
in
each case by not more than the amount of Unpaid Realized Loss Amounts on that
Class of Certificates. Holders of such Certificates will not be
entitled to any payment in respect of Current Interest on the amount of such
increases for any Interest Accrual Period preceding the Distribution Date on
which such increase occurs. Any such increases shall be applied pro
rata to the Certificate Balance of each Certificate of such Class.
(k) Notwithstanding
anything to the contrary in this Agreement, for so long as any Hedged
Certificates are held by the Seller or its Affiliates, the Supplemental Interest
Trustee and Swap Trustee, as applicable, shall not knowingly distribute any
amounts received under the Corridor Contract or Swap Contract, as applicable,
in
respect of any Hedged Certificates held by the Seller or any of its Affiliates,
and any such amounts shall instead be distributed in accordance with Section
3.19 excluding those Certificates that are held by the Seller or its
Affiliates. At least six (6) Business Days prior to the related
Distribution Date, the Seller shall make available to the Supplemental Interest
Trustee and Swap Trustee, as applicable, a statement containing the names of
the
Seller and/or any of its Affiliates that own any Certificates during the
immediately preceding Interest Accrual Period and/or as of the date of the
such
statement to the Supplemental Interest Trustee and Swap Trustee, as
applicable. The Seller and its Affiliates hereby agree that neither
the Seller nor any of its Affiliates shall undertake to sell any Certificates
held by such entities or purchase any additional Certificates from the date
of
such statement to the Supplemental Interest Trustee and Swap Trustee, as
applicable, until the first day following the related Distribution
Date. Any amounts received by the Seller or any of its Affiliates
under the Corridor Contract or Swap Contract, as applicable, in respect of
any
Certificates owned by the Seller or any of its Affiliates, or in error or
otherwise, shall be immediately returned by the Seller to the Supplemental
Interest Trustee and Swap Trustee, as applicable, and then distributed by the
Supplemental Interest Trustee and Swap Trustee, as applicable, to other entitled
Certificateholders of such Class in accordance with Section 3.19 and if no
such
other Certificateholders, to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated.”
82
Section
4.03. [Reserved].
Section
4.04. Allocation
of Net Deferred Interest
Any
Net Deferred Interest on a
Distribution Date will be allocated on a Loan Group basis to each related Class
of LIBOR Certificates, pro rata, based on their respective Class Certificate
Balances (or in the case of the Subordinated Certificates based on the related
Allocable Portion of their respective Class Certificate Balances) in reduction
of Current Interest otherwise distributable to that Class; provided, however,
the amount of Net Deferred Interest allocated to any Class of Certificates
on a
Distribution Date will not exceed the amount of Current Interest for that Class
for that Distribution Date. To the extent that any Net Deferred
Interest allocated to a Class of Certificates would exceed the amount of Current
Interest for that Class for that Distribution Date, the amount of that excess
will be allocated to the Class C Certificates to the extent distributions would
otherwise be made to the Class C Certificates. Thereafter, that
excess amount will be allocated among the Classes of Certificates, in proportion
to, and up to, the amount of any remaining interest otherwise distributable
on
the Certificates.
Any
Net Deferred Interest allocated to
a Class of Certificates will be added to the Class Certificate Balance of the
applicable Class of Certificates.
Section
4.05. Monthly
Statements to Certificateholders.
(a) Not
later than each Distribution Date, the Trustee shall prepare and make available
on its website at xxxxx://xxx.xxx.xx.xxx/xxxx to each Certificateholder, the
Servicer and the Depositor a statement for the related distribution
of:
(i) the
applicable Record Dates, Interest Accrual Periods and Determination Dates for
calculating distributions for such Distribution Date;
(ii) the
amount of funds received from the Servicer for such Distribution Date separately
identifying amounts received in respect of the Mortgage Loans and the amount
of
Advances included in the distribution on the Distribution Date;
(iii) the
Servicing Fee and Trustee Fee for such Distribution Date;
(iv) the
aggregate amount of expenses paid from amounts on deposit in (x) the Certificate
Account and (y) the Distribution Account;
(v) the
amount of the distribution allocable to principal, separately identifying the
aggregate amount of any Principal Prepayments and Liquidation Proceeds included
therein;
(vi) the
amount of the distribution allocable to interest, any Class Unpaid Interest
Amounts included in the distribution and any remaining Class Unpaid Interest
Amounts after giving effect to the distribution;
(vii) 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;
(viii) the
aggregate amount of Realized Losses and in the aggregate incurred and Subsequent
Recoveries, if any, received during the preceding calendar month and aggregate
Realized Losses through such Distribution Date;
83
(ix) the
Class Certificate Balance of each Class of Certificates before and after giving
effect to the distribution of principal on the Distribution Date;
(x) the
Pass-Through Rate for each Class of Certificates with respect to the
Distribution Date;
(xi) the
number of Mortgage Loans and the Pool Stated Principal Balance as the first
day
of the related Due Period and the last day of the related Due
Period;
(xii) as
of the last day of the related Due Period:
(A) the
weighted average mortgage rate of the Mortgage Loans, and
(B) the
weighted average remaining term to maturity of the Mortgage Loans;
(xiii) the
number and aggregate outstanding balance of the Mortgage Loans as of the end
of
the preceding calendar month:
(A) delinquent
(exclusive of Mortgage Loans in foreclosure) (1) 30 to 59 days, (2) 60 to 89
days and (3) 90 or more days and
(B) in
foreclosure and delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90
or
more days,
as
of the
close of business on the last day of the calendar month preceding the
Distribution Date;
(xiv) for
each of the preceding 12 calendar months, or all calendar months since the
Cut-off Date, whichever is less, the aggregate dollar amount of the Scheduled
Payments (A) due on all Outstanding Mortgage Loans on the Due Date in such
month
and (B) delinquent sixty (60) days or more (determined in the same manner as
for
determining Scheduled Payment delinquencies that result in a Mortgage Loan
being
a 60+ Day Delinquent Loan) on the Due Date in such month;
(xv) 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;
(xvi) the
total number and principal balance of any REO Properties as of the close of
business on the Determination Date preceding the Distribution Date;
(xvii) the
aggregate amount of Principal Prepayments received during the related Prepayment
Period and the number of Mortgage Loans subject to such Principal
Prepayments;
(xviii) the
aggregate amount of Advances reimbursed during the related Due Period, the
general source of funds for such reimbursements and the aggregate amount of
Advances outstanding as of the close of business on the Determination
Date;
(xix) the
aggregate amount of Servicing Advances reimbursed during the related Due Period,
the general source of funds for such reimbursements and the aggregate amount
of
Servicing Advances outstanding as of the close of business on the Determination
Date;
84
(xx) the
aggregate number and outstanding principal balance of Mortgage Loans repurchased
during the related Due Period due to material breaches of representations and
warranties regarding such Mortgage Loans;
(xxi) Deferred
Interest, Net Deferred Interest and Net Rate Carryover for each Class of
Certificates;
(xxii) Amounts
due and received under the Swap Contract for the Distribution Date;
(xxiii) with
respect to the second Distribution Date, the number and aggregate balance of
any
Delayed Delivery Mortgage Loans not delivered within the time periods specified
in the definition of Delayed Delivery Mortgage Loans; and
(xxiv) Prepayment
Charges and Late Payment Fees collected, waived, and paid by the
Servicer.
The
Trustee’s responsibility for disbursing the above information to the
Certificateholders is limited to the availability, timeliness and accuracy
of
the information derived from the Servicer.
By
the
Reporting Date the Servicer shall provide to the Trustee in electronic form
the
information needed to determine the distributions to be made pursuant to Section
4.02 and any other information on which the Servicer and the Trustee mutually
agree.
(b) On
or before the fifth Business Day following the end of each Prepayment Period
(but in no event later than the third Business Day prior to the related
Distribution Date), the Servicer shall deliver to the Trustee (which delivery
may be by electronic data transmission) a report in substantially the form
set
forth as Schedule IV.
(c) Within
a reasonable period of time after the end of each calendar year, the Trustee
shall cause to be furnished to each Person who at any time during the calendar
year was a Certificateholder, a statement containing the information set forth
in clauses (a)(v) and (a)(vi) of this Section 4.05 aggregated for such calendar
year or applicable portion thereof during which such Person was a
Certificateholder. Such obligation of the Trustee shall be deemed to
have been satisfied to the extent that substantially comparable information
shall be provided by the Trustee pursuant to any requirements of the Code as
from time to time in effect.
Section
4.06. Carryover
Reserve Fund.
(a) On
the Closing Date, the Trustee shall establish and maintain in its name, in
trust
for the benefit of the Holders of the LIBOR Certificates, a Carryover Reserve
Fund, into which $1,000 shall be deposited upon receipt of such
funds. The Carryover Reserve Fund shall be an Eligible Account, and
funds on deposit therein shall be held separate and apart from, and shall not
be
commingled with, any other moneys, including, without limitation, other moneys
of the Trustee held pursuant to this Agreement. The Carryover Reserve Fund
shall
not be an asset of any REMIC established by this Agreement.
(b) The
Trustee shall withdraw funds from the Carryover Reserve Fund for distribution
to
the LIBOR Certificates and the Class C Certificates in the manner specified
in
Section 4.02(e) (and to withhold from the amounts so withdrawn the amount of
any
taxes that it is authorized to retain pursuant to the third paragraph of Section
8.11). In addition, the Trustee may from time to time make
withdrawals from the Carryover Reserve Fund for the following
purposes:
85
(i) to
withdraw any amount deposited in the Carryover Reserve Fund and not required
to
be deposited therein; and
(ii) clear
and terminate the Carryover Reserve Fund upon the termination of this Agreement
pursuant to Section 9.01.
(c) Funds
in the Carryover Reserve Fund shall not be invested.
(d) Upon
termination of the Trust Fund any amounts remaining in the Carryover Reserve
Fund shall be distributed to the Class C Certificates and will not be available
to cover any Net Rate Carryover on subsequent Distribution Dates.
Section
4.07. Determination
of Pass-Through Rates for LIBOR Certificates.
On
each
LIBOR Determination Date so long as the LIBOR Certificates are outstanding,
the
Trustee will determine LIBOR on the basis of the British Bankers’ Association
(“BBA”) “Interest Settlement Rate” for one-month
deposits in U.S. dollars as found on Reuters Page LIBOR01 as of 11:00 a.m.
London time on each LIBOR Determination Date.
(a) If
LIBOR cannot be determined as provided in the first paragraph of this
Section 4.07, the Trustee shall either (i) request each Reference Bank to
inform the Trustee of the quotation offered by its principal London office
for
making one-month United States dollar deposits in leading banks in the London
interbank market, as of 11:00 a.m. (London time) on such LIBOR Determination
Date or (ii) in lieu of making any such request, rely on such Reference Bank
quotations that appear at such time on the Reuters Page LIBOR01(as defined
in
the International Swap Dealers Association Inc. Code of Standard Wording,
Assumptions and Provisions for Swaps, 1986 Edition), to the extent
available.
(b) LIBOR
for the next Interest Accrual Period for a Class of LIBOR Certificates will
be
established by the Trustee on each LIBOR Determination Date as
follows:
(i) If
on any LIBOR Determination Date two or more Reference Banks provide such offered
quotations, LIBOR for the next Interest Accrual Period for a Class of
LIBOR Certificates shall be the arithmetic mean of such offered quotations
(rounding such arithmetic mean upwards if necessary to the nearest whole
multiple of 1/32%).
(ii) If
on any LIBOR Determination Date only one or none of the Reference Banks provides
such offered quotations, LIBOR for the next Interest Accrual Period for a Class
of LIBOR Certificates shall be whichever is the higher of (i) LIBOR as
determined on the previous LIBOR Determination Date or (ii) the Reserve Interest
Rate. The “Reserve Interest Rate” shall be the rate per annum which
the Trustee determines to be either (i) the arithmetic mean (rounded upwards
if
necessary to the nearest whole multiple of 1/32%) of the one-month United States
dollar lending rates that New York City banks selected by the Trustee are
quoting, on the relevant LIBOR Determination Date, to the principal London
offices of at least two of the Reference Banks to which such quotations are,
in
the opinion of the Trustee, being so made, or (ii) in the event that the Trustee
can determine no such arithmetic mean, the lowest one-month United States dollar
lending rate which New York City banks selected by the Trustee are
quoting on such LIBOR Determination Date to leading European
banks.
86
(iii) If
on any LIBOR Determination Date the Trustee is required but is unable to
determine the Reserve Interest Rate in the manner provided in paragraph (b)
above, LIBOR shall be LIBOR as determined on the preceding LIBOR Determination
Date, or, in the case of the first LIBOR Determination Date, the Initial LIBOR
Rate.
(c) Until
all of the LIBOR Certificates are paid in full, the Trustee will at all times
retain at least four Reference Banks for the purpose of determining LIBOR with
respect to each LIBOR Determination Date. The Servicer initially
shall designate the Reference Banks. Each “Reference Bank” shall be a
leading bank engaged in transactions in Eurodollar deposits in the international
Eurocurrency market, shall not control, be controlled by, or be under common
control with, the Trustee and shall have an established place of business in
London. If any such Reference Bank should be unwilling or unable to
act as such or if the Servicer should terminate its appointment as Reference
Bank, the Trustee shall promptly appoint or cause to be appointed another
Reference Bank. The Trustee shall have no liability or responsibility
to any Person for (i) the selection of any Reference Bank for purposes of
determining LIBOR or (ii) any inability to retain at least four Reference Banks
which is caused by circumstances beyond its reasonable control.
(d) The
Pass-Through Rate for each Class of LIBOR Certificates for each related Interest
Accrual Period shall be determined by the Trustee on each LIBOR Determination
Date so long as the LIBOR Certificates are outstanding on the basis of LIBOR
and
the respective formulae appearing in footnotes corresponding to the LIBOR
Certificates in the table relating to the Certificates in the Preliminary
Statement.
(e) In
determining LIBOR, any Pass-Through Rate for the LIBOR Certificates, any
Interest Settlement Rate, or any Reserve Interest Rate, the Trustee may
conclusively rely and shall be protected in relying upon the offered quotations
(whether written, oral or on the Dow Xxxxx Markets) from the BBA designated
banks, the Reference Banks or the New York City banks as to LIBOR, the Interest
Settlement Rate or the Reserve Interest Rate, as appropriate, in effect from
time to time. The Trustee shall not have any liability or
responsibility to any Person for (i) the Trustee’s selection of New York City
banks for purposes of determining any Reserve Interest Rate or (ii) its
inability, following a good-faith reasonable effort, to obtain such quotations
from, the BBA designated banks, the Reference Banks or the New York City banks
or to determine such arithmetic mean, all as provided for in this
Section 4.07.
(f) The
establishment of LIBOR and each Pass-Through Rate for the LIBOR Certificates
by
the Trustee shall (in the absence of manifest error) be final, conclusive and
binding upon each Holder of a Certificate and the Trustee.
(g) The
Pass-Through Rate for the Interest Accrual Period for the first Distribution
Date for each Class of LIBOR Certificates is set forth in the applicable
footnote under the heading “Master REMIC” in the Preliminary
Statement.
Section
4.08. Supplemental
Interest Trust and Swap Trust.
(a) On
the Closing Date, there is hereby established a separate trust (the
“Supplemental Interest Trust”), the assets of which
shall consist of the Supplemental Interest Trustee’s rights and obligations
under the Corridor Contract and that will be treated as a “grantor trust” for
federal income tax purposes. The Supplemental Interest Trust shall be
maintained by the Supplemental Interest Trustee
87
(b) On
the Closing Date, there is hereby established a separate trust (the
“Swap Trust”), the assets of which shall consist of
the Swap Trustee’s rights and obligations under the Swap Contract and that will
be treated as a “grantor trust” for federal income tax purposes. The
Swap Trust shall be maintained by the Swap Trustee.
88
Article
Five
THE
CERTIFICATES
Section
5.01. The
Certificates.
The
Certificates shall be substantially in the forms attached hereto as
exhibits. The Certificates shall be issuable in registered form, in
the minimum denominations, integral multiples of $1,000 in excess thereof
(except that one Certificate in each Class may be issued in a different amount
which must exceed the applicable minimum denomination) and aggregate
denominations per Class set forth in the Preliminary Statement.
Subject
to Section 9.02 respecting the final distribution on the Certificates, on
each Distribution Date the Trustee shall make distributions to each
Certificateholder of record on the preceding Record Date either (x) by wire
transfer in immediately available funds to the account of such holder at a
bank
or other entity having appropriate facilities therefor, if such Holder has
so
notified the Trustee at least five Business Days before the related Record
Date
or (y) by check mailed by first class mail to such Certificateholder at the
address of such holder appearing in the Certificate Register.
The
Trustee shall execute the Certificates by the manual or facsimile signature
of
an authorized officer. Certificates bearing the manual or facsimile
signatures of individuals who were, at the time such signatures were affixed,
authorized to sign on behalf of the Trustee shall bind the Trustee,
notwithstanding that such individuals or any of them have ceased to be so
authorized before the countersignature and delivery of any such Certificates
or
did not hold such offices at the date of such Certificate. No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, unless countersigned by the Trustee by manual signature, and
such countersignature upon any Certificate shall be conclusive evidence, and
the
only evidence, that such Certificate has been duly executed and delivered
hereunder. All Certificates shall be dated the date of their
countersignature. On the Closing Date, the Trustee shall countersign
the Certificates to be issued at the direction of the Depositor, or any
affiliate thereof.
The
Depositor shall provide the Trustee, on a continuous basis with an adequate
inventory of Certificates to facilitate transfers.
Section
5.02. Certificate
Register; Registration of Transfer and Exchange of
Certificates.
(a) The
Trustee shall maintain, in accordance with Section 5.06, a Certificate
Register for the Trust Fund in which, subject to subsections (b) and (c) below
and to such reasonable regulations as it may prescribe, the Trustee shall
provide for the registration of Certificates and of transfers and exchanges
of
Certificates as herein provided. Upon surrender for registration of
transfer of any Certificate, the Trustee shall execute and deliver, in the
name
of the designated transferee or transferees, one or more new Certificates of
the
same Class and aggregate Percentage Interest.
At
the
option of a Certificateholder, Certificates may be exchanged for other
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest upon surrender of the Certificates to be
exchanged at the office or agency of the Trustee. Whenever any
Certificates are so surrendered for exchange, the Trustee shall execute,
authenticate, and deliver the Certificates that the Certificateholder making
the
exchange is entitled to receive. A written instrument of transfer in
form satisfactory to the Trustee duly executed by the holder of a Certificate
or
his attorney duly authorized in writing shall accompany every Certificate
presented or surrendered for registration of transfer or exchange.
89
No
service charge to the Certificateholders shall be made for any registration
of
transfer or exchange of Certificates, but payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with any
transfer or exchange of Certificates may be required.
All
Certificates surrendered for registration of transfer or exchange shall be
cancelled and subsequently destroyed by the Trustee in accordance with the
Trustee’s customary procedures.
(b) No
transfer of a Private Certificate shall be made unless such transfer is made
pursuant to an effective registration statement under the Securities Act and
any
applicable state securities laws or is exempt from the registration requirements
under the Securities Act and such state securities laws. If a
transfer is to be made in reliance on an exemption from the Securities Act
and
such state securities laws, to assure compliance with the Securities Act and
such state securities laws, the Certificateholder desiring to effect such
transfer and such Certificateholder’s prospective transferee shall each certify
to the Trustee in writing the facts surrounding the transfer in substantially
the form set forth in Exhibit J (the “Transferor
Certificate”) and deliver to the Trustee either (i) a letter in
substantially the form of either Exhibit K (the “Investment
Letter”) or Exhibit L (the “Rule 144A
Letter”) or (ii) at the expense of the transferor, an Opinion of
Counsel that such transfer may be made pursuant to an exemption from the
Securities Act; provided, however, that in the case of the delivery of an
Investment Letter in connection with the transfer of any Class C or Class P
Certificate to a transferee that is formed with the purpose of issuing notes
backed by such Class C or Class P Certificate, as the case may be, clause (b)
and (c) of the form of Investment Letter shall not be applicable and shall
be
deleted by such transferee. The Depositor shall provide to any Holder
of a Private Certificate and any prospective transferee designated by that
Holder, information regarding the related Certificates and the Mortgage Loans
and any other information necessary to satisfy the condition to eligibility
in
Rule 144A(d)(4) for transfer of the Certificate without registration thereof
under the Securities Act pursuant to the registration exemption provided by
Rule
144A. The Trustee and the Servicer shall cooperate with the Depositor
in providing the Rule 144A information referenced in the preceding sentence,
including providing to the Depositor such information regarding the
Certificates, the Mortgage Loans, and other matters regarding the Trust Fund
as
the Depositor reasonably requests to meet its obligation under the preceding
sentence. Each Holder of a Private Certificate desiring to effect a
transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor,
the Seller and the Servicer against any liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and
state laws.
No
transfer of an ERISA-Restricted Certificate shall be made unless the Trustee
shall have received either (i) a representation from the transferee of such
Certificate acceptable to and in form and substance satisfactory to the Trustee
(if the Certificate is a Private Certificate, the requirement is satisfied
only
by the Trustee’s receipt of a representation letter from the transferee
substantially in the form of Exhibit K or Exhibit L, and if the Certificate
is a
Residual Certificate, the requirement is satisfied only by the Trustee’s receipt
of a representation letter from the transferee substantially in the form of
Exhibit I), to the effect that (x) the transferee is not an employee benefit
plan or arrangement subject to section 406 of ERISA or a plan subject to section
4975 of the Code, or a person acting on behalf of any such plan or arrangement
or using the assets of any such plan or arrangement to effect the transfer,
or
(y) if the ERISA-Restricted Certificate has been the subject of an
ERISA-Qualifying Underwriting, a representation that the transferee is an
insurance company that is purchasing such Certificate with funds contained
in an
“insurance company general account” (as such term is defined in
Section V(e) of Prohibited Transaction Class Exemption 95-60
(“PTCE 95-60”) and that the purchase and holding of
such Certificate satisfy the requirements for exemptive relief under Sections
I
and III of PTCE 95-60, or (ii) in the case of any ERISA-Restricted Certificate
presented for registration in the name of an employee benefit plan subject
to
ERISA, or a plan or arrangement subject to section 4975 of the Code (or
comparable provisions of any subsequent enactments), or a trustee of any such
plan or any other person acting on behalf of any such plan or arrangement or
using such plan’s or arrangement’s assets, an Opinion of Counsel satisfactory to
the Trustee, which Opinion of Counsel shall not be an expense of the Trustee,
the Servicer or the Trust Fund, addressed to the Trustee and the Servicer,
to
the effect that the purchase and holding of such ERISA-Restricted Certificate
will not result in a non-exempt prohibited transaction under ERISA or section
4975 of the Code and will not subject the Trustee or the Servicer to any
obligation in addition to those expressly undertaken in this Agreement or to
any
liability. For purposes of the preceding sentence, with respect to an
ERISA-Restricted Certificate that is not a Residual Certificate, if the
representation letter or Opinion of Counsel referred to in the preceding
sentence is not furnished, the appropriate representation in clause (i) shall
be
deemed to have been made to the Trustee by the transferee’s (including an
initial acquirer’s) acceptance of the ERISA-Restricted
Certificates. If the representation is violated, or any attempt is
made to transfer to a plan or arrangement subject to section 406 of ERISA or
a
plan subject to section 4975 of the Code, or a person acting on behalf of any
such plan or arrangement or using the assets of any such plan or arrangement,
without the Opinion of Counsel described above, the attempted transfer or
acquisition shall be void.
90
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.
So
long
as the Swap Contract or the Corridor Contract is in effect, no transfer of
a
LIBOR Certificate (other than a transfer of a LIBOR Certificate to an affiliate
of the Depositor (either directly or through a nominee) in connection with
the
initial issuance of the Certificates) shall be made unless the Trustee shall
have received either (i) a representation from the transferee of such LIBOR
Certificate acceptable to and in form and substance satisfactory to the Trustee
to the effect that such transferee is not a Plan, or (ii) a representation
that
the purchase and holding of the LIBOR Certificate satisfy the requirements
for
exemptive relief under XXXX 00-00, XXXX 00-0, XXXX 00-00, XXXX 00-00, XXXX
96-23
or the service provider exemption provided by Section 408 (b)(17) of ERISA
and
Section 4975 (d)(20) of the Code or a similar exemption. In the event
that such a representation letter is not delivered, one of the foregoing
representations, as appropriate, shall be deemed to have been made by the
transferee’s (including an initial acquiror’s) acceptance of the LIBOR
Certificate. In the event that such representation is violated, such
transfer or acquisition shall be void and of no effect.
No
transfer of LIBOR Certificate shall be made unless the transferee of such
Certificate has provided to the Trustee a correct, complete and duly executed
tax certification form (i.e., U.S. Internal Revenue Service Form X-0, X-0XXX,
X-0XXX, X-0XXX or W-8ECI, as applicable (or any successor form thereto),
together with appropriate attachments) as a condition to such transfer and
agrees to update such tax certification form (i) upon expiration of any such
tax
certification form, (ii) as required under then applicable U.S. Treasury
regulations and (iii) promptly upon learning that any tax certification form
previously provided has become obsolete or incorrect. Upon receipt of
any such tax certification form from a transferee of any LIBOR Certificate,
the
Trustee shall provide such tax certification form to the Swap Trustee and
Supplemental Interest Trustee. The Swap Trustee or the Supplemental
Interest Trustee, as applicable, shall provide such tax certification form
to
the Swap Counterparty or the Corridor Counterparty, as
applicable. Each Holder of a LIBOR Certificate and each transferee
thereof shall be deemed to have consented to the Trustee, the Swap Trustee
and
Supplemental Interest Trustee, as applicable, forwarding to the Swap
Counterparty or the Corridor Counterparty, as applicable, any such tax
certification form it has provided and updated in accordance with these transfer
restrictions. Any purported sales or transfers of any LIBOR
Certificate to a transferee that does not comply with these requirements shall
be deemed null and void under this Agreement.
91
The
Swap
Trustee, the Supplemental Interest Trustee and the Trustee shall not be liable
for the content or truthfulness of any such tax certification provided to
it. The Swap Trustee, the Supplemental Interest Trustee and the
Trustee shall only be required to forward any tax certification received by
it
to the Swap Counterparty or the Corridor Counterparty, as applicable, at the
last known address provided to it, and shall not be liable for the receipt
of
such tax certification by the Swap Counterparty or the Corridor Counterparty,
as
applicable, nor any failure of the Swap Counterparty or the Corridor
Counterparty, as applicable, to process such certification or to take any action
as required under the respective Swap Contract or the Corridor Contract or
under
applicable law. The Swap Trustee, the Supplemental Interest Trustee
and the Trustee shall have no duty to take action to correct any misstatement
or
omission in any tax certification provided to it and forwarded to the Swap
Counterparty or the Corridor Counterparty, as applicable.
(c) Each
Person who has or who acquires any Ownership Interest in a Residual Certificate
shall be deemed by the acceptance or acquisition of such Ownership Interest
to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in a Residual Certificate are expressly
subject to the following provisions:
(i) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall be a Permitted Transferee and shall promptly notify the Trustee of any
change or impending change in its status as a Permitted Transferee.
(ii) No
Ownership Interest in a Residual Certificate may be registered on the Closing
Date or thereafter transferred, and the Trustee shall not register the Transfer
of any Residual Certificate unless, in addition to the certificates required
to
be delivered to the Trustee under subparagraph (b) above, the Trustee shall
have
been furnished with an affidavit (a “Transfer
Affidavit”) of the initial owner or the proposed transferee in the
form of Exhibit I.
(iii) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall agree (A) to obtain a Transfer Affidavit from any other Person to whom
such Person attempts to Transfer its Ownership Interest in a Residual
Certificate, (B) to obtain a Transfer Affidavit from any Person for whom such
Person is acting as nominee, trustee or agent in connection with any Transfer
of
a Residual Certificate and (C) not to Transfer its Ownership Interest in a
Residual Certificate or to cause the Transfer of an Ownership Interest in a
Residual Certificate to any other Person if it has actual knowledge that such
Person is not a Permitted Transferee.
(iv) Any
attempted or purported Transfer of any Ownership Interest in a Residual
Certificate in violation of this Section 5.02(c) shall be absolutely null
and void and shall vest no rights in the purported Transferee. If any
purported transferee shall become a Holder of a Residual Certificate in
violation of this Section 5.02(c), then the last preceding Permitted
Transferee shall be restored to all rights as Holder thereof retroactive to
the
date of registration of Transfer of such Residual Certificate. The
Trustee shall be under no liability to any Person for any registration of
Transfer of a Residual Certificate that is in fact not permitted by
Section 5.02(b) and this Section 5.02(c) or for making any payments
due on such Certificate to the Holder thereof or taking any other action with
respect to such Holder under this Agreement so long as the Transfer was
registered after receipt of the related Transfer Affidavit, Transferor
Certificate and 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.
92
(v) The
Depositor shall use its best efforts to make available, upon receipt of written
request from the Trustee, all information necessary to compute any tax imposed
under section 860E(e) of the Code as a result of a Transfer of an Ownership
Interest in a Residual Certificate to any Holder who is not a Permitted
Transferee.
The
restrictions on Transfers of a Residual Certificate set forth in this
Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Trustee of an Opinion of Counsel, which Opinion
of Counsel shall not be an expense of the Trust Fund, the Trustee, the Seller
or
the Servicer, to the effect that the elimination of such restrictions will
not
cause any REMIC created under this Agreement to fail to qualify as a REMIC
at
any time that the Certificates are outstanding or result in the imposition
of
any tax on the Trust Fund, a Certificateholder or another
Person. Each Person holding or acquiring any Ownership Interest in a
Residual Certificate hereby consents to any amendment of this Agreement which,
based on an Opinion of Counsel furnished to the Trustee, is reasonably necessary
(a) to ensure that the record ownership of, or any beneficial interest in,
a
Residual Certificate is not transferred, directly or indirectly, to a Person
that is not a Permitted Transferee and (b) to provide for a means to compel
the
Transfer of a Residual Certificate which is held by a Person that is not a
Permitted Transferee to a Holder that is a Permitted Transferee.
(d) The
preparation and delivery of all certificates and opinions referred to above
in
this Section 5.02 in connection with transfer shall be at the expense of
the parties to such transfers.
(e) Except
as provided below, the Book-Entry Certificates shall at all times remain
registered in the name of the Depository or its nominee and at all
times: (i) registration of the Certificates may not be transferred by
the Trustee except to another Depository; (ii) the Depository shall maintain
book-entry records with respect to the Certificate Owners and with respect
to
ownership and transfers of such Book-Entry Certificates; (iii) ownership and
transfers of registration of the Book-Entry Certificates on the books of the
Depository shall be governed by applicable rules established by the Depository;
(iv) the Depository may collect its usual and customary fees, charges and
expenses from its Depository Participants; (v) the Trustee shall deal with
the
Depository, Depository Participants and Indirect Participants as representatives
of the Certificate Owners of the Book-Entry Certificates for purposes of
exercising the rights of holders under this Agreement, and requests and
directions for and votes of such representatives shall not be deemed to be
inconsistent if they are made with respect to different Certificate Owners;
and
(vi) the Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants and furnished by the Depository Participants with respect to
Indirect Participants and persons shown on the books of such Indirect
Participants as direct or indirect Certificate Owners.
All
transfers by Certificate Owners of Book-Entry Certificates shall be made in
accordance with the procedures established by the Depository Participant or
brokerage firm representing the Certificate Owner. Each Depository
Participant shall only transfer Book-Entry Certificates of Certificate Owners
it
represents or of brokerage firms for which it acts as agent in accordance with
the Depository’s normal procedures.
If
(x)
(i) the Depository or the Depositor advises the Trustee in writing
that the Depository is no longer willing or able to properly discharge its
responsibilities as Depository, and (ii) the Trustee or the Depositor is unable
to locate a qualified successor or (y) after the occurrence of an Event of
Default, Certificate Owners representing at least 51% of the Certificate Balance
of the Book-Entry Certificates together advise the Trustee and the Depository
through the Depository Participants in writing that the continuation of a
book-entry system through the Depository is no longer in the best interests
of
the Certificate Owners, the Trustee shall notify all Certificate Owners, through
the Depository, of the occurrence of any such event and of the availability
of
definitive, fully-registered Certificates (the “Definitive
Certificates”) to Certificate Owners requesting the
same. Upon surrender to the Trustee of the related Class of
Certificates by the Depository, accompanied by the instructions from the
Depository for registration, the Trustee shall issue the Definitive
Certificates. None of the Servicer, the Depositor or the
Trustee shall be liable for any delay in delivery of such instruction and each
may conclusively rely on, and shall be protected in relying on, such
instructions. The Servicer shall provide the Trustee with an adequate
inventory of certificates to facilitate the issuance and transfer of Definitive
Certificates. Upon the issuance of Definitive Certificates all
references herein to obligations imposed upon or to be performed by the
Depository shall be deemed to be imposed upon and performed by the Trustee,
to
the extent applicable with respect to such Definitive Certificates and the
Trustee shall recognize the Holders of the Definitive Certificates as
Certificateholders hereunder; provided that the Trustee shall not by virtue
of
its assumption of such obligations become liable to any party for any act or
failure to act of the Depository.
93
Section
5.03. Mutilated,
Destroyed, Lost or Stolen Certificates.
If
(a)
any mutilated Certificate is surrendered to the Trustee, or (b) the Trustee
receives evidence to its satisfaction of the destruction, loss, or theft of
any
Certificate and the Servicer and the Trustee receive the security or indemnity
required by them to hold each of them harmless, then, in the absence of notice
to the Trustee that the Certificate has been acquired by a Protected Purchaser,
and if the requirements of Section 8-406 of the UCC are met and subject to
Section 8-405 of the UCC, the Trustee shall execute, countersign, and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost,
or
stolen Certificate, a new Certificate of like Class, tenor, and Percentage
Interest. In connection with the issuance of any new Certificate
under this Section 5.03, the Trustee may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
relation thereto and any other expenses (including the fees and expenses of
the
Trustee) connected therewith. Any replacement Certificate issued
pursuant to this Section 5.03 shall constitute complete and indefeasible
evidence of ownership, as if originally issued, whether or not the lost, stolen,
or destroyed Certificate is found at any time.
Section
5.04. Persons
Deemed Owners.
The
Servicer, the Trustee and any agent of the Servicer or the Trustee may treat
the
Person in whose name any Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions as provided in this
Agreement and for all other purposes whatsoever, and none of the Servicer or
the
Trustee, nor any agent of the Servicer or the Trustee shall be affected by
any
notice to the contrary.
Section
5.05. Access
to List of Certificateholders’ Names and Addresses.
If
three
or more Certificateholders and/or Certificate Owners (a) request such
information in writing from the Trustee, (b) state that such Certificateholders
and/or Certificate Owners desire to communicate with other Certificateholders
and/or Certificate Owners with respect to their rights under this Agreement
or
under the Certificates, and (c) provide a copy of the communication which such
Certificateholders and/or Certificate Owners propose to transmit, or if the
Depositor or Servicer shall request such information in writing from the
Trustee, then the Trustee shall, within ten Business Days after the receipt
of
such request, provide the Depositor, the Servicer or such Certificateholders
and/or Certificate Owners at such recipients’ expense the most recent list of
the Certificateholders of such Trust Fund held by the Trustee. The
Depositor and every Certificateholder and/or Certificate Owner, by receiving
and
holding a Certificate, agree that the Trustee shall not be held accountable
because of the disclosure of any such information as to the list of the
Certificateholders hereunder, regardless of the source from which such
information was derived.
94
Section
5.06. Maintenance
of Office or Agency.
The
Certificate Registrar will maintain at its expense an office or offices or
agency or agencies in the United States located at DB Services Tennessee, 000
Xxxxxxxxx Xxxx Xx., Xxxxxxxxx, XX 00000-0000, Attention: Transfer
Unit, where Certificates may be surrendered for registration of transfer or
exchange. The Certificate Registrar will give prompt written notice
to the Certificateholders and the Trustee of any change in such location of
any
such office or agency.
95
Article
Six
THE
DEPOSITOR AND
THE SERVICER
Section
6.01. Respective
Liabilities of the Depositor and the Servicer.
The
Depositor and the Servicer shall each be liable in accordance with this
Agreement only to the extent of the obligations specifically and respectively
imposed upon and undertaken by them in this Agreement.
Section
6.02. Merger
or Consolidation of the Depositor or the Servicer.
The
Depositor and the Servicer will each keep in full effect their existence and
their rights and franchises as a corporation and a federal savings bank,
respectively, under the laws of the United States or under the laws of one
of
the states thereof and will each obtain and preserve its qualification to do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its respective duties under this Agreement.
Any
Person into which the Depositor or the Servicer may be merged or consolidated,
or any Person resulting from any merger or consolidation to which the Depositor
or the Servicer shall be a party, or any person succeeding to the business
of
the Depositor or the Servicer, shall be the successor of the Depositor or the
Servicer, as the case may be, hereunder, without the execution or filing of
any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding; provided, however, that the successor
or
surviving Person to the Servicer shall be qualified to sell mortgage loans
to,
and to service mortgage loans on behalf of, FNMA or FHLMC.
As
a
condition to the effectiveness of any merger or consolidation, at least 15
calendar days prior to the effective date of any merger or consolidation of
the
Servicer, the Servicer shall provide (x) written notice to the Depositor of
any
successor pursuant to this Section and (y) in writing and in form and
substance reasonably satisfactory to the Depositor, all information reasonably
requested by the Depositor in order to comply with its reporting obligation
under Item 6.02 of Form 8-K with respect to a replacement Servicer.
Section
6.03. Limitation
on Liability of the Depositor, the Seller, the Servicer, and
Others.
None
of
the Depositor, the Seller, the Servicer or any of the directors, officers,
employees or agents of the Depositor, the Seller or the Servicer shall be under
any liability to the Certificateholders for any action taken or for refraining
from the taking of any action in good faith pursuant to this Agreement, or
for
errors in judgment; provided, however, that this provision shall not protect
the
Depositor, the Seller, the Servicer or any such Person against any breach of
representations or warranties made by it herein or protect the Depositor, the
Seller, the Servicer or any such Person from any liability which would otherwise
be imposed by reasons of willful misfeasance, bad faith or gross negligence
in
the performance of duties or because of reckless disregard of obligations and
duties hereunder. The Depositor, the Seller, the Servicer, and any
director, officer, employee or agent of the Depositor, the Seller or the
Servicer may rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising
hereunder. The Depositor, the Seller, the Servicer, and any director,
officer, employee or agent of the Depositor, the Seller or the Servicer shall
be
indemnified by the Trust Fund and held harmless against any loss, liability
or
expense incurred in connection with any audit, controversy or judicial
proceeding relating to a governmental taxing authority or any legal action
relating to this Agreement or the Certificates, other than any loss, liability
or expense related to any specific Mortgage Loan or Mortgage Loans (except
as
any such loss, liability or expense shall be otherwise reimbursable pursuant
to
this Agreement) and any loss, liability or expense incurred because of willful
misfeasance, bad faith or gross negligence in the performance of duties
hereunder or because of reckless disregard of obligations and duties
hereunder. None of the Depositor, the Seller or the Servicer shall be
under any obligation to appear in, prosecute or defend any action that is not
incidental to its respective duties hereunder and which in its opinion may
involve it in any expense or liability; provided, however, that any of the
Depositor, the Seller or the Servicer may in its discretion undertake any such
legal action that it may deem appropriate in respect of this Agreement and
the
rights and duties of the parties hereto and interests of the Trustee and the
Certificateholders hereunder. In such event, the legal expenses and
costs of such action and any liability resulting therefrom shall be expenses,
costs and liabilities of the Trust Fund, and the Depositor, the Seller, and
the
Servicer shall be entitled to be reimbursed therefor out of the Certificate
Account.
96
Section
6.04. Limitation
on Resignation of the Servicer.
The
Servicer shall not resign from the obligations and duties hereby imposed on
it
except (a) upon appointment of a successor servicer and receipt by the Trustee
of a letter from each Rating Agency that such a resignation and appointment
will
not result in a downgrading, qualification or withdrawal of the rating of any
of
the Certificates or (b) upon determination that its duties under this Agreement
are no longer permissible under applicable law. Any such
determination under clause (b) permitting the resignation of the Servicer shall
be evidenced by an Opinion of Counsel to such effect delivered to the
Trustee. No such resignation shall become effective until the Trustee
or a successor servicer shall have assumed the Servicer’s responsibilities,
duties, liabilities and obligations under this Agreement and the Depositor
shall
have received the information described in the following sentence. As
a condition to the effectiveness of any such resignation, at least 15 calendar
days prior to the effective date of such resignation, the Servicer shall provide
(x) written notice to the Depositor of any successor pursuant to this
Section and (y) in writing and in form and substance reasonably
satisfactory to the Depositor, all information reasonably requested by the
Depositor in order to comply with its reporting obligation under Item 6.02
of
Form 8-K with respect to the resignation of the Servicer.
97
Article
Seven
DEFAULT
Section
7.01. Events
of Default.
“Event
of Default,” wherever used in this Agreement, means any one of the
following events:
(a) any
failure by the Servicer to deposit in the Certificate Account or remit to the
Trustee any payment required to be made by it under this Agreement, which
failure continues unremedied for five days after the date on which written
notice of the failure has been given to the Servicer by the Trustee or the
Depositor or to the Servicer and the Trustee by the Holders of Certificates
of
any Class evidencing not less than 25% of the aggregate Percentage Interests
of
the Class; or
(b) any
failure by the Servicer to observe or perform in any material respect any other
of the covenants or agreements on the part of the Servicer contained in this
Agreement (except with respect to a failure related to a Limited Exchange Act
Reporting Obligation), which failure materially affects the rights of
Certificateholders and continues unremedied for a period of 60 days after the
date on which written notice of such failure shall have been given to the
Servicer by the Trustee or the Depositor, or to the Servicer and the Trustee
by
the Holders of Certificates of any Class evidencing not less than 25% of the
Percentage Interests of the Class; provided that the sixty-day cure period
shall
not apply to the initial delivery of the Mortgage File for Delay Delivery
Mortgage Loans nor the failure to repurchase or substitute in lieu thereof;
or
(c) a
decree or order of a court or agency or supervisory authority having
jurisdiction in the premises for the appointment of a receiver, conservator
or
liquidator in any insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of
its
affairs, shall have been entered against the Servicer and such decree or order
shall have remained in force undischarged or unstayed for a period of 60
consecutive days; or
(d) the
Servicer shall consent to the appointment of a receiver, conservator or
liquidator in any insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to the Servicer or all or
substantially all of the property of the Servicer; or
(e) the
Servicer shall admit in writing its inability to pay its debts generally as
they
become due, file a petition to take advantage of, or commence a voluntary case
under, any applicable insolvency or reorganization statute, make an assignment
for the benefit of its creditors, or voluntarily suspend payment of its
obligations; or
(f) the
Servicer shall fail (i) to make an Advance on the Servicer Advance Date or
(ii)
to reimburse in full the Trustee within two days of the Servicer Advance Date
for any Advance made by the Trustee pursuant to
Section 4.01(b).
If
an
Event of Default described in clauses (a) through (f) of this Section 7.01
occurs, then, and in each and every such case, so long as such Event of Default
shall not have been remedied, the Trustee may, or at the direction of the
Holders of Certificates evidencing Percentage Interests aggregating not less
than 66 2/3%, the Trustee shall by notice in writing to the Servicer and the
Swap Counterparty (with a copy to each Rating Agency), terminate all of the
rights and obligations of the Servicer under this Agreement and in the Mortgage
Loans and the proceeds thereof, other than its rights as a Certificateholder
hereunder. In addition, if during the period that the Depositor is
required to file Exchange Act Reports with respect to the Trust Fund, the
Servicer shall fail to observe or perform any of the obligations that constitute
a Limited Exchange Act Reporting Obligation or the obligations set forth in
Section 3.17(a) or Section 11.07(a)(i) and (ii), and such failure
continues for the lesser of 10 calendar days or such period in which the
applicable Exchange Act Report can be filed timely (without taking into account
any extensions), so long as such failure shall not have been remedied, the
Trustee shall, but only at the direction of the Depositor, terminate all of
the
rights and obligations of the Servicer under this Agreement and in and to the
Mortgage Loans and the proceeds thereof, other than its rights as a
Certificateholder hereunder. The Depositor shall not be entitled to
terminate the rights and obligations of the Servicer if a failure of the
Servicer to identify a Subcontractor “participating in the servicing function”
within the meaning of Item 1122 of Regulation AB was attributable solely to
the
role or functions of such Subcontractor with respect to mortgage loans other
than the Mortgage Loans.
98
On
and
after the receipt by the Servicer of such written notice, all authority and
power of the Servicer hereunder, whether with respect to the Mortgage Loans
or
otherwise, shall pass to and be vested in the Trustee. The Trustee
shall make any Advance that the Servicer failed to make subject to
Section 3.05, whether or not the obligations of the Servicer have been
terminated pursuant to this Section. The Trustee is hereby authorized
and empowered to execute and deliver, on behalf of the Servicer, as
attorney-in-fact or otherwise, any documents and other instruments, and to
do or
accomplish all other acts or things necessary or appropriate to effect the
purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise. Unless expressly provided in such written notice, no such
termination shall affect any obligation of the Servicer to pay amounts owed
pursuant to Article VIII. The Servicer agrees to cooperate with the
Trustee in effecting the termination of the Servicer’s responsibilities and
rights hereunder, including the transfer to the Trustee of all cash amounts
which shall at the time be credited to the Certificate Account, or thereafter
be
received with respect to the Mortgage Loans. If the Servicer fails to
make any Advance required under Section 4.01 of this Agreement, thereby
triggering an Event of Default described in clause (f) of this
Section 7.01, the Trustee shall make such Advance on that Distribution
Date.
Notwithstanding
any termination of the activities of the Servicer under this Agreement, the
Servicer shall be entitled to receive, out of any late collection of a Scheduled
Payment on a Mortgage Loan which was due before the notice terminating such
Servicer’s rights and obligations as Servicer hereunder and received after such
notice, that portion thereof to which such Servicer would have been entitled
pursuant to Sections 3.09(a)(i) through (viii), and any other amounts payable
to
such Servicer hereunder the entitlement to which arose before the termination
of
its activities hereunder.
If
the
Servicer is terminated, the Trustee shall provide the Depositor in writing
and
in form and substance reasonably satisfactory to the Depositor, all information
reasonably requested by the Depositor in order to comply with its reporting
obligation under Item 6.02 of Form 8-K with respect to a successor servicer
in
the event the Trustee should succeed to the duties of the Servicer as set forth
herein.
Section
7.02. Trustee
to Act; Appointment of Successor.
On
and
after the time the Servicer receives a notice of termination pursuant to
Section 7.01, the Trustee shall, subject to and to the extent provided in
Section 3.05, be the successor to the Servicer in its capacity as Servicer
under this Agreement and the transactions set forth or provided for herein
and
shall be subject to all the responsibilities, duties and liabilities relating
thereto placed on the Servicer by the terms hereof and applicable law including
the obligation to make Advances pursuant to Section 4.01. As
compensation therefor, the Trustee shall be entitled to all funds relating
to
the Mortgage Loans that the Servicer would have been entitled to charge to
the
Certificate Account or Distribution Account if the Servicer had continued to
act
hereunder, including, if the Servicer was receiving the Servicing Fee, the
Servicing Fee. Notwithstanding the foregoing, if the Trustee has
become the successor to the Servicer in accordance with Section 7.01, the
Trustee may, if it shall be unwilling to so act, or shall, if it is prohibited
by applicable law from making Advances pursuant to Section 4.01 or if it is
otherwise unable to so act, appoint, or petition a court of competent
jurisdiction to appoint, any established mortgage loan servicing institution
the
appointment of which does not adversely affect the then current rating of the
Certificates by each Rating Agency, as the successor to the Servicer hereunder
in the assumption of all or any part of the responsibilities, duties or
liabilities of the Servicer hereunder. Any successor to the Servicer
shall be an institution which is a FNMA and FHLMC approved seller/servicer
in
good standing, which has a net worth of at least $15,000,000, which is willing
to service the Mortgage Loans and which executes and delivers to the Depositor
and the Trustee an agreement accepting such delegation and assignment,
containing an assumption by such Person of the rights, powers, duties,
responsibilities, obligations and liabilities of the Servicer (other than
liabilities of the Servicer under Section 6.03 incurred before termination
of the Servicer under Section 7.01), with like effect as if originally
named as a party to this Agreement; provided that each Rating Agency
acknowledges that its rating of the Certificates in effect immediately before
such assignment and delegation will not be qualified or reduced as a result
of
such assignment and delegation. Pending appointment of a successor to
the Servicer hereunder, the Trustee shall act in such capacity as provided
above, subject to section 3.03 and unless prohibited by law. In
connection with such appointment and assumption, the Trustee may make such
arrangements for the compensation of such successor out of payments on Mortgage
Loans as it and such successor shall agree; provided, however, that in no case
shall the rate of such compensation exceed the Servicing Fee
Rate. The Trustee and such successor shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession. Neither the Trustee nor any other successor servicer
shall be deemed to be in default hereunder because of any failure to make,
or
any delay in making, any distribution hereunder or any portion thereof or any
failure to perform, or any delay in performing, any duties or responsibilities
hereunder, in either case caused by the failure of the Servicer to deliver
or
provide, or any delay in delivering or providing, any cash, information,
documents or records to it.
99
In
connection with the termination or resignation of the Servicer hereunder, either
(i) the successor Servicer, including the Trustee if the Trustee is acting
as successor Servicer, shall represent and warrant that it is a member of MERS
in good standing and shall agree to comply in all material respects with the
rules and procedures of MERS in connection with the servicing of the Mortgage
Loans that are registered with MERS, or (ii) the predecessor Servicer shall
cooperate with the successor Servicer either (x) in causing MERS to execute
and
deliver an assignment of Mortgage in recordable form to transfer the Mortgage
from MERS to the Trustee and to execute and deliver such other notices,
documents and other instruments as may be necessary or desirable to effect
a
transfer of such Mortgage Loan or servicing of such Mortgage Loan on the MERS®
System to the successor Servicer or (y) in causing MERS to designate on the
MERS® System the successor Servicer as the servicer of such Mortgage
Loan. The predecessor Servicer shall file or cause to be filed any
such assignment in the appropriate recording office. The successor
Servicer shall cause such assignment to be delivered to the Trustee promptly
upon receipt of the original with evidence of recording thereon or a copy
certified by the public recording office in which such assignment was
recorded.
Any
successor to the Servicer as servicer shall give notice to the Mortgagors of
such change of servicer and shall, during the term of its service as servicer,
maintain in force the policy or policies that the Servicer is required to
maintain pursuant to this Agreement.
Section
7.03. Notification
to Certificateholders.
(a) Upon
any termination of or appointment of a successor to the Servicer, the Trustee
shall give prompt written notice thereof to Certificateholders and to each
Rating Agency.
100
(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.
101
Article
Eight
CONCERNING THE
TRUSTEE
Section
8.01. Duties
of the Trustee.
The
Trustee, before the occurrence of an Event of Default and after the curing
of
all Events of Default that may have occurred, shall undertake to perform such
duties and only such duties as are specifically set forth in this
Agreement. In case an Event of Default has occurred and remains
uncured, the Trustee shall exercise such of the rights and powers vested in
it
by this Agreement, and use the same degree of care and skill in their exercise
as a prudent person would exercise or use under the circumstances in the conduct
of such person’s own affairs.
The
Trustee, upon receipt of all resolutions, certificates, statements, opinions,
reports, documents, orders or other instruments furnished to the Trustee that
are specifically required to be furnished pursuant to any provision of this
Agreement shall examine them to determine whether they are in the form required
by this Agreement. The Trustee shall not be responsible for the
accuracy or content of any such resolution, certificate, statement, opinion,
report, document, order, or other instrument.
No
provision of this Agreement shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act or
its
own willful misconduct; provided, however, that, unless an Event of Default
known to the Trustee has occurred and is continuing,
(a) the
duties and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for the
performance of the duties and obligations specifically set forth in this
Agreement, no implied covenants or obligations shall be read into this Agreement
against the Trustee, and the Trustee may conclusively rely, as to the truth
of
the statements and the correctness of the opinions expressed therein, upon
any
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Agreement which it believed in good faith to be genuine
and
to have been duly executed by the proper authorities respecting any matters
arising hereunder;
(b) the
Trustee shall not be liable for an error of judgment made in good faith by
a
Responsible Officer or Responsible Officers of the Trustee, unless it is finally
proven that the Trustee was negligent in ascertaining the pertinent facts;
and
(c) the
Trustee shall not be liable with respect to any action taken, suffered, or
omitted to be taken by it in good faith in accordance with the direction of
Holders of Certificates evidencing not less than 25% of the Voting Rights
relating to the time, method, and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred
upon
the Trustee under this Agreement. As long as any Voting Rights are
held by parties other than the Seller, its Affiliates, or its agents, Voting
Rights of Certificates held by the Seller, its Affiliates or its agents as
the
Seller shall certify to the Trustee upon any entity obtaining such ownership
will be excluded from participating in such voting arrangements, and excluded
from determining the 25% threshold.
Section
8.02. Certain
Matters Affecting the Trustee.
Except
as
otherwise provided in Section 8.01:
(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;
102
(b) the
Trustee may consult with counsel, financial advisers or accountants and the
advice of any such counsel, financial advisers or accountants and any Opinion
of
Counsel shall be full and complete authorization and protection in respect
of
any action taken or suffered or omitted by it hereunder in good faith and in
accordance with such Opinion of Counsel;
(c) the
Trustee shall not be liable for any action taken, suffered or omitted by it
in
good faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Agreement;
(d) the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or document,
unless requested in writing so to do by Holders of Certificates evidencing
not
less than 25% of the Voting Rights allocated to each Class of Certificates;
provided, however, that no Certificates held by the Seller, the Depositor or
any
Affiliate shall be given effect for the purpose of calculating any such
aggregation of Voting Rights;
(e) the
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents, accountants or attorneys
and
the Trustee shall not be responsible for any misconduct or negligence on the
part of any agents, accountants or attorneys appointed with due care by it
hereunder;
(f) the
Trustee shall not be required to risk or expend its own funds or otherwise
incur
any financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers hereunder if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not assured to it;
(g) the
Trustee shall not be liable for any loss on any investment of funds pursuant
to
this Agreement (other than as issuer of the investment security);
(h) the
Trustee shall not be deemed to have knowledge of an Event of Default until
a
Responsible Officer of the Trustee shall have received written notice
thereof;
(i) the
Trustee shall be under no obligation to exercise any of the trusts, rights
or
powers vested in it by this Agreement or to institute, conduct or defend any
litigation hereunder or in relation hereto at the request, order or direction
of
any of the Certificateholders, pursuant to this Agreement, unless such
Certificateholders shall have offered to the Trustee reasonable security or
indemnity satisfactory to the Trustee against the costs, expenses and
liabilities which may be incurred therein or thereby;
(j) the
Trustee or its Affiliates are permitted to receive additional compensation
that
could be deemed to be in the Trustee’s economic self-interest for (i) serving as
investment adviser, administrator, shareholder servicing agent, custodian or
sub-custodian with respect to certain of the Permitted Investments, (ii) using
Affiliates to effect transactions in certain Permitted Investments and (iii)
effecting transactions in certain Permitted Investments. The Trustee
does not guarantee the performance of any Permitted Investment; and
103
(k) The
Trustee shall not knowingly take any action that would cause the Trust Fund
to
fail to qualify as a qualifying special purpose entity.
In
order
to comply with laws, rules, regulations and executive orders in effect from
time
to time applicable to banking institutions, including those relating to the
funding of terrorist activities and money laundering ("Applicable Law"), the
Trustee is required to obtain, verify and record certain information relating
to
individuals and entities which maintain a business relationship with the
Trustee. Accordingly, each of the parties agrees to provide to the
Trustee upon its request from time to time such identifying
information and documentation as may be available for such party in
order to enable the Trustee to comply with Applicable Law.
Section
8.03. Trustee
Not Liable for Certificates or Mortgage Loans.
The
recitals contained herein and in the Certificates shall be taken as the
statements of the Depositor or the Seller, as the case may be, and the Trustee
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Agreement or of the
Certificates or of any Mortgage Loan or related document other than with respect
to the Trustee’s execution and countersignature of the
Certificates. The Trustee shall not be accountable for the use or
application by the Depositor or the Servicer of any funds paid to the Depositor
or the Servicer in respect of the Mortgage Loans or deposited in or withdrawn
from the Certificate Account by the Depositor or the Servicer.
Except
as
provided in Section 2.01(c), the Trustee shall have no responsibility for
filing or recording any financing or continuation statement in any public office
at any time or to otherwise perfect or maintain the perfection of any security
interest or lien granted to it hereunder (unless the Trustee shall have become
the successor Servicer). The Trustee makes no representations as to
the validity or sufficiency of this Agreement or of the Certificates or of
any
Mortgage Loan or related document or of MERS or the MERS® System other than with
respect to the Trustee’s execution and counter-signature of the
Certificates.
The
Trustee executes the Certificates not in its individual capacity but solely
as
Trustee of the Trust Fund created by this Agreement, in the exercise of the
powers and authority conferred and vested in it by this
Agreement. Each of the undertakings and agreements made on the part
of the Trustee on behalf of the Trust Fund in the Certificates is made and
intended not as a personal undertaking or agreement by the Trustee but is made
and intended for the purpose of binding only the Trust Fund.
Section
8.04. Trustee
May Own Certificates.
The
Trustee in its individual or any other capacity may become the owner or pledgee
of Certificates with the same rights as it would have if it were not the
Trustee.
Section
8.05. Trustee’s
Fees and Expenses.
As
compensation for its activities under this Agreement, on each Distribution
Date
the Trustee may withdraw from the Distribution Account the Trustee Fee for
that
Distribution Date. The Trustee and any director, officer, employee,
or agent of the Trustee shall be indemnified by the Servicer against any loss,
liability, or expense (including reasonable attorney’s fees) resulting from any
error in any tax or information return prepared by the Servicer or incurred
in
connection with any claim or legal action relating to
104
(a) this
Agreement, (b) the Certificates, or (c) the performance of any of the Trustee’s
duties under this Agreement, other than any loss, liability or expense incurred
because of willful misfeasance, bad faith or negligence in the performance
of
any of the Trustee’s duties hereunder or incurred by reason of any action of the
Trustee taken at the direction of the Certificateholders under this
Agreement. This indemnity shall survive the termination of this
Agreement or the resignation or removal of the Trustee under this
Agreement. Without limiting the foregoing, except as otherwise agreed
upon in writing by the Depositor and the Trustee, and except for any expense,
disbursement, or advance arising from the Trustee’s negligence, bad faith, or
willful misconduct, the Servicer shall pay or reimburse the Trustee, for all
reasonable expenses, disbursements, and advances incurred or made by the Trustee
in accordance with this Agreement with respect to
(i) the
reasonable compensation, expenses, and disbursements of its counsel not
associated with the closing of the issuance of the Certificates,
and
(ii) the
reasonable compensation, expenses, and disbursements of any accountant,
engineer, or appraiser that is not regularly employed by the Trustee, to the
extent that the Trustee must engage them to perform services under this
Agreement.
Except
as
otherwise provided in this Agreement, the Trustee shall not be entitled to
payment or reimbursement for any routine ongoing expenses incurred by the
Trustee in the ordinary course of its duties as Trustee, Supplemental Interest
Trustee or Swap Trustee, Certificate Registrar, or Paying Agent under this
Agreement or for any other expenses.
Section
8.06. Eligibility
Requirements for the Trustee.
The
Trustee hereunder shall at all times be a corporation or association organized
and doing business under the laws of a state or the United States of America,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000, subject to supervision or
examination by federal or state authority and with a credit rating which would
not cause either of the Rating Agencies to reduce their respective then current
ratings of the Certificates (or having provided such security from time to
time
as is sufficient to avoid such reduction) as evidenced in writing by each Rating
Agency. If such corporation or association publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section 8.06 the combined capital and surplus of such corporation or
association shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In case at any
time the Trustee shall cease to be eligible in accordance with this
Section 8.06, the Trustee shall resign immediately in the manner and with
the effect specified in Section 8.07. The entity serving as
Trustee may have normal banking and trust relationships with the Depositor
and
its affiliates or the Servicer and its affiliates; provided, however, that
such
entity cannot be an affiliate of the Seller, the Depositor or the Servicer
other
than the Trustee in its role as successor to the Servicer.
Section
8.07. Resignation
and Removal of the Trustee.
The
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice of resignation to the Depositor, the Servicer, and
each
Rating Agency not less than 60 days before the date specified in such notice,
when, subject to Section 8.08, such resignation is to take effect, and
acceptance by a successor trustee in accordance with Section 8.08 meeting
the qualifications set forth in Section 8.06. If no successor
trustee meeting such qualifications shall have been so appointed and have
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.
105
As
a
condition to the effectiveness of any such resignation, at least 15 calendar
days prior to the effective date of such resignation, the Trustee shall provide
(x) written notice to the Depositor of any successor pursuant to this
Section and (y) in writing and in form and substance reasonably
satisfactory to the Depositor, all information reasonably requested by the
Depositor in order to comply with its reporting obligation under Item 6.02
of
Form 8-K with respect to the resignation of the Trustee.
If
at any
time 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, or (iv) during
the
period in which the Depositor is required to file Exchange Act Reports with
respect to the Trust Fund, the Trustee fails to comply with its obligations
under the last sentence of Section 7.01, the preceding paragraph,
Section 8.09 or Article 11 and such failure is not remedied within the
lesser of 10 calendar days or such period in which the applicable Exchange
Act
Report can be filed timely (without taking into account any extensions), then,
in the case of clauses (i) through (iii), then the Depositor or the Servicer,
or
in the case of clause (iv), the Depositor, may remove the Trustee and appoint
a
successor trustee by written instrument, in triplicate, one copy of which shall
be delivered to the Trustee, one copy to the Servicer and one copy to the
successor trustee.
The
Holders of Certificates entitled to at least 51% of the Voting Rights may at
any
time remove the Trustee and appoint a successor trustee by written instrument
or
instruments, in triplicate, signed by such Holders or their attorneys-in-fact
duly authorized, one complete set of which shall be delivered by the successor
Trustee to the Servicer, one complete set to the Trustee so removed, one
complete set to the successor so appointed and one complete set to the
Depositor, together with a written description of the basis for such
removal. As long as any Voting Rights are held by parties other than
the Seller, its Affiliates, or its agents, Voting Rights of Certificates held
by
the Seller, its Affiliates or its agents as the Seller shall certify to the
Trustee upon any such entity obtaining such ownership will be excluded from
participating in such voting arrangements, and excluded from determining the
51%
threshold. The successor trustee shall notify each Rating Agency of
any removal of the Trustee.
Any
resignation or removal of the Trustee and appointment of a successor trustee
pursuant to this Section 8.07 shall become effective upon acceptance of
appointment by the successor trustee as provided in
Section 8.08.
Section
8.08. Successor
Trustee.
Any
successor trustee appointed as provided in Section 8.07 shall execute,
acknowledge and deliver to the Depositor and to its predecessor trustee and
the
Servicer an instrument accepting such appointment hereunder and thereupon the
resignation or removal of the predecessor trustee shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of
its
predecessor hereunder, with the like effect as if originally named as trustee
herein. The Depositor, the Servicer and the predecessor trustee shall
execute and deliver such instruments and do such other things as may reasonably
be required for more fully and certainly vesting and confirming in the successor
trustee all such rights, powers, duties, and obligations.
No
successor trustee shall accept appointment as provided in this Section 8.08
unless, at the time of its acceptance, the successor trustee is eligible under
Section 8.06 and its appointment does not adversely affect the then current
rating of the Certificates and has provided to the Depositor in writing and
in
form and substance reasonably satisfactory to the Depositor, all information
reasonably requested by the Depositor in order to comply with its reporting
obligation under Item 6.02 of Form 8-K with respect to a replacement
Trustee.
106
Upon
acceptance of appointment by a successor trustee as provided in this
Section 8.08, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates. If the Depositor
fails to mail such notice within 10 days after acceptance of appointment by
the
successor trustee, the successor trustee shall cause such notice to be mailed
at
the expense of the Depositor.
Section
8.09. Merger
or Consolidation of the Trustee.
Any
corporation into which the Trustee may be merged or converted or with which
it
may be consolidated or any corporation resulting from any merger, conversion
or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to the business of the Trustee, shall be the successor of the Trustee
hereunder, provided that such corporation shall be eligible under
Section 8.06 without the execution or filing of any paper or further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
As
a
condition to the effectiveness of any merger or consolidation, at least 15
calendar days prior to the effective date of any merger or consolidation of
the
Trustee, the Trustee shall provide (x) written notice to the Depositor of any
successor pursuant to this Section and (y) in writing and in form and
substance reasonably satisfactory to the Depositor, all information reasonably
requested by the Depositor in order to comply with its reporting obligation
under Item 6.02 of Form 8-K with respect to a replacement Trustee.
Section
8.10. Appointment
of Co-Trustee or Separate Trustee.
Notwithstanding
any other provisions of this Agreement, at any time, for the purpose of meeting
any legal requirements of any jurisdiction in which any part of the Trust Fund
or property securing any Mortgage Note may at the time be located, the Servicer
and the Trustee acting jointly shall have the power and shall execute and
deliver all instruments to appoint one or more Persons approved by the Trustee
to act as co-trustee or co-trustees jointly with the Trustee, or separate
trustee or separate trustees, of all or any part of the Trust Fund, and to
vest
in such Person or Persons, in such capacity and for the benefit of the
Certificateholders, such title to the Trust Fund or any part thereof, whichever
is applicable, and, subject to the other provisions of this Section 8.10,
such powers, duties, obligations, rights and trusts as the Servicer and the
Trustee may consider appropriate. If the Servicer shall not have
joined in such appointment within 15 days after the receipt by it of a request
to do so, or in the case an Event of Default shall have occurred and be
continuing, the Trustee alone shall have the power to make such
appointment. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under
Section 8.06 and no notice to Certificateholders of the appointment of any
co-trustee or separate trustee shall be required under
Section 8.08.
Every
separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and
conditions:
(a) To
the extent necessary to effectuate the purposes of this Section 8.10, all
rights, powers, duties and obligations conferred or imposed upon the Trustee,
except for the obligation of the Trustee under this Agreement to advance funds
on behalf of the Servicer, shall be conferred or imposed upon and exercised
or
performed by the Trustee and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or co-trustee is not authorized
to
act separately without the Trustee joining in such act), except to the extent
that under any law of any jurisdiction in which any particular act or acts
are
to be performed (whether as Trustee hereunder or as successor to the Servicer
hereunder), the Trustee shall be incompetent or unqualified to perform such
act
or acts, in which event such rights, powers, duties and obligations (including
the holding of title to the applicable Trust Fund or any portion thereof in
any
such jurisdiction) shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of the Trustee;
107
(b) No
trustee hereunder shall be held personally liable because of any act or omission
of any other trustee hereunder and such appointment shall not, and shall not
be
deemed to, constitute any such separate trustee or co-trustee as agent of the
Trustee;
(c) The
Trustee may at any time accept the resignation of or remove any separate trustee
or co-trustee; and
(d) The
Servicer, and not the Trustee, shall be liable for the payment of reasonable
compensation, reimbursement and indemnification to any such separate trustee
or
co-trustee.
Any
notice, request or other writing given to the Trustee shall be deemed to have
been given to each of the separate trustees and co-trustees, when and as
effectively as if given to each of them. Every instrument appointing
any separate trustee or co-trustee shall refer to this Agreement and the
conditions of this Article VIII. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject
to
all the provisions of this Agreement, specifically including every provision
of
this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be
filed with the Trustee and a copy thereof given to the Servicer and the
Depositor.
Any
separate trustee or co-trustee may, at any time, constitute the Trustee its
agent or attorney-in-fact, with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement
on
its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section
8.11. Tax
Matters.
It
is
intended that the assets with respect to which one or more REMIC elections
pertaining to the Trust Fund is to be made, as set forth in the Preliminary
Statement, shall constitute, and that the conduct of matters relating to such
assets shall be such as to qualify such assets as, a “real estate mortgage
investment conduit” as defined in and in accordance with the REMIC
Provisions. In furtherance of such intention, the Trustee covenants
and agrees that it shall act as agent (and the Trustee is hereby appointed
to
act as agent) on behalf of each REMIC created under this Agreement and that
in
such capacity it shall:
(a) prepare
and file in a timely manner, a U.S. Real Estate Mortgage Investment Conduit
Income Tax Return (Form 1066 or any successor form adopted by the Internal
Revenue Service) with respect to each REMIC created hereunder and prepare and
file with the Internal Revenue Service and applicable state or local tax
authorities income tax or information returns for each taxable year with respect
to each REMIC described in the Preliminary Statement, 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;
108
(b) within
thirty days of the Closing Date, furnish to the Internal Revenue Service, on
Forms 8811 or as otherwise may be required by the Code, the name, title,
address, and telephone number of the person that the holders of the Certificates
may contact for tax information relating thereto, together with such additional
information as may be required by such Form, and update such information at
the
time or times in the manner required by the Code;
(c) make
an election that each REMIC created under this Agreement be treated as a REMIC
on the federal tax return for its first taxable year (and, if necessary, under
applicable state law);
(d) prepare
and forward to the Certificateholders and to the Internal Revenue Service and,
if necessary, state tax authorities, all information returns and reports as
and
when required to be provided to them in accordance with the REMIC Provisions,
including the calculations of any original issue discount and of taxable income
or net loss to the holders of the residual interests in each REMIC created
hereunder using the Prepayment Assumption (as defined in the Prospectus
Supplement). For purposes of calculating taxable income or net loss to the
holders of the residual interests in each such REMIC, the Trustee also shall
assume that the indices in respect of any adjustable rate Mortgage Loans are
static until the liquidation or purchase of the Mortgage Loans in accordance
with Section 9.01 herein;
(e) provide
information necessary for the computation of tax imposed on the transfer of
a
Residual Certificate to a Person that is not a Permitted Transferee, or an
agent
(including a broker, nominee or other middleman) of a Person that is not a
Permitted Transferee, or a pass-through entity in which a Person that is not
a
Permitted Transferee is the record holder of an interest (the reasonable cost
of
computing and furnishing such information may be charged to the Person liable
for such tax);
(f) to
the extent that they are under its control, conduct matters relating to such
assets at all times that any Certificates are outstanding so as to maintain
the
status as any REMIC created under this Agreement under the REMIC
Provisions;
(g) not
knowingly or intentionally take any action or omit to take any action that
would
cause the termination of the REMIC status of any REMIC created under this
Agreement;
(h) pay,
from the sources specified in the third paragraph of this Section 8.11, the
amount of any federal or state tax, including prohibited transaction taxes
as
described below, imposed on any REMIC before its termination when and as the
same shall be due and payable (but such obligation shall not prevent the Trustee
or any other appropriate Person from contesting any such tax in appropriate
proceedings and shall not prevent the Trustee from withholding payment of such
tax, if permitted by law, pending the outcome of such proceedings);
(i) ensure
that federal, state or local income tax or information returns shall be signed
by the Trustee or such other person as may be required to sign such returns
by
the Code or state or local laws, regulations or rules;
(j) maintain
records relating to each REMIC created under this Agreement, including the
income, expenses, assets, and liabilities thereof and the fair market value
and
adjusted basis of the assets determined at such intervals as may be required
by
the Code, as may be necessary to prepare the foregoing returns, schedules,
statements or information; and
(k) as
and when necessary and appropriate, represent each REMIC created under this
Agreement in any administrative or judicial proceedings relating to an
examination or audit by any governmental taxing authority, request an
administrative adjustment as to any taxable year of such REMIC, enter into
settlement agreements with any governmental taxing agency, extend any statute
of
limitations relating to any tax item of such REMIC, and otherwise act on behalf
of such REMIC in relation to any tax matter or controversy involving
it.
109
To
enable
the Trustee to perform its duties under this Agreement, the Depositor shall
provide to the Trustee within ten days after the Closing Date all information
or
data that the Trustee requests in writing and determines to be relevant for
tax
purposes to the valuations and offering prices of the Certificates, including
the price, yield, prepayment assumption, and projected cash flows of the
Certificates and the Mortgage Loans. Thereafter, the Depositor shall
provide to the Trustee promptly upon written request therefor any additional
information or data that the Trustee may, from time to time, reasonably request
to enable the Trustee to perform its duties under this Agreement. The
Depositor hereby indemnifies the Trustee for any losses, liabilities, damages,
claims, or expenses of the Trustee arising from any errors or miscalculations
of
the Trustee that result from any failure of the Depositor to provide, or to
cause to be provided, accurate information or data to the Trustee on a timely
basis.
The
Trustee shall deliver or cause to be delivered a correct, complete and duly
executed IRS Form W-9 of the Supplemental Interest Trust or the Swap Trust,
as
applicable, to the Corridor Counterparty or to the Swap Counterparty, as
applicable, no later than the first payment date under the Corridor Contract
or
the Swap Contract, and, if requested by the Swap Counterparty or the Corridor
Counterparty, as applicable, an applicable IRS From W-8IMY.
If
any
tax is imposed on “prohibited transactions” (as defined in section 860F(a)(2) of
the Code) of any REMIC created under this Agreement, on the “net income from
foreclosure property” of any REMIC created under this Agreement as defined in
section 860G(c) of the Code, on any contribution to any REMIC created under
this
Agreement after the Startup Day pursuant to section 860G(d) of the Code, or
any
other tax is imposed, including any minimum tax imposed on any REMIC created
hereunder pursuant to sections 23153 and 24874 of the California Revenue and
Taxation Code, if not paid as otherwise provided for herein, the tax shall
be
paid by (i) the Trustee, if any such other tax arises out of or results from
negligence of the Trustee in the performance of any of its obligations under
this Agreement, (ii) the Servicer or the Seller, in the case of any such minimum
tax, if such tax arises out of or results from a breach by the Servicer or
Seller of any of their obligations under this Agreement, (iii) the Seller,
if
any such tax arises out of or results from the Seller’s obligation to repurchase
a Mortgage Loan pursuant to Section 2.02 or 2.03, or (iv) in all other
cases, or if the Trustee, the Servicer, or the Seller fails to honor its
obligations under the preceding clauses (i), (ii), or (iii), any such tax will
be paid with amounts otherwise to be distributed to the Certificateholders,
as
provided in Section 3.09(b).
The
Trustee shall treat the Carryover Reserve Fund and the Supplemental Interest
Trust as outside reserve funds within the meaning of Treasury Regulation
1.860G-2(h) that are owned by the Holders of the Class C
Certificates. The Carryover Reserve Fund and Supplemental Interest
Trust shall not be assets of any REMIC created under this
Agreement. The Trustee shall treat the rights of the Holders of the
LIBOR Certificates to receive payments from the Carryover Reserve Fund and
the
Supplemental Interest Trust as rights in an interest rate swap contract written
by the Holders of the Class C Certificates. The Trustee shall
allocate tax basis to this asset. The Trustee shall treat the rights
of the Holders of the LIBOR Certificates to receive payments from the Carryover
Reserve Fund and the Supplemental Interest Trust based on the information
provided to the Trustee by the Underwriter as soon as practicable after the
Closing Date. Thus, the LIBOR Certificates shall be treated as
representing ownership of not only a Master REMIC regular interest, but also
ownership of an interest in an interest rate cap contract. Any
differences in the distributions to a Holder of a LIBOR Certificate (positive
or
negative) that would result from the application of the REMIC Cap rather than
the applicable Available Funds Rate shall be treated by the Trustee as
reconciled among the LIBOR Certificates by swap payments made pursuant to
notional principal contracts entered into among the Holders of the LIBOR
Certificates.
110
The
Trustee shall file or cause to be filed with the Internal Revenue Service,
Form
1041 or such other form as may be applicable, and shall furnish or cause to
be
furnished to the Class C Certificateholders and the Holders of the Class L
Certificates, in the time or times and in the manner required by the
Code.
111
Article
Nine
TERMINATION
Section
9.01. Termination
upon Liquidation or Purchase of the Mortgage Loans.
Subject
to Section 9.03, the obligations and responsibilities of the Depositor, the
Servicer, and the Trustee created hereby shall terminate upon the earlier
of
(a) the
purchase by the Servicer of all Mortgage Loans (and REO Properties) at the
price
equal to the sum of
(i) 100%
of the Stated Principal Balance of each Mortgage Loan (other than in respect
of
a Delinquent Mortgage Loan or REO Property) plus one month’s accrued interest
thereon at the applicable Adjusted Mortgage Rate less any amounts collected
by
the Servicer representing principal and interest due after the related Due
Date,
(ii) the
lesser of (x) the appraised value of any Delinquent Mortgage Loan or REO
Property as determined by the higher of two appraisals completed by two
independent appraisers selected by the Servicer at the expense of the Servicer
and (y) the Stated Principal Balance of each such Delinquent Mortgage Loan
or
Mortgage Loan related to such REO Property, in each case plus accrued and unpaid
interest thereon at the applicable Adjusted Net Mortgage Rate, and
(iii) any
costs and damages incurred by the Trust Fund in connection with any violation
by
each Mortgage Loan of any predatory or abusive lending law, and
(b) the
later of
(i) the
maturity or other liquidation (or any Advance with respect thereto) of the
last
Mortgage Loan and the disposition of all REO Property and
(ii) the
distribution to Certificateholders of all amounts required to be distributed
to
them pursuant to this Agreement. In no event shall the trusts created
hereby continue beyond the expiration of 21 years from the death of the survivor
of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the
United States to the Court of St. James’s, living on the date of this
Agreement.
The
right
to purchase all Mortgage Loans and REO Properties pursuant to clause (a) above
shall be conditioned upon the aggregate Stated Principal Balance of those
Mortgage Loans, at the time of any such repurchase, aggregating less than ten
percent (10%) of the aggregate Stated Principal Balance of the Mortgage Loans
as
of the Cut-off Date. The first Distribution Date on which the right
to purchase all Mortgage Loans and REO Properties pursuant to clause (a) above
first becomes exercisable is referred to as the “Optional
Termination Date.” The Servicer shall effect any such
repurchase by depositing (x) the purchase price, as calculated above, as of
the
month preceding the date on which such purchase price shall be distributed
to
Certificateholders into the Certificate Account and (y) any Swap Termination
Payment owed to the Swap Counterparty and any outstanding principal balance
on
any net interest margin securities backed by the Class C
Certificates. With such repurchase, the Servicer shall acquire any
rights or potential rights of the Certificateholders or the Trustee to causes
of
action against any Person relating to the Mortgage Loans or the origination
of
the Mortgage Loans, including, without limitation, the right to enforce any
breach of a representation or warranty made at any time with respect to the
Mortgage Loans.
112
Section
9.02. Final
Distribution on the Certificates.
If
on any
Determination Date the Servicer determines that there are no Outstanding
Mortgage Loans and no other funds or assets in the Trust Fund other than the
funds in the Certificate Account, the Servicer shall direct the Trustee promptly
to send a final distribution notice to each Certificateholder. If the
Servicer elects to terminate the Trust Fund pursuant to clause (a) of
Section 9.01, no later than the 15th day of
the month
preceding the month of the final Distribution Date the Servicer shall notify
the
Depositor and the Trustee of the date the Servicer intends to terminate the
Trust Fund and of the applicable repurchase price of the Mortgage Loans and
REO
Properties.
Notice
of
any termination of the Trust Fund specifying the Distribution Date on which
Certificateholders may surrender their Certificates for payment of the final
distribution and cancellation shall be given promptly by the Trustee by letter
to Certificateholders mailed not earlier than the 15th day and not later than
the last day of the month next preceding the month of such final
distribution. Any such notice shall specify (a) the Distribution Date
upon which final distribution on the Certificates will be made upon presentation
and surrender of Certificates at the office therein designated, (b) the amount
of such final distribution, (c) the location of the office or agency at which
such presentation and surrender must be made, and (d) that the Record Date
otherwise applicable to the Distribution Date is not applicable, distributions
being made only upon presentation and surrender of the Certificates at the
office therein specified. The Servicer will give such notice to each
Rating Agency at the time such notice is given to
Certificateholders.
If
this
notice is given, the Servicer shall cause all funds in the Certificate Account
to be remitted to the Trustee for deposit in the Distribution Account on the
Business Day before the applicable Distribution Date in an amount equal to
the
final distribution in respect of the Certificates. Upon such final
deposit with respect to the Trust Fund and the receipt by the Trustee of a
Request for Release therefor, the Trustee shall promptly release to the Servicer
the Mortgage Files for the Mortgage Loans.
Upon
presentation and surrender of the Certificates, the Trustee shall cause to
be
distributed to the Certificateholders of each Class on the final Distribution
Date and in the order set forth in Section 4.02, an amount equal to (i) as
to each Class of Regular Certificates (other than the Notional Amount
Certificates), its Certificate Balance plus for each such Class accrued interest
thereon (or on their Notional Amount, if applicable) in the case of an
interest-bearing Certificate and (ii) as to the Residual Certificates, any
amount remaining on deposit in the Distribution Account (other than the amounts
retained to meet claims) after application pursuant to clause (i)
above. Notwithstanding the reduction of the Certificate Balance of
any Class of Certificates to zero, such Class will be outstanding hereunder
solely for the purpose of receiving distributions and for no other purpose
until
the termination of the respective obligations and responsibilities of the
Depositor, the Servicer and the Trustee hereunder in accordance with Article
Nine. The foregoing provisions are intended to distribute to each
Class of Regular Certificates any accrued and unpaid interest and principal
to
which they are entitled based on the Pass-Through Rates and actual Class
Certificate Balances or Notional Amounts set forth in the Preliminary Statement
upon liquidation of the Trust Fund.
If
any
affected Certificateholder does not surrender its Certificates for cancellation
within six months after the date specified in the above mentioned written
notice, the Trustee shall give a second written notice to the remaining
Certificateholders to surrender their Certificates for cancellation and receive
the final distribution with respect thereto. If within six months
after the second notice all the applicable Certificates shall not have been
surrendered for cancellation, the Trustee may take appropriate steps, or may
appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds and other assets which remain a part
of
the Trust Fund. If within one year after the second notice all
Certificates shall not have been surrendered for cancellation, then the Holders
of the Class A-R Certificates shall be entitled to all unclaimed funds and
other
assets of the Trust Fund which remain subject hereto.
113
Section
9.03. Additional
Termination Requirements.
(a) If
the Servicer exercises its purchase option with respect to the Mortgage Loans
as
provided in Section 9.01, the Trust Fund shall be terminated in accordance
with the following additional requirements, unless the Trustee has been supplied
with an Opinion of Counsel, at the expense of the Servicer, to the effect that
the failure to comply with the requirements of this Section 9.03 will not
(i) result in the imposition of taxes on “prohibited transactions” on any REMIC
created hereunder as defined in section 860F of the Code, or (ii) cause any
REMIC created under this Agreement to fail to qualify as a REMIC at any time
that any Certificates are outstanding:
(b) The
Trustee shall sell all of the assets of the Trust Fund to the Servicer, and,
within 90 days of such sale, shall distribute to the Certificateholders the
proceeds of such sale in complete liquidation of each REMIC created under this
Agreement.
(c) The
Trustee shall attach a statement to the final federal income tax return for
each
REMIC created under this Agreement stating that pursuant to Treasury Regulation
§ 1.860F-1, the first day of the 90-day liquidation period for such REMIC was
the date on which the Trustee sold the assets of the Trust Fund to the
Servicer.
Section
9.04. Termination
of the Supplemental Interest Trust; Termination of the Swap
Trust.
The
Supplemental Interest Trust shall terminate on the earlier of (i) the Corridor
Contract Termination Date and (ii) the termination of this
Agreement. The Swap Trust shall terminate on the earlier of (i) the
Swap Contract Termination Date and (ii) the termination of this
Agreement.
114
Article
Ten
MISCELLANEOUS
PROVISIONS
Section
10.01. Amendment.
This
Agreement may be amended from time to time by the Depositor, the Servicer and
the Trustee without the consent of any of the Certificateholders (i) to cure
any
ambiguity or mistake, (ii) to correct any defective provision in this Agreement
or to supplement any provision in this Agreement which may be inconsistent
with
any other provision in this Agreement, (iii) to conform this Agreement to the
Prospectus Supplement, (iv) to add to the duties of the Depositor, the Seller
or
the Servicer, (v) to modify, alter, amend, add to or rescind any of the terms
or
provisions contained in this Agreement to comply with any rules or regulations
promulgated by the Commission from time to time, (vi) to add any other
provisions with respect to matters or questions arising under this Agreement,
or
(vii) to modify, alter, amend, add to, or rescind any of the terms or provisions
contained in this Agreement.
No
action
pursuant to clauses (v), (vi) or (vii) above may, as evidenced by an Opinion
of
Counsel (which Opinion of Counsel shall not be an expense of the Trustee or
the
Trust Fund), adversely affect in any material respect the interests of any
Certificateholder. The amendment shall not be deemed to adversely
affect in any material respect the interests of the Certificateholders if the
Person requesting the amendment obtains a letter from each Rating Agency stating
that the amendment would not result in the downgrading, qualification or
withdrawal of the respective ratings then assigned to the
Certificates. Any such letter in and of itself will not represent a
determination as to the materiality of any amendment and will represent a
determination only as to the credit issues affecting any rating. Each
party to this Agreement agrees that it will cooperate with each other party
in
amending this Agreement pursuant to clause (v) above.
The
Trustee, the Depositor, and the Servicer also may at any time and from time
to
time amend this Agreement without the consent of the Certificateholders to
modify, eliminate or add to any of its provisions to the extent necessary or
helpful to (i) maintain the qualification of any REMIC created under this
Agreement as a REMIC under the Code, (ii) avoid or minimize the risk of the
imposition of any tax on any REMIC created under this Agreement pursuant to
the
Code that would be a claim at any time before the final redemption of the
Certificates, or (iii) comply with any other requirements of the Code, if the
Trustee has been provided an Opinion of Counsel, which opinion shall be an
expense of the party requesting such opinion but in any case shall not be an
expense of the Trustee or the Trust Fund, to the effect that the action is
necessary or helpful for one of the foregoing purposes.
This
Agreement may also be amended from time to time by the Depositor, the Servicer,
and the Trustee with the consent of the Holders of Certificates evidencing
Percentage Interests aggregating not less than 51% of each Class of Certificates
adversely affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement
or
of modifying in any manner the rights of the Holders of
Certificates. As long as any Voting Rights are held by parties other
than the Seller, its Affiliates, or its agents, Voting Rights of Certificates
held by the Seller, its Affiliates or its agents as the Seller shall certify
to
the Trustee upon any such entity obtaining such ownership will be excluded
from
participating in such voting arrangements, and excluded from determining the
51%
threshold. No amendment shall
(i) reduce
in any manner the amount of, or delay the timing of, payments required to be
distributed on any Certificate without the consent of the Holder of such
Certificate,
115
(ii) amend,
modify, add to, rescind, or alter in any respect Section 10.13,
notwithstanding any contrary provision of this Agreement, without the consent
of
the Holders of Certificates evidencing Percentage Interests aggregating not
less
than 66 2/3% (provided, however, that no Certificates held by the Seller, the
Depositor or any Affiliate thereby shall be given effect for the purpose of
calculating any such aggregation of Percentage Interests), or
(iii) reduce
the aforesaid percentages of Certificates the Holders of which are required
to
consent to any such amendment, without the consent of the Holders of all such
Certificates then outstanding.
Notwithstanding
any contrary provision of this Agreement, the Trustee shall not consent to
any
amendment to this Agreement unless (i) it shall have first received an Opinion
of Counsel, which opinion shall not be an expense of the Trustee or the Trust
Fund, to the effect that such amendment will not cause the imposition of any
tax
on any REMIC created under this Agreement or the Certificateholders or cause
any
REMIC created hereunder to fail to qualify as a REMIC at any time that any
Certificates are outstanding and (ii) because the Trust Fund is required to
be a
Qualifying Special Purpose Entity (as that term is defined in Statement of
Financial Accounting Standards No. 140 (“SFAS 140”), in order for the Seller to
continue to account for the transfer of the Mortgage Loans under this Agreement
as a sale under SFAS 140, prior to the parties hereto entering into such an
amendment, the Trustee shall receive an Officer’s Certificate, which shall not
be an expense of the Trustee or the Trust Fund, to the effect that such
amendment would not “significantly change” (within the meaning of SFAS 140) the
permitted activities of the Trust Fund so as to cause the Trust Fund to fail
to
qualify as a Qualifying Special Purpose Entity.
Notwithstanding
any contrary provision of this Agreement, no amendment shall adversely affect
in
any material respect the Swap Counterparty without the prior written consent
of
the Swap Counterparty, which consent shall not be unreasonably
withheld.
Promptly
after the execution of any amendment to this Agreement requiring the consent
of
Certificateholders, the Trustee shall furnish written notification of the
substance or a copy of such amendment to each Certificateholder and each Rating
Agency.
It
shall
not be necessary for the consent of Certificateholders under this
Section 10.01 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent shall approve the substance
thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject
to
such reasonable regulations as the Trustee may prescribe.
Nothing
in this Agreement shall require the Trustee to enter into an amendment without
receiving an Opinion of Counsel (which Opinion shall not be an expense of the
Trustee or the Trust Fund), satisfactory to the Trustee that (i) such amendment
is permitted and is not prohibited by this Agreement and that all requirements
for amending this Agreement have been complied with; and (ii) either (A) the
amendment does not adversely affect in any material respect the interests of
any
Certificateholder or (B) the conclusion set forth in the preceding clause (A)
is
not required to be reached pursuant to this Section 10.01.
Section
10.02. Recordation
of Agreement; Counterparts.
This
Agreement is subject to recordation in all appropriate public offices for real
property records in all the counties or other comparable jurisdictions in which
any or all of the properties subject to the Mortgages are situated, and in
any
other appropriate public recording office or elsewhere, such recordation to
be
effected by the Servicer at its expense, but only upon receipt of an Opinion
of
Counsel to the effect that such recordation materially and beneficially affects
the interests of the Certificateholders.
116
For
the
purpose of facilitating the recordation of this Agreement as herein provided
and
for other purposes, this Agreement may be executed simultaneously in any number
of counterparts, each of which counterparts shall be deemed to be an original,
and such counterparts shall constitute but one and the same
instrument.
Section
10.03. Governing
Law.
THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
Section
10.04. Intention
of Parties.
It
is the
express intent of the parties hereto that the conveyance (i) of the Mortgage
Loans by the Seller to the Depositor and (ii) of the Trust Fund by the Depositor
to the Trustee each be, and be construed as, an absolute sale
thereof. It is, further, not the intention of the parties that such
conveyances be deemed a pledge thereof. However, if, notwithstanding
the intent of the parties, the assets are held to be the property of the Seller
or Depositor, as the case may be, or if for any other reason this Agreement
is
held or deemed to create a security interest in either such assets, then (i)
this Agreement shall be deemed to be a security agreement within the meaning
of
the UCC and (ii) the conveyances provided for in this Agreement shall be deemed
to be an assignment and a grant (i) by the Seller to the Depositor or (ii)
by
the Depositor to the Trustee, for the benefit of the Certificateholders, of
a
security interest in all of the assets transferred, whether now owned or
hereafter acquired.
The
Seller and the Depositor for the benefit of the Certificateholders shall, to
the
extent consistent with this Agreement, take such actions as may be necessary
to
ensure that, if this Agreement were deemed to create a security interest in
the
Trust Fund, such security interest would be deemed to be a perfected security
interest of first priority under applicable law and will be maintained as such
throughout the term of the Agreement. The Depositor shall arrange for
filing any Uniform Commercial Code continuation statements in connection with
any security interest granted or assigned to the Trustee for the benefit of
the
Certificateholders.
Section
10.05. Notices.
(a) The
Trustee shall use its best efforts to promptly provide notice to each Rating
Agency and the Swap Counterparty with respect to each of the following of which
it has actual knowledge:
|
1.
|
Any
material change or amendment to this
Agreement;
|
|
2.
|
The
occurrence of any Event of Default that has not been
cured;
|
|
3.
|
The
resignation or termination of the Servicer or the Trustee and the
appointment of any successor;
|
|
4.
|
The
repurchase or substitution of Mortgage Loans pursuant to
Section 2.03; and
|
117
|
5.
|
The
final distribution 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 4.06;
|
|
2.
|
Each
annual statement as to compliance described in
Section 3.17;
|
|
3.
|
Each
annual independent public accountants’ servicing report described in
Section 11.07; and
|
|
4.
|
Any
notice of a purchase of a Mortgage Loan pursuant to Section 2.02,
2.03 or 3.11.
|
(b) All
directions, demands and notices hereunder shall be in writing and shall be
deemed to have been duly given when delivered to (a) in the case of the
Depositor, IndyMac MBS, Inc., 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000,
Attention: Secondary Marketing: Transaction Management;
(b) in the case of the Servicer, IndyMac Bank, F.S.B., 000 Xxxx Xxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxx 00000-0000, Attention: Secondary
Marketing: Transaction Management or such other address as may be
hereafter furnished to the Depositor and the Trustee by the Servicer in writing;
(c) in the case of the Trustee to the Corporate Trust Office, Deutsche Bank
National Trust Company, 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx
00000-0000, Attention: Mortgage Administration IN07F4, Series
2007-FLX4, or such other address as the Trustee may hereafter furnish to the
Depositor or Servicer, (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 , and (e) in the case of the Swap Counterparty and the Corridor
Counterparty, to the address specified in the Swap Contract and in the Corridor
Contract, respectively. Notices to Certificateholders shall be deemed
given when mailed, first class postage prepaid, to their respective addresses
appearing in the Certificate Register.
Section
10.06. Severability
of Provisions.
If
any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no
way
affect the validity or enforceability of the other provisions of this Agreement
or of the Certificates or the rights of the Holders thereof.
Section
10.07. Assignment
Notwithstanding
anything to the contrary contained in this Agreement, except as provided in
Section 6.02, this Agreement may not be assigned by the Servicer without
the prior written consent of the Trustee and Depositor.
Section
10.08. Limitation
on Rights of Certificateholders.
The
death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the trust created by this Agreement, nor entitle such
Certificateholder’s legal representative or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a petition or
winding up of the trust created hereby, or otherwise affect the rights,
obligations and liabilities of the parties to this Agreement or any of
them.
118
No
Certificateholder shall have any right to vote (except as provided in this
Agreement) or in any manner otherwise control the operation and management
of
the Trust Fund, or the obligations of the parties to this Agreement, nor shall
anything herein set forth or contained in the terms of the Certificates be
construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party because of any action taken by the parties
to
this Agreement pursuant to any provision of this Agreement.
No
Certificateholder shall have any right by virtue or by availing itself of any
provisions of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of an Event
of Default and of the continuance thereof, as provided in this Agreement, and
unless the Holders of Certificates evidencing not less than 25% of the Voting
Rights evidenced by the Certificates shall also have made written request to
the
Trustee to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as
it
may require against the costs, expenses, and liabilities to be incurred therein
or thereby, and the Trustee, for 60 days after its receipt of such notice,
request and offer of indemnity shall have neglected or refused to institute
any
such action, suit or proceeding; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself
or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain or
seek
to obtain priority over or preference to any other such Holder or to enforce
any
right under this Agreement, except in the manner herein provided and for the
common benefit of all Certificateholders. For the protection and
enforcement of this Section 10.08, each Certificateholder and the Trustee
shall be entitled to any relief that can be given either at law or in equity.
As
long as any Voting Rights are held by parties other than the Seller, its
Affiliates, or its agents, Voting Rights of Certificates held by the Seller,
its
Affiliates or its agents as the Seller shall certify to the Trustee upon any
such entity obtaining such ownership will be excluded from participating in
such
voting arrangements, and excluded from determining the 25%
threshold.
Section
10.09. Inspection
and Audit Rights.
The
Servicer agrees that, on reasonable prior notice, it will permit any
representative of the Depositor or the Trustee during the Servicer’s normal
business hours, to examine all the books of account, records, reports and other
papers of the Servicer relating to the Mortgage Loans, to make copies and
extracts therefrom, to cause such books to be audited by independent certified
public accountants selected by the Depositor or the Trustee and to discuss
its
affairs, finances and accounts relating to the Mortgage Loans with its officers,
employees and independent public accountants (and by this provision the Servicer
hereby authorizes said accountants to discuss with such representative such
affairs, finances and accounts), all at such reasonable times and as often
as
may be reasonably requested. Any out-of-pocket expense incident to
the exercise by the Depositor or the Trustee of any right under this
Section 10.09 shall be borne by the party requesting such inspection; all
other such expenses shall be borne by the Servicer.
Section
10.10. Certificates
Nonassessable and Fully Paid.
It
is the
intention of the Depositor that Certificateholders shall not be personally
liable for obligations of the Trust Fund, that the interests in the Trust Fund
represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof by the
Trustee pursuant to this Agreement, are and shall be deemed fully
paid.
119
Section
10.11. Official
Record.
The
Seller agrees that this Agreement is and shall remain at all times before the
time at which this Agreement terminates an official record of the Seller as
referred to in Section 13(e) of the Federal Deposit Insurance
Act.
Section
10.12. Protection
of Assets.
(a) Except
for transactions and activities entered into in connection with the
securitization that is the subject of this Agreement, the trust created by
this
Agreement is not authorized and has no power to:
(i) borrow
money or issue debt;
(ii) merge
with another entity, reorganize, liquidate or sell assets;
(iii) engage
in any business or activities.
(b) Each
party to this Agreement agrees that it will not file an involuntary bankruptcy
petition against the Trustee or the Trust Fund or initiate any other form of
insolvency proceeding until after the Certificates have been paid in
full.
Section
10.13. Qualifying
Special Purpose Entity.
Notwithstanding
any contrary provision of this Agreement, the Trust Fund shall not hold any
property or engage in any activity that would disqualify the Trust Fund from
being a qualifying special purpose entity under generally accepted accounting
principles.
120
Article
Eleven
EXCHANGE
ACT
REPORTING
Section
11.01. Filing
Obligations.
The
Servicer, the Trustee and the Seller shall reasonably cooperate with the
Depositor in connection with the satisfaction of the Depositor’s reporting
requirements under the Exchange Act with respect to the Trust
Fund. In addition to the information specified below, if so requested
by the Depositor for the purpose of satisfying its reporting obligation under
the Exchange Act, the Servicer, the Trustee and the Seller shall provide the
Depositor with (a) such information which is available to such Person without
unreasonable effort or expense and within such timeframe as may be reasonably
requested by the Depositor to comply with the Depositor’s reporting obligations
under the Exchange Act and (b) to the extent such Person is a party (and the
Depositor is not a party) to any agreement or amendment required to be filed,
copies of such agreement or amendment in XXXXX-compatible form.
Section
11.02. Form
10-D Filings.
(a) In
accordance with the Exchange Act, unless no reporting obligation under the
Exchange Act exists at such time with respect to the Trust Fund, the Trustee
shall prepare for filing and file within 15 days after each Distribution Date
(subject to permitted extensions under the Exchange Act) with the Commission
with respect to the Trust Fund, a Form 10-D with copies of the Monthly Report
and, to the extent delivered to the Trustee, no later than five calendar days
following the Distribution Date, such other information identified by the
Depositor or the Servicer, in writing, to be filed with the Commission (such
other information, the “Additional Designated
Information”). If the Depositor or Servicer directs
that any Additional Designated Information is to be filed with any Form 10-D,
the Depositor or Servicer, as the case may be, shall specify the Item on Form
10-D to which such information is responsive and, with respect to any Exhibit
to
be filed on Form 10-D, the Exhibit number. Any information to be
filed on Form 10-D shall be delivered to the Trustee in XXXXX-compatible form
or
as otherwise agreed upon by the Trustee and the Depositor or the Servicer,
as
the case may be, at the Depositor’s expense, and any necessary conversion to
XXXXX-compatible format will be at the Depositor’s expense. At the
reasonable request of, and in accordance with the reasonable directions of,
the
Depositor or the Servicer, subject to the two preceding sentences, the Trustee
shall prepare for filing and file an amendment to any Form 10-D previously
filed
with the Commission with respect to the Trust Fund. The Depositor
shall sign the Form 10-D filed on behalf of the Trust Fund.
The
Trustee shall prepare each Form 10-D and, no later than five Business Days
prior
to the date on which such Form 10-D is required to be filed, deliver a copy
of
such Form 10-D to the Depositor for review. No later than the
Business Day following the receipt thereof, the Depositor shall notify the
Trustee of any changes to be made to the Form 10-D. The Trustee shall
make any changes thereto requested by the Depositor and deliver the final Form
10-D to the Depositor for signature no later than three Business Days prior
to
the date on which such Form 10-D must be filed by the Trustee in accordance
with
this Section 11.02. The Depositor shall execute the final Form
10-D and deliver the same to the Trustee via electronic mail
(XXXXX.Xxxxxxxxxxxxx@xx.xxx) or facsimile no later than the Business Day
following receipt of the same (which, unless not received within such time
frame
from the Trustee, shall be no later than two Business Days prior to the date
on
which the Form 10-D is required to be filed), with an original executed hard
copy to follow by overnight courier.
(b) No
later than each Distribution Date, any party responsible for providing
Additional Designated Information shall notify the Depositor and the Trustee
of
any Form 10-D Disclosure Item, together with a description of any such Form
10-D
Disclosure Item in form and substance reasonably acceptable to the
Depositor. In addition to such information as the Servicer and the
Trustee are obligated to provide pursuant to other provisions of this Agreement,
if so requested by the Depositor, each of the Servicer and the Trustee shall
provide such information which is available to the Servicer and the Trustee,
as
applicable, without unreasonable effort or expense regarding the performance
or
servicing of the Mortgage Loans (in the case of the Trustee, based on the
information provided by the Servicer) as is reasonably required to facilitate
preparation of distribution reports in accordance with Item 1121 of Regulation
AB. Such information shall be provided concurrently with the
Remittance Reports in the case of the Servicer and the Monthly Statement in
the
case of the Trustee, commencing with the first such report due not less than
five Business Days following such request.
121
(c) The
Trustee shall not have any responsibility to file any items (other than those
generated by it) that have not been received in a format suitable (or readily
convertible into a format suitable) for electronic filing via the XXXXX system
and shall not have any responsibility to convert any such items to such format
(other than those items generated by it or that are readily convertible to
such
format). The Trustee shall have no liability to the
Certificateholders, the Trust Fund, the Servicer or the Depositor with respect
to any failure to properly prepare or file any of Form 10-D to the extent that
such failure is not the result of any negligence, bad faith or willful
misconduct on its part. The Trustee will not have any duty to verify
the accuracy or sufficiency of any information to be included in any Form 10-D
not provided by it.
(d) The
Trustee shall have no liability with respect to any failure to properly prepare
and file such periodic reports resulting or relating to the Trustee’s inability
or failure to obtain any information not resulting from its own negligence
or
willful misconduct.
Section
11.03. Form
8-K Filings.
The
Servicer shall prepare and file on behalf of the Trust Fund any Form 8-K
required by the Exchange Act. Each Form 8-K must be signed by the
Servicer. Any reporting party identified on Exhibit T shall promptly
notify the Depositor and the Servicer (if the notifying party is not the
Servicer), but in no event later than one (1) Business Day after its occurrence,
of any Reportable Event of which it has actual knowledge. Each Person
shall be deemed to have actual knowledge of any such event to the extent that
it
relates to such Person or any action or failure to act by such
Person.
Section
11.04. Form
10-K Filings.
Prior
to
(x) March 31, 2008 and (y) unless and until a Form 15 Suspension Notice shall
have been filed, March 31st of each year thereafter (or, in either case, such
earlier date as may be required by the Exchange Act), the Trustee shall, subject
to the provisions of this Section 11.04, file a Form 10-K, with respect to
the
Trust Fund. The Trustee shall prepare and file on behalf of the Trust
Fund a Form 10-K, in form and substance as required by the Exchange
Act. The Trustee shall prepare each Form 10-K and, no later than 5
Business Days prior to the date on which such Form 10-K is required to be filed,
deliver a copy of such Form 10-K to the Depositor for review. No
later than the Business Day following the receipt thereof, the Depositor shall
notify the Trustee of any changes to be made to the Form 10-K. The Trustee
shall
make any changes thereto requested by the Depositor and deliver the final Form
10-K to the Depositor for signature no later than three Business Days prior
to
the date on which such Form 10-K must be filed by the Trustee in accordance
with
this Section 11.04. The Depositor shall execute the final Form 10-K
and deliver the same to the Trustee via electronic mail
(XXXXX.Xxxxxxxxxxxxx@xx.xxx) or facsimile no later than Business Day following
receipt of the same (which, unless not received within such time frame from
the
Trustee, shall be no later than two Business Days prior to the date on which
the
From 10-K is required to be filed), with an original executed hard copy to
follow by overnight mail. Such Form 10-K shall include the Assessment of
Compliance, Attestation Report, Annual Compliance Statements and other
documentation provided by the Servicer pursuant to Sections 3.17 and 11.07,
a
certification in the form attached hereto as Exhibit O-1 (the “Depositor
Certification”), which shall be signed by the senior officer of the Depositor in
charge of securitization, and an accountant’s report described under Section
11.07. Each Form 10-K shall also include any Xxxxxxxx-Xxxxx
Certification required to be included therewith, as described in Section
11.05.
122
If
the
Item 1119 Parties listed on Exhibit T have changed since the Closing Date,
no
later than March 1 of each year, the Depositor shall provide each of the
Servicer and the Trustee via electronic mail (XXXXX.Xxxxxxxxxxxxx@xx.xxx) with
an updated Exhibit T setting forth the Item 1119 Parties.
As
to
each item of information required to be included in any Form 10-D, Form 8-K
or
Form 10-K, the Trustee's or Depositor’s obligation to include the information in
the applicable report is subject to receipt from the entity that is indicated
in
Exhibit Q as the responsible party for providing that information, if other
than
the Trustee or the Depositor, as applicable, as and when required as described
above. Each of the Trustee, the Servicer and the Depositor, as
applicable, hereby agree to notify and provide to the Trustee and the Depositor
all information that is required to be included in any Form 10-D, Form 8-K
or
Form 10-K, with respect to which that entity is indicated in Exhibit Q as the
responsible party for providing that information. In the case
of information to be included in the From 10-D, such information
shall be delivered to the Trustee (with a copy to the Depositor) no later than
5
calendar days following each Distribution Date. In the case
of information to be included in the Form 8-K, such information shall
be delivered to the Depositor no later than 2 Business Days following the
occurrence of a reportable event. In the case of information to be
included in the From 10-K, such information, other than the documentation
provided pursuant to Sections 3.17 and 11.07, shall be delivered to the Trustee
no later than (x) March 1, 2008 (with a 15 day cure period) and (y) unless
and
until a Form 15 Suspension Notice shall have been filed, March 1st of each
year
thereafter. The Servicer shall be responsible for determining the
pool concentration applicable to any subservicer or originator at any time,
for
purposes of disclosure as required by Items 1117 and 1119 of Regulation
AB. The Trustee shall provide electronic or paper copies of all Form
10-D, 8-K and 10-K filings free of charge to any Certificateholder upon
request.
The
Trustee shall sign a certification (in the form attached hereto as Exhibit
O-2)
for the benefit of the Depositor and its officers, directors and
Affiliates. The Trustee's certification shall be delivered to the
Depositor by no later than March 18th of each year (or if such day is not a
Business Day, the immediately preceding Business Day) and the Depositor shall
deliver the Depositor Certification to the Trustee for filing no later than
March 20th of each year (or if such day is not a Business Day, the immediately
preceding Business Day).
The
Trustee shall indemnify and hold harmless the Depositor and its officers,
directors and Affiliates from and against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments
and other costs and expenses (incurred by the Depositor in the absence of and
to
the extent of its own negligence, willful misconduct or bad faith) arising
out
of or based upon (i) a breach of the Trustee’s obligations under this Section
11.04 and Section 11.07 (to the extent such breach occurred as a result of
its
own negligence, willful misconduct or bad faith) or (ii) any material
misstatement or omission contained in any information provided by the Trustee
including, without limitation, in the certification provided by the Trustee
in
the form of Exhibit O-2 or the assessment of compliance provided pursuant to
Section 11.07. If the indemnification provided for herein is
unavailable or insufficient to hold harmless the Depositor, then the Trustee
agrees that it shall contribute to the amount paid or payable by the Depositor
as a result of the losses, claims, damages or liabilities of the Depositor
in
such proportion as is appropriate to reflect the relative fault of the Depositor
on the one hand and the Trustee on the other. This indemnification
shall survive the termination of this Agreement or the termination of any party
to this Agreement.
123
The
Servicer shall indemnify and hold harmless the Depositor, the Trustee and their
respective officers, directors and Affiliates from and against any actual
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments and other costs and expenses that such Person
may sustain based upon (i) a breach of the Servicer’s obligations under Sections
3.17, 11.07 or 11.04 or (ii) any material misstatement or omission contained
in
any information provided by the Servicer including, without limitation, in
the
information provided pursuant to Sections 3.17 and 11.07. This
indemnification shall survive the termination of this Agreement or the
termination of any party to this Agreement.
The
Depositor shall indemnify and hold harmless the Servicer, the Trustee and their
respective officers, directors and Affiliates from and against any actual
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments and other costs and expenses that such Person
may sustain based upon (i) a breach of the Depositor’s obligations under this
Section 11.04 or (ii) any material misstatement or omission contained in any
information provided by the Depositor.
The
Trustee will have no duty or liability to verify the accuracy or sufficiency
of
any information not prepared by it included in any Form 10-D, Form 10-K or
Form
8-K. The Trustee shall have no liability with respect to any failure
to properly prepare or file any Form 10-D or Form 10-K resulting from or
relating to the Trustee's inability or failure to receive any information in
a
timely manner from the party responsible for delivery of such
information. The Trustee shall have no liability with respect to any
failure to properly file any Form 10-D or 10-K resulting from or relating to
the
Depositor's failure to timely comply with the provisions of this
section. Nothing herein shall be construed to require the Trustee or
any officer, director or Affiliate thereof to sign any Form 10-D, Form 10-K
or
Form 8-K. Copies of all reports filed by the Trustee under the Exchange Act
shall be sent to the Depositor electronically or at the address set forth in
Section 10.05. Fees and expenses incurred by the Trustee in
connection with this Section 11.04 shall not be reimbursable from the Trust
Fund.
Upon
any
filing with the Commission, the Trustee shall promptly deliver to the Depositor
a copy of any executed report, statement or information.
To
the
extent that, following the Closing Date, the Depositor certifies that reports
and certifications differing from those required under this Section 11.04 are
necessary to comply with the reporting requirements under the Exchange Act,
the
parties hereto hereby agree that each will reasonably cooperate to amend the
provisions of this Section 11.04 in order to comply with such amended reporting
requirements and such amendment of this Section 11.04. Any such
amendment may result in the reduction of the reports executed by and filed
on
behalf of the Depositor under the Exchange Act. Notwithstanding the
foregoing, the Trustee shall not be obligated to enter into any amendment
pursuant to this Section that adversely affects its obligations and immunities
under this Agreement.
Each
of
the parties acknowledges and agrees that the purpose of Sections 3.17, 11.07
and
this Section 11.04 of this Agreement is to facilitate compliance by the
Depositor with the provisions of Regulation AB. Therefore, each of
the parties agree that (a) the obligations of the parties hereunder shall be
interpreted in such a manner as to accomplish that purpose, (b) the parties’
obligations hereunder will be supplemented and modified as necessary to be
consistent with any such amendments, interpretive advice or guidance in respect
of the requirements of Regulation AB, (c) the parties shall comply with
reasonable requests made by the Depositor for delivery of additional or
different information as the Depositor may determine in good faith is necessary
to comply with the provisions of Regulation AB, and (d) no amendment of this
Agreement shall be required to effect any such changes in the parties’
obligations as are necessary to accommodate evolving interpretations of the
provisions of Regulation AB.
124
Section
11.05. Xxxxxxxx-Xxxxx
Certification.
Each
Form
10-K shall include a certification (the “Xxxxxxxx-Xxxxx
Certification”) required by Rules 13a-14(d) and 15d-14(d) under
the Exchange Act (pursuant to Section 302 of the Xxxxxxxx-Xxxxx Act of 2002
and
the rules and regulations of the Commission promulgated thereunder (including
any interpretations thereof by the Commission’s staff)). No later
than March 15 of each year, beginning in 2008, the Servicer and the Trustee
shall (unless such person is the Certifying Person), and the Servicer shall
cause each Reporting Subcontractor and the Trustee shall cause each Reporting
Subcontractor to, provide to the Person who signs the Xxxxxxxx-Xxxxx
Certification (the “Certifying Person”) a
certification (each, a “Performance Certification”),
in the form attached hereto as Exhibit R on which the Certifying Person, the
entity for which the Certifying Person acts as an officer, and such entity’s
officers, directors and Affiliates (collectively with the Certifying Person,
“Certification Parties”) can reasonably
rely. The senior officer in charge of the servicing function of the
Servicer shall serve as the Certifying Person on behalf of the Trust
Fund. Neither the Servicer nor the Depositor will request delivery of
a certification under this clause unless the Trustee is required under the
Exchange Act to file an annual report on Form 10-K with respect to the Trust
Fund. In the event that prior to the filing date of the Form 10-K in
March of each year, the Servicer or the Depositor has actual knowledge of
information material to the Xxxxxxxx-Xxxxx Certification, the Servicer or the
Depositor, as the case may be, shall promptly notify the Servicer and the
Trustee. The respective parties hereto agree to cooperate with all
reasonable requests made by any Certifying Person or Certification Party in
connection with such Person’s attempt to conduct any due diligence that such
Person reasonably believes to be appropriate in order to allow it to deliver
any
Xxxxxxxx-Xxxxx Certification or portion thereof with respect to the Trust
Fund.
Section
11.06. Form
15 Filing.
Prior
to
January 30 of the first year in which the Depositor is able to do so under
applicable law, the Trustee on behalf of the Depositor shall file a Form 15
relating to the automatic suspension of reporting in respect of the Trust Fund
under the Exchange Act.
Section
11.07. Report
on Assessment of Compliance and Attestation.
(a) On
or before March 15 of each calendar year, commencing in 2008, unless no
reporting obligation under the Exchange Act exists at such time with respect
to
the Trust Fund:
(i) The
Servicer shall deliver to the Trustee and the Servicer (with a copy to the
Depositor) a report (in form and substance reasonably satisfactory to the
Trustee) regarding the Servicer’s or the Trustee’s, as applicable, assessment of
compliance with the Servicing Criteria during the immediately preceding calendar
year, as required under Rules 13a-18 and 15d-18 of the Exchange Act and Item
1122 of Regulation AB. Such report shall be signed by an authorized
officer of such Person and shall address each of the Servicing Criteria
applicable to each party specified on a certification delivered to the Trustee
substantially in the form of Exhibit S. To the extent any of the
Servicing Criteria are not applicable to such Person, with respect to
asset-backed securities transactions taken as a whole involving such Person
and
that are backed by the same asset type backing the Certificates, such report
shall include such a statement to that effect. The Trustee and the
Servicer, and each of their respective officers and directors shall be entitled
to rely upon each such servicing criteria assessment.
(ii) The
Servicer shall deliver to the Trustee, and the Trustee shall provide on its
own
behalf, a report of a registered public accounting firm reasonably acceptable
to
the Trustee that attests to, and reports on, the assessment of compliance made
by Servicer or the Trustee, as applicable, and delivered pursuant to the
preceding paragraphs. Such attestation shall be in accordance with
Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act and
the
Exchange Act, including, without limitation that in the event that an overall
opinion cannot be expressed, such registered public accounting firm shall state
in such report why it was unable to express such an opinion. Such
report must be available for general use and not contain restricted use
language. To the extent any of the Servicing Criteria are not
applicable to such Person, with respect to asset-backed securities transactions
taken as a whole involving such Person and that are backed by the same asset
type backing the Certificates, such report shall include such a statement to
that effect.
125
(iii) The
Servicer shall cause each Reporting Subcontractor to deliver to the Trustee
(with a copy to the Depositor) an assessment of compliance and accountant’s
attestation as and when provided in paragraphs (a) and (b) of this Section
11.07.
(iv) The
Trustee shall cause each Reporting Subcontractor to deliver to the Trustee
and
the Servicer (with a copy to the Depositor) an assessment of compliance and
accountant’s attestation as and when provided in paragraphs (a) and (b) of this
Section.
(v) The
Servicer shall execute (and the Servicer shall cause each Reporting
Subcontractor to execute) a reliance certificate to enable the Certification
Parties to rely upon each (A) annual compliance statement provided pursuant
to
Section 3.17, (B) annual report on assessments of compliance with servicing
criteria provided pursuant to this Section 11.07 and (C) accountant’s report
provided pursuant to this Section 11.07 and shall include a certification that
each such annual compliance statement or report discloses any deficiencies
or
defaults described to the registered public accountants of such Person to enable
such accountants to render the certificates provided for in this Section
11.07.
(vi) The
Trustee shall execute (and the Trustee shall cause each Reporting Subcontractor
to execute) a reliance certificate to enable the Certification Parties to rely
upon each (A) annual report on assessments of compliance with servicing criteria
provided pursuant to this Section 11.07 and (C) accountant’s report provided
pursuant to this Section 11.07 and shall include a certification that each
such
report discloses any deficiencies or defaults described to the registered public
accountants of such Person to enable such accountants to render the certificates
provided for in this Section 11.07.
(b) In
the event the Servicer, the Trustee or Reporting Subcontractor is terminated
or
resigns during the term of this Agreement, such Person shall provide documents
and information required by this Section 11.07 with respect to the period of
time it was subject to this Agreement or provided services with respect to
the
Trust Fund, the Certificates or the Mortgage Loans.
(c) An
assessment of compliance provided by a Subcontractor pursuant to Section
11.07(a)(iii) or (iv) need not address any elements of the Servicing Criteria
other than those specified by the Servicer or the Trustee, as applicable,
pursuant to Section 11.07(a)(i).
Section
11.08. Use
of Subcontractors.
(a) [Reserved].
(b) It
shall not be necessary for the Servicer or the Trustee to seek the consent
of
the Depositor or any other party hereto to the utilization of any
Subcontractor. The Servicer or the Trustee, as applicable, shall
promptly upon request provide to the Trustee and the Depositor (or any designee
of the Depositor, such as the Servicer or administrator) a written description
(in form and substance satisfactory to the Depositor) of the role and function
of each Subcontractor utilized by such Person, specifying (i) the identity
of
each such Subcontractor, (ii) which (if any) of such Subcontractors are
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, and (iii) which elements of the Servicing Criteria will be
addressed in assessments of compliance provided by each Subcontractor identified
pursuant to clause (ii) of this paragraph.
126
As
a
condition to the utilization of any Subcontractor determined to be a Reporting
Subcontractor, the Servicer or the Trustee, as applicable, shall cause any
such
Subcontractor used by such Person for the benefit of the Depositor to comply
with the provisions of Sections 11.07 and 11.09 of this Agreement to the same
extent as if such Subcontractor were the Servicer (except with
respect to the Servicer’s duties with respect to preparing and filing any
Exchange Act Reports or as the Certifying Person) or the Trustee, as
applicable. The Servicer or the Trustee, as applicable, shall be
responsible for obtaining from each Subcontractor and delivering to the Trustee
and the Servicer, any assessment of compliance and attestation required to
be
delivered by such Subcontractor under Section 11.05 and Section 11.07, in each
case as and when required to be delivered.
Section
11.09. Amendments.
In
the
event the parties to this Agreement desire to further clarify or amend any
provision of this Article 11, this Agreement shall be amended to reflect the
new
agreement between the parties covering matters in this Article 11 pursuant
to
Section 10.01, which amendment shall not require any Opinion of Counsel or
Rating Agency confirmations or the consent of any
Certificateholder.
If,
during the period that the Depositor is required to file Exchange Act Reports
with respect to the Trust Fund, the Servicer is no longer an Affiliate of the
Depositor, the Depositor shall assume the obligations and responsibilities
of
the Servicer in this Article 11 with respect to the preparation and filing
of
the Exchange Act Reports and/or acting as the Certifying Person, if the
Depositor has received indemnity from such successor Servicer satisfactory
to
the Depositor, and such Servicer has agreed to provide a Xxxxxxxx-Xxxxx
Certification to the Depositor substantially in the form of Exhibit
U.
* * * * * *
127
IN
WITNESS WHEREOF, the Depositor, the Trustee, the Supplemental Interest Trustee,
the Swap Trustee and the Seller and Servicer have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of
the
day and year first above written.
INDYMAC
MBS, INC.
|
||||
as Depositor | ||||
|
By:
|
/s/ Xxxx Xxxxxxxx | ||
Name: Xxxx
Xxxxxxxx
|
||||
Title:
Vice President
|
||||
|
|
DEUTSCHE
BANK
NATIONAL
TRUST
COMPANY,
|
||||
as
Trustee, Swap Trustee and Supplemental Interest Trustee
|
||||
|
By:
|
/s/ Xxxxxx Xxxxx | ||
Name: Xxxxxx
Xxxxx
|
||||
Title:
Associate
|
||||
|
|
|
By:
|
/s/ Xxxxxxxx Xxxxxxxxxxx | ||
Name: Xxxxxxxx
Xxxxxxxxxxx
|
||||
Title:
Associate
|
||||
|
|
INDYMAC BANK,
F.S.B.
|
||||
as Seller and Servicer | ||||
|
By:
|
/s/ Xxxx Xxxxxxxx | ||
Name: Xxxx
Xxxxxxxx
|
||||
Title:
Vice President
|
||||
|
|
STATE
OF CALIFORNIA
|
)
|
: ss.:
|
|
COUNTY
OF Los Angeles
|
)
|
On
this
30th day of May, 2007, before me, personally appeared Xxxx Xxxxxxxx, known
to me
to be a Vice President of IndyMac MBS, Inc., one of the entities that executed
the within instrument, and also known to me to be the person who executed it
on
behalf of said entity, and acknowledged to me that such entity executed the
within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
By:
|
/s/ Xxxx Xxxxxxxxx | |
Notary Public | |||
[NOTARIAL SEAL] |
1
STATE
OF CALIFORNIA
|
)
|
: ss.:
|
|
COUNTY
OF Orange
|
)
|
On
this
29th day of May, 2007, before me, personally appeared Xxxxxx Xxxxx and Xxxxxxxx
Xxxxxxxxxxx, known to me to be an Associate and an Associate, respectively,
of
Deutsche Bank National Trust Company, one of the entities that executed the
within instrument, and also known to me to be the person who executed it on
behalf of said entity, and acknowledged to me that such entity executed the
within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
By:
|
/s/ Xxxxxxx Xxxx | |
Notary Public | |||
[NOTARIAL SEAL] |
2
STATE
OF CALIFORNIA
|
)
|
: ss.:
|
|
COUNTY
OF Los Angeles
|
)
|
On
this
30th day of May, 2007, before me, personally appeared Xxxx Xxxxxxxx, known
to me
to be a Vice President of IndyMac Bank, F.S.B., one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said entity, and acknowledged to me that such entity
executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
By:
|
/s/ Xxxx Xxxxxxxxx | |
Notary Public | |||
[NOTARIAL SEAL] |
3
Schedule
I
MORTGAGE
LOAN
SCHEDULE
[DELIVERED
AT CLOSING
TO TRUSTEE]
S-I-1
Schedule
II
INDYMAC
MBS, INC.
MORTGAGE
PASS-THROUGH
CERTIFICATES,
SERIES
2007-FLX4
Representations
and Warranties of the Seller/Servicer
Indy
Mac
Bank, F.S.B. (“IndyMac”) hereby makes the
representations and warranties set forth in this Schedule II to the Depositor
and the Trustee, as of the Closing Date. Capitalized terms used but
not otherwise defined in this Schedule II shall have the meanings assigned
thereto in the Pooling and Servicing Agreement (the “Pooling and
Servicing Agreement”) relating to the above-referenced Series,
among IndyMac, as seller and Servicer, IndyMac MBS, Inc., as depositor, and
Deutsche Bank National Trust Company, as trustee, swap trustee and supplemental
interest trustee.
(1) IndyMac
is duly organized as a federally insured savings bank and is validly existing
and in good standing under the laws of the United States of America and is
duly
authorized and qualified to transact any business contemplated by the Pooling
and Servicing Agreement to be conducted by IndyMac in any state in which a
Mortgaged Property is located or is otherwise not required under applicable
law
to effect such qualification and, in any event, is in compliance with the doing
business laws of any such state, to the extent necessary to ensure its ability
to enforce each Mortgage Loan, to service the Mortgage Loans in accordance
with
the Pooling and Servicing Agreement and to perform any of its other obligations
under the Pooling and Servicing Agreement in accordance with the terms
thereof.
(2) IndyMac
has the full corporate power and authority to sell and service each Mortgage
Loan, and to execute, deliver and perform, and to enter into and consummate
the
transactions contemplated by the Pooling and Servicing Agreement and has duly
authorized by all necessary corporate action on the part of IndyMac the
execution, delivery and performance of the Pooling and Servicing Agreement;
and
the Pooling and Servicing Agreement, assuming the due authorization, execution
and delivery thereof by the other parties thereto, constitutes a legal, valid
and binding obligation of IndyMac, enforceable against IndyMac in accordance
with its terms, except that (a) the enforceability thereof may be limited by
bankruptcy, insolvency, moratorium, receivership and other similar laws relating
to creditors’ rights generally and (b) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought.
(3) The
execution and delivery of the Pooling and Servicing Agreement by IndyMac, the
sale and servicing of the Mortgage Loans by IndyMac under the Pooling and
Servicing Agreement, the consummation of any other of the transactions
contemplated by the Pooling and Servicing Agreement, and the fulfillment of
or
compliance with the terms thereof are in the ordinary course of business of
IndyMac and will not (A) result in a material breach of any term or provision
of
the charter or by-laws of IndyMac or (B) materially conflict with, result in
a
material breach, violation or acceleration of, or result in a material default
under, any other material agreement or instrument to which IndyMac is a party
or
by which it may be bound, or (C) constitute a material violation of any statute,
order or regulation applicable to IndyMac of any court, regulatory body,
administrative agency or governmental body having jurisdiction over IndyMac
(including the OTS, the Federal Deposit Insurance Corporation or any other
governmental entity having regulatory authority over IndyMac); and IndyMac
is
not in breach or violation of any material indenture or other material agreement
or instrument, or in violation of any statute, order or regulation of any court,
regulatory body, administrative agency or governmental body having jurisdiction
over it (including the OTS, the Federal Deposit Insurance Corporation or any
other governmental entity having regulatory authority over IndyMac) which breach
or violation may materially impair IndyMac’s ability to perform or meet any of
its obligations under the Pooling and Servicing Agreement.
S-II-1
(4) IndyMac
is an approved servicer of conventional mortgage loans for FNMA or FHLMC or
is a
mortgagee approved by the Secretary of Housing and Urban Development pursuant
to
Sections 203 and 211 of the National Housing Act.
(5) No
litigation is pending or, to the best of IndyMac’s knowledge, threatened against
IndyMac that would prohibit the execution or delivery of, or performance under,
the Pooling and Servicing Agreement by IndyMac.
(6) IndyMac
is a member of MERS in good standing, and will comply in all material respects
with the rules and procedures of MERS in connection with the servicing of the
MERS Mortgage Loans for as long as such Mortgage Loans are registered with
MERS.
S-II-2
Schedule
III
INDYMAC
MBS, INC.
MORTGAGE
PASS-THROUGH
CERTIFICATES,
SERIES
2007-FLX4
Representations
and Warranties as to the Mortgage Loans
IndyMac
Bank, F.S.B. (“IndyMac”) hereby makes the
representations and warranties set forth in this Schedule III to the Depositor
and the Trustee, as of the Closing Date or if so specified in this Schedule
III,
as of the Cut-off Date with respect to each Mortgage
Loan. Capitalized terms used but not otherwise defined in this
Schedule III shall have the meanings assigned to them in the Pooling and
Servicing Agreement (the “Pooling and Servicing
Agreement”) relating to the above-referenced Series, among
IndyMac, as seller and Servicer, IndyMac MBS, Inc., as depositor, and Deutsche
Bank National Trust Company, as trustee, swap trustee and supplemental interest
trustee.
(1) The
information set forth on Schedule I to the Pooling and Servicing Agreement
with
respect to each Mortgage Loan is true and correct in all material respects
as of
the Closing Date.
(2) All
regularly scheduled monthly payments due with respect to each Mortgage Loan
up
to and including the Due Date before the Cut-off Date have been made; and as
of
the Cut-off Date, no Mortgage Loan had a regularly scheduled monthly payment
that was 60 or more days Delinquent during the twelve months before the Cut-off
Date.
(3) With
respect to any Mortgage Loan that is not a Cooperative Loan, each Mortgage
is a
valid and enforceable first lien on the Mortgaged Property subject only to
(a)
the lien of nondelinquent current real property taxes and assessments and liens
or interests arising under or as a result of any federal, state or local law,
regulation or ordinance relating to hazardous wastes or hazardous substances
and, if the related Mortgaged Property is a unit in a condominium project or
planned unit development, any lien for common charges permitted by statute
or
homeowner association fees, (b) covenants, conditions and restrictions, rights
of way, easements and other matters of public record as of the date of recording
of such Mortgage, such exceptions appearing of record being generally acceptable
to mortgage lending institutions in the area wherein the related Mortgaged
Property is located or specifically reflected in the appraisal made in
connection with the origination of the related Mortgage Loan, and (c) other
matters to which like properties are commonly subject which do not materially
interfere with the benefits of the security intended to be provided by such
Mortgage.
(4) Immediately
before the assignment of the Mortgage Loans to the Depositor, the Seller had
good title to, and was the sole owner of, each Mortgage Loan free and clear
of
any pledge, lien, encumbrance or security interest and had full right and
authority, subject to no interest or participation of, or agreement with, any
other party, to sell and assign the same pursuant to the Pooling and Servicing
Agreement.
(5) As
of the date of origination of each Mortgage Loan, there was no delinquent tax
or
assessment lien against the related Mortgaged Property.
(6) There
is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage,
including the obligation of the Mortgagor to pay the unpaid principal of or
interest on such Mortgage Note.
S-III-1
(7) There
are no mechanics’ liens or claims for work, labor or material affecting any
Mortgaged Property which are or may be a lien prior to or equal with, the lien
of such Mortgage, except those which are insured against by the title insurance
policy referred to in item (11) below.
(8) No
Mortgaged Property has been materially damaged by water, fire, earthquake,
windstorm, flood, tornado or similar casualty (excluding casualty from the
presence of hazardous wastes or hazardous substances, as to which the Seller
makes no representation) so as to affect adversely the value of the related
Mortgaged Property as security for the Mortgage Loan.
(9) Each
Mortgage Loan at origination complied in all material respects with applicable
local, state and federal laws and regulations, including usury, equal credit
opportunity, real estate settlement procedures, truth-in-lending, and disclosure
laws, or any noncompliance does not have a material adverse effect on the value
of the related Mortgage Loan.
(10) The
Seller has not modified the Mortgage in any material respect (except that a
Mortgage Loan may have been modified by a written instrument which has been
recorded or submitted for recordation, if necessary, to protect the interests
of
the Certificateholders and which has been delivered to the Trustee); satisfied,
cancelled or subordinated such Mortgage in whole or in part; released the
related Mortgaged Property in whole or in part from the lien of such Mortgage;
or executed any instrument of release, cancellation, modification or
satisfaction with respect thereto.
(11) A
lender’s policy of title insurance together with a condominium endorsement and
extended coverage endorsement, if applicable, and negative amortization
endorsement in an amount at least equal to the Cut-off Date Principal Balance
of
each such Mortgage Loan or a commitment (binder) to issue the same was effective
on the date of the origination of each Mortgage Loan and each such policy is
valid and remains in full force and effect.
(12) Each
Mortgage Loan was originated (within the meaning of Section 3(a)(41) of the
Securities Exchange Act of 1934, as amended) by an entity that satisfied at
the
time of origination the requirements of Section 3(a)(41) of the Securities
Exchange Act of 1934, as amended.
(13) All
of the improvements which were included for the purpose of determining the
Appraised Value of the Mortgaged Property lie wholly within the boundaries
and
building restriction lines of such property, and no improvements on adjoining
properties encroach upon the Mortgaged Property, unless such failure to be
wholly within such boundaries and restriction lines or such encroachment, as
the
case may be, does not have a material effect on the value of the Mortgaged
Property.
(14) As
of the date of origination of each Mortgage Loan, no improvement located on
or
being part of the Mortgaged Property is in violation of any applicable zoning
law or regulation unless such violation would not have a material adverse effect
on the value of the related Mortgaged Property. All inspections,
licenses and certificates required to be made or issued with respect to all
occupied portions of the Mortgaged Property and, with respect to the use and
occupancy of the same, including certificates of occupancy and fire underwriting
certificates, have been made or obtained from the appropriate authorities,
unless the lack thereof would not have a material adverse effect on the value
of
the Mortgaged Property.
S-III-2
(15) The
Mortgage Note and the related Mortgage are genuine, and each is the legal,
valid
and binding obligation of the maker thereof, enforceable in accordance with
its
terms and under applicable law.
(16) The
proceeds of the Mortgage Loan have been fully disbursed and there is no
requirement for future advances thereunder.
(17) The
related Mortgage contains customary and enforceable provisions which render
the
rights and remedies of the holder thereof adequate for the realization against
the Mortgaged Property of the benefits of the security, including, (i) in the
case of a Mortgage designated as a deed of trust, by trustee’s sale, and (ii)
otherwise by judicial foreclosure.
(18) With
respect to each Mortgage constituting a deed of trust, a trustee, duly qualified
under applicable law to serve as such, has been properly designated and
currently so serves and is named in such Mortgage, and no fees or expenses
are
or will become payable by the Certificateholders to the trustee under the deed
of trust, except in connection with a trustee’s sale after default by the
Mortgagor.
(19) At
the 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 Servicer maintains a blanket policy pursuant to the second
paragraph of Section 3.10(a) of the Pooling and Servicing
Agreement.
(20) If
at the time of origination of each Mortgage Loan, the related Mortgaged Property
was in an area then identified in the Federal Register by the Federal Emergency
Management Agency as having special flood hazards, a flood insurance policy
in a
form meeting the then-current requirements of the Flood Insurance Administration
is in effect with respect to the Mortgaged Property with a generally acceptable
carrier.
(21) There
is no proceeding pending or threatened for the total or partial condemnation
of
any Mortgaged Property, nor is such a proceeding currently
occurring.
(22) There
is no material event which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a material non-monetary
default, breach, violation or event of acceleration under the Mortgage or the
related Mortgage Note; and the Seller has not waived any material non-monetary
default, breach, violation or event of acceleration.
(23) Each
Mortgage File contains an appraisal of the related Mortgaged Property in a
form
acceptable to FNMA or FHLMC. Appraisal Form 1004 or Form 2055 has
been obtained.
(24) Any
leasehold estate securing a Mortgage Loan has a stated term of not less than
five years in excess of the term of the related Mortgage Loan.
S-III-3
(25) Each
Mortgage Loan was selected from among the outstanding one- to four-family
mortgage loans in the Seller’s portfolio at the Closing Date as to which the
representations and warranties made with respect to the Mortgage Loans set
forth
in this Schedule III can be made. No such selection was made in a
manner intended to adversely affect the interests of the
Certificateholders.
(26) Except
for one Mortgage Loan in Loan Group 1, none of the Mortgage Loans are
Cooperative Loans.
(27) [Reserved].
(28) None
of the Mortgage Loans is a “high cost” loan, “covered” loan (excluding home
loans defined as “covered home loans” in the New Jersey Home Ownership Security
Act of 2002 that were originated between November 26, 2003 and July 7, 2004),
“high risk home” or “predatory” loan or any other similarly designated loan as
defined under any state, local or federal law, as defined by
applicable predatory and abusive lending laws.
(29) Each
Mortgage Loan at the time it was made complied in all material respects with
applicable local, state, and federal laws, including, but not limited to, all
applicable predatory and abusive lending laws.
(30) [Reserved].
(31) No
proceeds from any Mortgage Loan underlying the Certificates were used to finance
single-premium credit insurance policies.
(32) None
of the Mortgage Notes related to the Mortgage Loans impose a Prepayment Charge
on the related Mortgage Loan for a term in excess of three years from the
origination of the Mortgage Loan.
(33) [Reserved].
(34) No
Mortgage Loan is subject to the requirements of the Home Ownership and Equity
Protection Act of 1994.
(35) No
Mortgage Loan is a “High-Cost Home Loan” as defined in any of the following
statutes: the Georgia Fair Lending Act, as amended (the
“Georgia Act”), the New York Banking Law 6-1, the
Arkansas Home Loan Protection Act effective July 16, 2003 (Act 1340 of 2003),
the Kentucky high-cost home loan statute effective June 24, 2003 (Ky. Rev.
Stat.
Section 360.100), the New Jersey Home Ownership Act effective November 27,
2003 (N.J.S.A. 46:10B-22 et seq.), or the New Mexico Home Loan Protection Act
effective January 1, 2004 (N.M. Stat. Xxx §§ 58-21A-1 et seq.). With
respect to any Mortgage Loan subject to the Georgia Act and secured by owner
occupied real property or an owner occupied manufactured home located in the
state of Georgia and originated (or modified) on or after October 1, 2002
through and including March 7, 2003, such Mortgage Loan was originated by
IndyMac. No Mortgage Loan is a “High-Risk Home Loan” as defined in
the Illinois High-Risk Home Loan Act effective January 1, 2004 (815 Ill. Comp.
Stat. 137/1 et seq.). No Mortgage Loan is a “High-Cost Home Mortgage
Loan” as defined in Massachusetts Predatory Home Loan Practices Act, effective
November 6, 2004 (Mass. Xxx. Laws Ch. 183C). None of the Mortgage
Loans that are secured by property located in the State of Illinois are in
violation of the provisions of the Illinois Interest Act (815 Ill. Comp. Stat.
205/1 et. seq.).
S-III-4
(36) Each
Mortgage Loan has been underwritten and serviced substantially in accordance
with the Seller’s guidelines, subject to such variances as are reflected on the
Mortgage Loan Schedule or that the Seller has approved.
(37) No
Mortgage Loan is a High Cost Loan or Covered Loan, as applicable (as such terms
are defined in the then-current version of Standard & Poor's LEVELS®
Glossary, which is now Version 5.7, Appendix E) and no Mortgage Loan originated
on or after Oct. 1, 2002 through March 6, 2003 is governed by the Georgia Fair
Lending Act.
(38) The
Pooling and Servicing Agreement creates a valid and continuing “security
interest” (as defined in Section 1-201(37) of the UCC) in each Mortgage
Note in favor of the Trustee, which security interest is prior to all other
liens and is enforceable as such against creditors of and purchasers from the
Depositor. Each Mortgage Note constitutes “promissory notes” (as defined in
Section 9-102(a)(65) of the UCC). Immediately before the assignment of each
Mortgage Note to the Trustee, the Depositor had good and marketable title to
such Mortgage Note free and clear of any lien, claim, encumbrance of any Person.
All original executed copies of each Mortgage Note have been or shall be
delivered to the Trustee within five Business Days following the Closing Date.
Other than the security interest granted to the Trustee, the Depositor has
not
pledged, assigned, sold, granted a security interest in, or otherwise conveyed
any Mortgage Note. The Depositor has not authorized the filing of and is not
aware of any financing statements against the Depositor that include a
description of any of the Mortgage Notes. The Depositor is not aware of any
judgment or tax liens filed against the Depositor. None of the
Mortgage Notes has any marks or notations indicating that they have been
pledged, assigned or otherwise conveyed to any Person other than the
Trustee.
(39) To
the best of the Seller’s knowledge, there was no fraud involved in the
origination of any Mortgage Loan by the mortgagee or by the Mortgagor, any
appraiser or any other party involved in the origination of the Mortgage
Loan.
(40) Each
Loan is a “qualified mortgage” under Section 860G(a)(3) of the
Code.
(41)
With
respect to any Mortgage Loan that contains a provision permitting imposition
of
a Prepayment Charge upon a prepayment prior to maturity: (i) prior to
the Mortgage Loan’s origination (only with respect to Mortgage Loans secured by
the borrower’s principal residence), the borrower agreed to such Prepayment
Charge in exchange for a monetary benefit, including but not limited to an
interest rate or fee reduction, (ii) prior to the Mortgage Loan’s origination
(only with respect to Mortgage Loans secured by the borrower’s principal
residence), the Mortgagor was offered the option of obtaining a mortgage loan
that did not require payment of such a Prepayment Charge, (iii) the Prepayment
Charge is disclosed to the borrower in the loan documents pursuant to applicable
state and federal law and (iv) notwithstanding any state or federal law to
the
contrary, the Servicer shall not impose such Prepayment Charge in any instance
when the Mortgage Loan is accelerated or paid off in connection with the workout
of a delinquent mortgage or due to the Mortgagor’s default.
(42) The
methodology used in underwriting the extension of credit for each Mortgage
Loan
employs objective mathematical principles that relate the borrower’s income,
assets and liabilities to the proposed payment and such underwriting methodology
does not rely on the extent of the borrower’s equity in the collateral as the
principal determining factor in approving such credit extension. The
methodology employed related objective criteria such as the borrower’s income,
assets, and liabilities to the proposed mortgage payment and, based on such
methodology, the Seller made a reasonable determination that at the time of
origination the borrower had the ability to make timely payments on the Mortgage
Loan.
S-III-5
(43) No
Mortgagor of a Mortgage Loan that is secured by the Mortgagor’s principal
residence was charged “points and fees” in an amount greater than (a) $1,000 or
(b) 5% of the principal amount of such Mortgage Loan, whichever is
greater. For purposes of this representation, “points and fees” (x)
include origination, underwriting, broker and finder’s fees and charges that the
lender imposed as a condition of making the mortgage loan, whether they are
paid
to the lender or a third party; and (y) exclude bona fide discount points,
fees
paid for actual services rendered in connection with the origination of the
mortgage (such as attorneys’ fees, notaries fees and fees paid for property
appraisals, credit reports, surveys, title examinations and extracts, flood
and
tax certifications, and home inspections); the cost of mortgage insurance or
credit-risk price adjustments; the costs of title, hazard, and flood insurance
policies; state and local transfer taxes or fees; escrow deposits for the future
payment of taxes and insurance premiums; and other miscellaneous fees and
charges that, in total, do not exceed 0.25% of the loan amount.
(44) The
Mortgage Loans are exclusively secured by single-family (1-4 unit) residential
housing. None of the Mortgage Loans may be on multifamily,
commercial, industrial, agricultural or undeveloped property, or on any property
located anywhere except the continental United States, Alaska, Hawaii, Puerto
Rico, the Virgin Islands and Guam.
(45) None
of the Mortgage Loans are on a condominium unit that is part of a condominium
development that operates as, or holds itself out to be, a condominium hotel
(“condotel”). None of the Mortgage Loans are secured by condotel
units, regardless of whether the unit itself is being used as a condotel
unit.
S-III-6
Schedule
IV
INDYMAC
MBS, INC.
MORTGAGE
PASS-THROUGH
CERTIFICATES,
SERIES
2007-FLX4
Form
of Monthly Report
[on
file
with the Trustee]
S-IV-1
EXHIBIT
A
[FORM
OF
SENIOR CERTIFICATE]
[UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.]
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
SO
LONG
AS THE SWAP CONTRACT OR THE CORRIDOR CONTRACT IS IN EFFECT, NO TRANSFER OF
THIS
CERTIFICATE SHALL BE MADE UNLESS THE TRUSTEE SHALL HAVE RECEIVED A
REPRESENTATION LETTER FROM THE TRANSFEREE OF THIS CERTIFICATE TO THE EFFECT
THAT
EITHER (I) SUCH TRANSFEREE IS NEITHER AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT WHICH IS SUBJECT TO SECTION 406 OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, AND/OR SECTION 4975 OF
THE
CODE OR ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE SUCH PLAN’S OR ARRANGEMENT’S
ASSETS BY REASON OF THEIR INVESTMENT IN THE ENTITY (A “PLAN”) NOR A PERSON
ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO EFFECT
SUCH TRANSFER OR (II) THE ACQUISITION AND HOLDING OF THIS CERTIFICATE ARE
ELIGIBLE FOR EXEMPTIVE RELIEF UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
(“PTCE”) 00-00, XXXX 00-0, XXXX 00-00, XXXX 00-00, XXXX 96-23 OR THE SERVICE
PROVIDER EXEMPTION PROVIDED UNDER SECTION 408(B)(17) OF ERISA AND SECTION
4975(D)(20) OF THE CODE. ANY PURPORTED TRANSFER OF THIS CERTIFICATE
PRIOR TO THE TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST TO OR ON BEHALF
OF A
PLAN WITHOUT THE DELIVERY TO THE TRUSTEE OF A REPRESENTATION LETTER AS DESCRIBED
ABOVE SHALL BE VOID AND OF NO EFFECT. IF THIS CERTIFICATE IS A
BOOK-ENTRY CERTIFICATE, THE TRANSFEREE WILL BE DEEMED TO HAVE MADE A
REPRESENTATION AS PROVIDED IN CLAUSE (I) OR (II) OF THIS PARAGRAPH, AS
APPLICABLE.
A-1
Certificate
No.
|
:
|
|
Cut-off Date
|
:
|
|
First
Distribution Date
|
:
|
|
Initial
Certificate Balance of
this
Certificate
(“Denomination”)
|
:
|
$
|
Initial
Certificate Balances of
all
Certificates of this Class
|
:
|
$
|
CUSIP
|
:
|
|
Interest
Rate
|
:
|
%
|
Maturity
Date
|
:
|
INDYMAC
MBS, INC.
IndyMac
INDX Mortgage Loan Trust 200_-_
Mortgage
Pass-Through Certificates, Series 200_-_
Class
[__]
evidencing
a percentage interest in the distributions allocable to the Certificates of
the
above-referenced Class with respect to a Trust Fund consisting primarily of
a
pool of conventional mortgage loans (the “Mortgage Loans”) secured by first
liens on one- to four-family residential properties.
IndyMac
MBS, Inc., as Depositor
Principal
in respect of this Certificate is distributable monthly as set forth herein
or
in the Agreement (defined below). Accordingly, the Certificate
Balance at any time may be less than the Certificate Balance as set forth
herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Seller, the Servicer
or
the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or
instrumentality.
This
certifies that
is the registered owner of the Percentage Interest evidenced by this Certificate
(obtained by dividing the denomination of this Certificate by the aggregate
Initial Certificate Balances of all Certificates of the Class to which this
Certificate belongs) in certain monthly distributions with respect to a Trust
Fund consisting primarily of the Mortgage Loans deposited by IndyMac MBS, Inc.
(the “Depositor”). The Trust Fund was created pursuant to a Pooling
and Servicing Agreement dated as of the Cut-off Date specified above (the
“Agreement”) among the Depositor, IndyMac Bank, F.S.B., as seller (in such
capacity, the “Seller”) and as servicer (in such capacity, the “Servicer”), and
Deutsche Bank National Trust Company, as trustee (the “Trustee”), swap trustee
and supplemental interest trustee. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the Holder
of this Certificate by virtue of the acceptance hereof assents and by which
such
Holder is bound.
A-2
So
long
as the Swap Contract or the Corridor Contract is in effect, no transfer of
a
LIBOR Certificate (other than a transfer of a LIBOR Certificate to an affiliate
of the Depositor (either directly or through a nominee) in connection with
the
initial issuance of the Certificates) shall be made unless the Trustee shall
have received either (i) a representation from the transferee of such LIBOR
Certificate acceptable to and in form and substance satisfactory to the Trustee
to the effect that such transferee is not a Plan, or (ii) a representation
that
the purchase and holding of the LIBOR Certificate satisfy the requirements
for
exemptive relief under XXXX 00-00, XXXX 00-0, XXXX 00-00, XXXX 00-00, XXXX
96-23
or the service provider exemption provided by Section 408 (b)(17) of ERISA
and
Section 4975 (d)(20) of the Code or a similar exemption. In the event
that such a representation letter is not delivered, one of the foregoing
representations, as appropriate, shall be deemed to have been made by the
transferee’s (including an initial acquiror’s) acceptance of the LIBOR
Certificate. In the event that such representation is violated, such
transfer or acquisition shall be void and of no effect.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory of
the
Trustee.
A-3
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__ | ||||||
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
|
||||||
as Trustee | ||||||
|
By:
|
|||||
Countersigned: | ||||||
By | ||||||
Authorized Signatory of | ||||||
DEUTSCHE BANK NATIONAL TRUST COMPANY, | ||||||
as Trustee |
A-4
EXHIBIT
B
[FORM
OF
SUBORDINATED CERTIFICATE]
[UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.]
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
[THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.]
SO
LONG
AS THE SWAP CONTRACT OR THE CORRIDOR CONTRACT IS IN EFFECT, NO TRANSFER OF
THIS
CERTIFICATE SHALL BE MADE UNLESS THE TRUSTEE SHALL HAVE RECEIVED A
REPRESENTATION LETTER FROM THE TRANSFEREE OF THIS CERTIFICATE TO THE EFFECT
THAT
EITHER (I) SUCH TRANSFEREE IS NEITHER AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT WHICH IS SUBJECT TO SECTION 406 OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, AND/OR SECTION 4975 OF
THE
CODE OR ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE SUCH PLAN’S OR ARRANGEMENT’S
ASSETS BY REASON OF THEIR INVESTMENT IN THE ENTITY (A “PLAN”) NOR A PERSON
ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO EFFECT
SUCH TRANSFER OR (II) THE ACQUISITION AND HOLDING OF THIS CERTIFICATE ARE
ELIGIBLE FOR EXEMPTIVE RELIEF UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
(“PTCE”) 00-00, XXXX 00-0, XXXX 00-00, XXXX 00-00, XXXX 96-23 OR THE SERVICE
PROVIDER EXEMPTION PROVIDED UNDER SECTION 408(B)(17) OF ERISA AND SECTION
4975(D)(20) OF THE CODE. ANY PURPORTED TRANSFER OF THIS CERTIFICATE
PRIOR TO THE TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST TO OR ON BEHALF
OF A
PLAN WITHOUT THE DELIVERY TO THE TRUSTEE OF A REPRESENTATION LETTER AS DESCRIBED
ABOVE SHALL BE VOID AND OF NO EFFECT. IF THIS CERTIFICATE IS A
BOOK-ENTRY CERTIFICATE, THE TRANSFEREE WILL BE DEEMED TO HAVE MADE A
REPRESENTATION AS PROVIDED IN CLAUSE (I) OR (II) OF THIS PARAGRAPH, AS
APPLICABLE.
B-1
[NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE REPRESENTS TO THE TRUSTEE THAT SUCH TRANSFEREE IS NOT AND IS NOT
INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF AN EMPLOYEE BENEFIT PLAN SUBJECT
TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR
A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR, IF THE CERTIFICATE HAS BEEN
THE
SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING, DELIVERS A REPRESENTATION IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN, OR DELIVERS
TO THE TRUSTEE AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE
AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE
CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF
OF
AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO SECTION 4975 OF THE CODE WITHOUT
THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL
BE
VOID AND OF NO EFFECT.]
B-2
Certificate
No.
|
:
|
|
Cut-off Date
|
:
|
|
First
Distribution Date
|
:
|
|
Initial
Certificate Balance of
this
Certificate
(“Denomination”)
|
:
|
$
|
Initial
Certificate Balances of
all
Certificates of this Class
|
:
|
$
|
CUSIP
|
:
|
|
INDYMAC
MBS, INC.
IndyMac
INDX Mortgage Loan Trust 200_-_
Mortgage
Pass-Through Certificates, Series 200_-_
Class
[___]
evidencing
a percentage interest in the distributions allocable to the Certificates of
the
above-referenced Class with respect to a Trust Fund consisting primarily of
a
pool of conventional mortgage loans (the “Mortgage Loans”) secured by first
liens on one- to four-family residential properties.
IndyMac
MBS, Inc., as Depositor
Principal
in respect of this Certificate is distributable monthly as set forth herein
or
in the Agreement (defined below). Accordingly, the Certificate
Balance at any time may be less than the Certificate Balance as set forth
herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Seller, the Servicer
or
the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or
instrumentality.
This
certifies that
is the registered owner of the Percentage Interest evidenced by this
Certificate (obtained by dividing the denomination of this Certificate by the
aggregate Initial Certificate Balances of the denominations of all Certificates
of the Class to which this Certificate belongs) in certain monthly distributions
with respect to a Trust Fund consisting primarily of the Mortgage Loans
deposited by IndyMac MBS, Inc. (the “Depositor”). The Trust Fund was
created pursuant to a Pooling and Servicing Agreement dated as of the Cut-off
Date specified above (the “Agreement”) among the Depositor, IndyMac Bank,
F.S.B., as seller (in such capacity, the “Seller”), and as servicer (in such
capacity, the “Servicer”), and Deutsche Bank National Trust Company, as trustee
(the “Trustee”), swap trustee and supplemental interest trustee. To
the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
B-3
[No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Securities Act
and any applicable state securities laws or is exempt from the registration
requirements under said Act and such laws. In the event that a
transfer is to be made in reliance upon an exemption from the Securities Act
and
such laws, in order to assure compliance with the Securities Act and such laws,
the Certificateholder desiring to effect such transfer and such
Certificateholder’s prospective transferee shall each certify to the Trustee in
writing the facts surrounding the transfer. In the event that such a
transfer is to be made within three years from the date of the initial issuance
of Certificates pursuant hereto, there shall also be delivered (except in the
case of a transfer pursuant to Rule 144A of the Securities Act) to the Trustee
an Opinion of Counsel that such transfer may be made pursuant to an exemption
from the Securities Act and such state securities laws, which Opinion of Counsel
shall not be obtained at the expense of the Trustee, the Seller, the Servicer
or
the Depositor. The Holder hereof desiring to effect such transfer
shall, and does hereby agree to, indemnify the Trustee and the Depositor against
any liability that may result if the transfer is not so exempt or is not made
in
accordance with such federal and state laws.]
[No
transfer of a Certificate of this Class shall be made unless the Trustee shall
have received either (i) a representation [letter] from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
or
other benefit plan subject to Section 406 of ERISA or Section 4975 of
the Code, or a person acting on behalf of or investing plan assets of any such
plan, which representation letter shall not be an expense of the Trustee or
the
Servicer, (ii) if the Certificate has been the subject of an ERISA-Qualifying
Underwriting, a representation that the transferee is an insurance company
which
is purchasing such Certificate with funds contained in an “insurance company
general account” (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 (“PTCE 95-60”)) and that the purchase and
holding of such Certificate are covered under Sections I and III of PTCE 95-60
or (iii) in the case of any such Certificate presented for registration in
the
name of an employee benefit plan subject to ERISA or Section 4975 of the
Code (or comparable provisions of any subsequent enactments), or a trustee
of
any such plan or any other person acting on behalf of any such plan, an Opinion
of Counsel satisfactory to the Trustee and addressed to the Trustee and the
Servicer to the effect that the purchase and holding of such Certificate will
not result in a nonexempt prohibited transaction under ERISA or
Section 4975 of the Code and will not subject the Trustee or the Servicer
to any obligation in addition to those undertaken in the Agreement, which
Opinion of Counsel shall not be an expense of the Trustee, the Servicer or
the
Trust Fund. Notwithstanding anything else to the contrary herein, any
purported transfer of a Certificate of this Class to or on behalf of an employee
benefit plan subject to ERISA or to Section 4975 of the Code without the
opinion of counsel satisfactory to the Trustee as described above shall be
void
and of no effect.]
So
long
as the Swap Contract or the Corridor Contract is in effect, no transfer of
a
LIBOR Certificate (other than a transfer of a LIBOR Certificate to an affiliate
of the Depositor (either directly or through a nominee) in connection with
the
initial issuance of the Certificates) shall be made unless the Trustee shall
have received either (i) a representation from the transferee of such LIBOR
Certificate acceptable to and in form and substance satisfactory to the Trustee
to the effect that such transferee is not a Plan, or (ii) a representation
that
the purchase and holding of the LIBOR Certificate satisfy the requirements
for
exemptive relief under XXXX 00-00, XXXX 00-0, XXXX 00-00, XXXX 00-00, XXXX
96-23
or the service provider exemption provided by Section 408 (b)(17) of ERISA
and
Section 4975 (d)(20) of the Code or a similar exemption. In the event
that such a representation letter is not delivered, one of the foregoing
representations, as appropriate, shall be deemed to have been made by the
transferee’s (including an initial acquiror’s) acceptance of the LIBOR
Certificate. In the event that such representation is violated, such
transfer or acquisition shall be void and of no effect.
B-4
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory of
the
Trustee.
B-5
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__ | ||||||
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
|
||||||
as Trustee | ||||||
|
By:
|
|||||
Countersigned: | ||||||
By | ||||||
Authorized Signatory of | ||||||
DEUTSCHE BANK NATIONAL TRUST COMPANY, | ||||||
as Trustee |
B-6
EXHIBIT
C
[FORM
OF
CLASS A-R CERTIFICATE]
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “RESIDUAL INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE WITH
THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE REPRESENTS TO THE TRUSTEE THAT SUCH TRANSFEREE IS NOT AND IS NOT
INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF AN EMPLOYEE BENEFIT PLAN SUBJECT
TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR
A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR, IF SUCH PURCHASER IS AN
INSURANCE COMPANY, DELIVERS A REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS
OF THE AGREEMENT REFERRED TO HEREIN, OR DELIVERS TO THE TRUSTEE AN OPINION
OF
COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO
HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY
PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN SUBJECT TO ERISA OR TO SECTION 4975 OF THE CODE WITHOUT THE OPINION OF
COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF
NO
EFFECT.
C-1
Certificate
No.
|
:
|
|
Cut-off Date
|
:
|
|
First
Distribution Date
|
:
|
|
Initial
Certificate Balance of
this
Certificate
(“Denomination”)
|
:
|
$
|
Initial
Certificate Balances of
all
Certificates of this Class
|
:
|
$
|
CUSIP
|
:
|
|
INDYMAC
MBS, INC.
IndyMac
INDX Mortgage Loan Trust 200_-_
Mortgage
Pass-Through Certificates, Series 200_-_
evidencing
the distributions allocable to the Class A-R Certificates with respect to a
Trust Fund consisting primarily of a pool of conventional mortgage loans (the
“Mortgage Loans”) secured by first liens on one- to four-family residential
properties.
IndyMac
MBS, Inc., as Depositor
Principal
in respect of this Certificate is distributable monthly as set forth herein
or
in the Agreement (defined below). Accordingly, the Certificate
Balance at any time may be less than the Certificate Balance as set forth
herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Seller, the Servicer
or
the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or
instrumentality.
This
certifies that
is the registered owner of the Percentage Interest (obtained by dividing the
denomination of this Certificate by the aggregate Initial Certificate Balances
of the denominations of all Certificates of the Class to which this Certificate
belongs) in certain monthly distributions with respect to a Trust Fund
consisting of the Mortgage Loans deposited by IndyMac MBS, Inc. (the
“Depositor”). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
“Agreement”) among the Depositor, IndyMac Bank, F.S.B., as seller (in such
capacity, the “Seller”) and as servicer (in such capacity, the “Servicer”), and
Deutsche Bank National Trust Company, as trustee (the “Trustee”), swap trustee
and supplemental interest trustee. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the Holder
of this Certificate by virtue of the acceptance hereof assents and by which
such
Holder is bound.
Any
distribution of the proceeds of any remaining assets of the Trust Fund will
be
made only upon presentment and surrender of this Class A-R Certificate at the
Corporate Trust Office.
C-2
No
transfer of a Class A-R Certificate shall be made unless the Trustee shall
have
received either (i) a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
or
other benefit plan subject to Section 406 of ERISA or Section 4975 of
the Code, or a person investing on behalf of or with plan assets of any such
plan, which representation letter shall not be an expense of the Trustee or
the
Servicer, (ii) a representation that the purchaser is an insurance company
which
is purchasing such Certificate with funds contained in an “insurance company
general account” (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 (“PTCE 95-60”)) and that the purchase and
holding of such Certificate are covered under Sections I and III of PTCE 95-60
or (iii) in the case of any such Certificate presented for registration in
the
name of an employee benefit plan subject to ERISA or Section 4975 of the
Code (or comparable provisions of any subsequent enactments), or a trustee
of
any such plan or any other person acting on behalf of any such plan, an Opinion
of Counsel satisfactory to the Trustee and addressed to the Trustee and the
Servicer to the effect that the purchase and holding of such Class A-R
Certificate will not result in a nonexempt prohibited transaction under
Section 406 of ERISA or Section 4975 of the Code and will not subject
the Trustee or the Servicer to any obligation in addition to those undertaken
in
the Agreement, which Opinion of Counsel shall not be an expense of the Trustee,
the Servicer or the Trust Fund. Notwithstanding anything else to the
contrary herein, any purported transfer of a Class A-R Certificate to or on
behalf of an employee benefit plan subject to ERISA or to Section 4975 of the
Code without the opinion of counsel satisfactory to the Trustee as described
above shall be void and of no effect.
Each
Holder of this Class A-R Certificate will be deemed to have agreed to be bound
by the restrictions of the Agreement, including but not limited to the
restrictions that (i) each person holding or acquiring any Ownership Interest
in
this Class A-R Certificate must be a Permitted Transferee, (ii) no Ownership
Interest in this Class A-R Certificate may be transferred without delivery
to
the Trustee of (a) a transfer affidavit of the proposed transferee and (b)
a
transfer certificate of the transferor, each of such documents to be in the
form
described in the Agreement, (iii) each person holding or acquiring any Ownership
Interest in this Class A-R Certificate must agree to require a transfer
affidavit and to deliver a transfer certificate to the Trustee as required
pursuant to the Agreement, (iv) each person holding or acquiring an Ownership
Interest in this Class A-R Certificate must agree not to transfer an Ownership
Interest in this Class A-R Certificate if it has actual knowledge that the
proposed transferee is not a Permitted Transferee and (v) any attempted or
purported transfer of any Ownership Interest in this Class A-R Certificate
in
violation of such restrictions will be absolutely null and void and will vest
no
rights in the purported transferee.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory of
the
Trustee.
C-3
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__ | ||||||
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
|
||||||
as Trustee | ||||||
|
By:
|
|||||
Countersigned: | ||||||
By | ||||||
Authorized Signatory of | ||||||
DEUTSCHE BANK NATIONAL TRUST COMPANY, | ||||||
as Trustee |
C-4
EXHIBIT
D-1
[RESERVED]
X-0-0
XXXXXXX
X-0
[FORM
OF
CLASS C CERTIFICATES]
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT REGISTRATION
THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS
OF
THE AGREEMENT REFERRED TO HEREIN.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO THE EFFECT
THAT SUCH TRANSFEREE IS NOT, AND IS NOT INVESTING ON BEHALF OF OR WITH PLAN
ASSETS OF, AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR A PLAN OR ARRANGEMENT SUBJECT TO
SECTION 4975 OF THE CODE, OR, IF SUCH TRANSFEREE IS AN INSURANCE COMPANY,
DELIVERS TO THE TRUSTEE A REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS
OF
THE AGREEMENT REFERRED TO HEREIN, OR DELIVERS TO THE TRUSTEE AN OPINION OF
COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO
HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY
PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT SUBJECT TO ERISA OR TO SECTION 4975 OF THE CODE WITHOUT
THE
OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE
VOID
AND OF NO EFFECT.
D-2-1
Certificate
No.
|
:
|
||||
Cut-off
Date
|
:
|
||||
First
Distribution Date
|
:
|
||||
Percentage
Interest
|
|||||
of
this Certificate
|
|||||
("Denomination")
|
:
|
||||
CUSIP
|
:
|
||||
ISIN
|
:
|
||||
Interest
Rate
|
:
|
||||
Maturity
Date
|
:
|
||||
INDYMAC
MBS, INC.
IndyMac
INDX Mortgage Loan Trust 200_-_
Mortgage
Pass-Through Certificates, Series 200_-_
Class
C
evidencing
a percentage interest in the distributions allocable to the Certificates of
the
above-referenced Class with respect to a Trust Fund consisting primarily of
a
pool of 30-year conventional adjustable-rate mortgage loans (the “Mortgage
Loans”) secured by first liens on one- to four-family residential
properties.
IndyMac
MBS, Inc., as Depositor
Distributions
in respect of this Certificate are distributable monthly as set forth herein
or
in the Agreement (defined below). This Certificate does not evidence
an obligation of, or an interest in, and is not guaranteed by the Depositor,
the
Seller, the Servicer or the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or
instrumentality.
This
certifies that
is the registered owner of the Percentage Interest evidenced by this
Certificate
in certain monthly distributions with respect to a Trust Fund consisting
primarily of the Mortgage Loans deposited by IndyMac MBS, Inc. (the
“Depositor”). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
“Agreement”) among the Depositor, IndyMac Bank, F.S.B., as seller (in such
capacity, the “Seller”), and as servicer (in such capacity, the “Servicer”), and
Deutsche Bank National Trust Company, as trustee (the “Trustee”), swap trustee
and supplemental interest trustee. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the Holder
of this Certificate by virtue of the acceptance hereof assents and by which
such
Holder is bound.
D-2-2
No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Securities Act
and any applicable state securities laws or is exempt from the registration
requirements under said Act and such laws. In the event that a
transfer is to be made in reliance upon an exemption from the Securities Act
and
such laws, in order to assure compliance with the Securities Act and such laws,
the Certificateholder desiring to effect such transfer and such
Certificateholder’s prospective transferee shall each certify to the Trustee in
writing the facts surrounding the transfer. In the event that such a
transfer is to be made within three years from the date of the initial issuance
of Certificates pursuant hereto, there shall also be delivered (except in the
case of a transfer pursuant to Rule 144A of the Securities Act) to the Trustee
an Opinion of Counsel that such transfer may be made pursuant to an exemption
from the Securities Act and such state securities laws, which Opinion of Counsel
shall not be obtained at the expense of the Trustee, the Seller, the Servicer
or
the Depositor. The Holder hereof desiring to effect such transfer
shall, and does hereby agree to, indemnify the Trustee and the Depositor against
any liability that may result if the transfer is not so exempt or is not made
in
accordance with such federal and state laws.
No
transfer of a Certificate of this Class shall be made unless the Trustee shall
have received either (i) a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
or
other arrangement subject to Section 406 of ERISA or Section 4975 of the Code,
or a person acting on behalf of or investing plan assets of any such plan or
arrangement, which representation letter shall not be an expense of the Trustee
or the Servicer, (ii) a representation that the transferee 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
Certificate of this Class presented for registration in the name of an employee
benefit plan or arrangement subject to ERISA or Section 4975 of the Code (or
comparable provisions of any subsequent enactments), or a trustee of any such
plan or arrangement or any other person acting on behalf of any such plan or
arrangement, an Opinion of Counsel satisfactory to the Trustee and addressed
to
the Trustee and the Servicer to the effect that the purchase and holding of
such
Certificate will not result in a non-exempt prohibited transaction under ERISA
or the Code and will not subject the Trustee or the Servicer to any obligation
in addition to those undertaken in the Agreement, which Opinion of Counsel
shall
not be an expense of the Trustee, the Servicer or the Trust
Fund. Notwithstanding anything else to the contrary herein, any
purported transfer of a Certificate of this Class to or on behalf of an employee
benefit plan or arrangement subject to ERISA or to Section 4975 of the Code
without the Opinion of Counsel satisfactory to the Trustee as described above
shall be void and of no effect.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory of
the
Trustee.
D-2-3
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: | ||||||
DEUTSCHE
BANK NATIONAL TRUST
|
||||||
COMPANY, as Trustee | ||||||
|
By:
|
|||||
Countersigned: | ||||||
By | ||||||
Authorized Signatory of | ||||||
DEUTSCHE BANK NATIONAL TRUST | ||||||
COMPANY, as Trustee |
D-2-4
EXHIBIT
E
[Form
of
Reverse of Certificates]
INDYMAC
MBS, INC.
IndyMac
INDX Mortgage Loan Trust 200_-_
Mortgage
Pass-Through Certificates, Series 200_-_
This
Certificate is one of a duly authorized issue of Certificates designated as
IndyMac MBS, Inc. Mortgage Pass-Through Certificates, of the Series specified
on
the face hereof (herein collectively called the “Certificates”), and
representing a beneficial ownership interest in the Trust Fund created by the
Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day of
each month
or, if such 25th day is
not a
Business Day, the Business Day immediately following (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is the last Business Day of the month
next
preceding the month of such Distribution Date.
Distributions
on this Certificate shall be made by wire transfer of immediately available
funds to the account of the Holder hereof at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have so
notified the Trustee in writing at least five Business Days prior to the Record
Date and such Certificateholder shall satisfy the conditions to receive such
form of payment set forth in the Agreement, or, if not, by check mailed by
first
class mail to the address of such Certificateholder appearing in the Certificate
Register. The final distribution on each Certificate will be made in
like manner, but only upon presentment and surrender of such Certificate at
the
Corporate Trust Office or such other location specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee with the consent of the Holders of
Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement
also permits the amendment thereof, in certain limited circumstances, without
the consent of the Holders of any of the Certificates.
E-1
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Trustee upon surrender of this Certificate for registration of transfer
at
the Corporate Trust Office, accompanied by a written instrument of transfer
in
form satisfactory to the Trustee and the Certificate Registrar duly executed
by
the holder hereof or such holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the
Trust
Fund will be issued to the designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Seller and the Trustee and any agent of the
Depositor or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and neither the Depositor,
the
Trustee, nor any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date on which the aggregate Stated Principal Balance of the
Mortgage Loans is less than ten percent (10%) of the Cut-off Date Pool Principal
Balance, the Servicer will have the option to repurchase, in whole, from the
Trust Fund all remaining Mortgage Loans and all property acquired in respect
of
the Mortgage Loans at a purchase price determined as provided in the
Agreement. In the event that no such optional termination occurs, the
obligations and responsibilities created by the Agreement will terminate upon
the later of the maturity or other liquidation (or any advance with respect
thereto) of the last Mortgage Loan remaining in the Trust Fund or the
disposition of all property in respect thereof and the distribution to
Certificateholders of all amounts required to be distributed pursuant to the
Agreement. In no event, however, will the trust created by the
Agreement continue beyond the expiration of 21 years from the death of the
last
survivor of the descendants living at the date of the Agreement of a certain
person named in the Agreement.
Any
term
used herein that is defined in the Agreement shall have the meaning assigned
in
the Agreement, and nothing herein shall be deemed inconsistent with that
meaning.
E-2
ASSIGNMENT
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s)
unto
|
(Please
print or typewrite name and address including postal zip code
of
assignee)
|
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on
the
Certificate Register of the Trust Fund.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the
following
address:
Dated:
Signature by or on behalf of assignor |
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available
funds to,
_________________________________________________________________________________________________
__________________________________________________________________________________________________________________________________,
for
the
account
of ____________________________________________________________________________________________________________________,
account
number
, or, if mailed by check, to
___________________________________
__________________________________________________________________________________________________________________________________
__________________________________________________________________________________________________________________________________.
Applicable
statements should be mailed
to _______________________________________________________________________________________________________________ _________________________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________________________
This
information is provided
by _______________________________________________________________________________________________________________________________,
the
assignee named above,
or ___________________________________________________________________________________________________________,
as
its
agent.
E-3
STATE
OF CALIFORNIA
|
)
|
: ss.:
|
|
COUNTY
OF _____________
|
)
|
On
the
th day of
,
20 before me, a notary public in and for said State,
personally appeared
,
known to me who, being by me duly sworn, did depose and say that he executed
the
foregoing instrument.
|
|
||
Notary
Public
|
|||
[Notarial Seal] |
|
|
E-4
EXHIBIT
F-1
[FORM
OF
CLASS P CERTIFICATE]
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE A REPRESENTATION LETTER TO THE EFFECT THAT
SUCH TRANSFEREE IS NOT AND IS NOT INVESTING ON BEHALF OF OR WITH PLAN ASSETS
OF
AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT
OF 1974, AS AMENDED (“ERISA”), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE,
OR, IF THE CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING,
A REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED
TO
HEREIN, OR DELIVERS AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS
OF
THE AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO
THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF
OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO SECTION 4975 OF THE CODE
WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE
SHALL BE VOID AND OF NO EFFECT.
F-1-1
Certificate
No.
|
:
|
|
Cut-off
Date
|
:
|
|
First
Distribution Date
|
:
|
|
Initial
Certificate Balance
|
||
of
this Certificate
|
||
(“Denomination”)
|
:
|
$
|
Initial
Certificate Balances
|
||
of
all Certificates
|
||
of
this Class
|
:
|
$
|
CUSIP
|
:
|
|
Interest
Rate
|
:
|
|
Maturity
Date
|
:
|
INDYMAC
MBS, INC.
IndyMac
INDX Mortgage Loan Trust 200_-__
Mortgage
Pass-Through Certificates, Series 200_-__
Class
P
evidencing
a percentage interest in the distributions allocable to the Certificates of
the
above-referenced Class with respect to a Trust Fund consisting primarily of
a
pool of conventional mortgage loans (the “Mortgage Loans”) secured by first
liens on one- to four-family residential properties.
Distributors
in respect of this Certificate are distributable monthly as set forth
herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate
does not evidence an obligation of, or an interest in, and is not guaranteed
by
the Depositor, the Seller, the Servicer or the Trustee referred to below or
any
of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
This
certifies that ________________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination
of
this Certificate by the aggregate of the denominations of all Certificates
of
the Class to which this Certificate belongs) in certain monthly distributions
with respect to a Trust Fund consisting primarily of the Mortgage Loans
deposited by IndyMac MBS, Inc. (the “Depositor”). The Trust Fund was
created pursuant to a Pooling and Servicing Agreement dated as of the Cut-off
Date specified above (the “Agreement”) among the Depositor, IndyMac Bank,
F.S.B., as seller and Servicer (the “Seller” or the “Servicer,” as
appropriate), and Deutsche Bank National Trust Company, as trustee
(the “Trustee”), swap trustee and supplemental interest trustee. To
the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
F-1-2
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement,
withdrawals from the Distribution Account may be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of advances made, or certain expenses incurred, with respect
to
the Mortgage Loans.
This
Certificate does not have a Certificate Balance or Pass-Through Rate and will
be
entitled to distributions only to the extent set forth in the
Agreement. In addition, any distribution of the proceeds of any
remaining assets of the Trust will be made only upon presentment and surrender
of this Certificate at the Corporate Trust Office or the office or agency
maintained by the Trustee.
No
transfer of a Certificate of this Class shall be made unless such disposition
is
exempt from the registration requirements of the Securities Act of 1933, as
amended (the “1933 Act”), and any applicable state securities laws or is made in
accordance with the 1933 Act and such laws. In the event of any such
transfer, the Trustee shall require the transferor to execute a transferor
certificate (in substantially the form attached to the Pooling and Servicing
Agreement) and deliver either (i) an Investment Letter or the Rule
144A Letter, in either case substantially in the form attached to the Agreement,
or (ii) a written Opinion of Counsel to the Trustee that such transfer may
be
made pursuant to an exemption, describing the applicable exemption and the
basis
therefor, from the 1933 Act or is being made pursuant to the 1933 Act, which
Opinion of Counsel shall be an expense of the transferor.
No
transfer of a Certificate of this Class shall be made unless the Trustee shall
have received either (i) a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such (x) transferee is not an employee benefit
plan
subject to Section 406 of ERISA or Section 4975 of the Code, or a
person acting on behalf of or investing plan assets of any such plan, which
representation letter shall not be an expense of the Trustee or (y) if the
Certificate has been the subject of an ERISA-Qualifying Underwriting, a
representation that the transferee is an insurance company that is purchasing
such Certificate with funds contained in an “insurance company general account”
(as such term is defined in Section V(e) of Prohibited Transaction Class
Exemption 95-60 (“PTCE 95-60”) and that the purchase
and holding of such Certificate satisfy the requirements for exemptive relief
under Sections I and III of PTCE 95-60 or (ii) in the case of a Certificate
presented for registration in the name of an employee benefit plan subject
to
ERISA, or a plan or arrangement subject to Section 4975 of the Code (or
comparable provisions of any subsequent enactments), or a trustee of any such
plan or any other person acting on behalf of any such plan or arrangement or
using such plan’s or arrangement’s assets, an Opinion of Counsel satisfactory to
the Trustee, which Opinion of Counsel shall not be an expense of the Trustee,
the Servicer or the Trust Fund, addressed to the Trustee and the Servicer,
to
the effect that the purchase and holding of such Certificate will not result
in
a nonexempt prohibited transaction under ERISA or Section 4975 of the Code
and will not subject the Trustee or the Servicer to any obligation in addition
to those expressly undertaken in this Agreement or to any
liability.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory of
the
Trustee.
F-1-3
* * *
F-1-4
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__ | ||||||
DEUTSCHE
BANK NATIONAL TRUST
COMPANY,
|
||||||
as Trustee | ||||||
|
By
|
|||||
Countersigned: | ||||||
By | ||||||
Authorized Signatory of | ||||||
DEUTSCHE BANK NATIONAL TRUST | ||||||
COMPANY, as Trustee |
F-1-5
INDYMAC
MBS, INC.
IndyMac
INDX Mortgage Loan Trust 200_-__
Mortgage
Pass-Through Certificates
This
Certificate is one of a duly authorized issue of Certificates designated as
IndyMac MBS, Inc. Mortgage Pass-Through Certificates, of the Series specified
on
the face hereof (herein collectively called the “Certificates”), and
representing a beneficial ownership interest in the Trust Fund created by the
Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day of
each month or, if such 25th day is
not a Business Day, the Business Day immediately following (the “Distribution
Date”), commencing on the first Distribution Date specified on the face hereof,
to the Person in whose name this Certificate is registered at the close of
business on the applicable Record Date in an amount equal to the product of
the
Percentage Interest evidenced by this Certificate and the amount required to
be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The
Record Date applicable to each Distribution Date is the last Business Day of
the
month next preceding the month of such Distribution Date.
Distributions
on this Certificate shall be made by wire transfer of immediately available
funds to the account of the Holder hereof at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have so
notified the Trustee in writing at least five Business Days prior to the related
Record Date and such Certificateholder shall satisfy the conditions to receive
such form of payment set forth in the Agreement, or, if not, by check mailed
by
first class mail to the address of such Certificateholder appearing in the
Certificate Register. The final distribution on each Certificate will
be made in like manner, but only upon presentment and surrender of such
Certificate at the Corporate Trust Office or such other location specified
in
the notice to Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee with the consent of the Holders of
Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement
also permits the amendment thereof, in certain limited circumstances, without
the consent of the Holders of any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Trustee upon surrender of this Certificate for registration of transfer
at
the Corporate Trust Office, accompanied by a written instrument of transfer
in
form satisfactory to the Trustee and the Certificate Registrar duly executed
by
the holder hereof or such holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the
Trust
Fund will be issued to the designated transferee or transferees.
F-1-6
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Seller and the Trustee and any agent of the
Depositor or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and neither the Depositor,
the
Trustee, nor any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date on which the aggregate Stated Principal Balance of the
Mortgage Loans is less than ten percent (10%) of the Cut-off Date Pool Principal
Balance, the Servicer will have the option to repurchase, in whole, from the
Trust Fund all remaining Mortgage Loans and all property acquired in respect
of
the Mortgage Loans at a purchase price determined as provided in the
Agreement. In the event that no such optional termination occurs, the
obligations and responsibilities created by the Agreement will terminate upon
the later of the maturity or other liquidation (or any advance with respect
thereto) of the last Mortgage Loan remaining in the Trust Fund or the
disposition of all property in respect thereof and the distribution to
Certificateholders of all amounts required to be distributed pursuant to the
Agreement. In no event, however, will the trust created by the
Agreement continue beyond the expiration of 21 years from the death of the
last
survivor of the descendants living at the date of the Agreement of a certain
person named in the Agreement.
Any
term
used herein that is defined in the Agreement shall have the meaning assigned
in
the Agreement, and nothing herein shall be deemed inconsistent with that
meaning.
F-1-7
ASSIGNMENT
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
|
(Please
print or typewrite name and address including postal zip code of
assignee)
|
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust Fund.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:
Signature by or on behalf of assignor |
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available
funds to,
_________________________________________________________________________________________________
__________________________________________________________________________________________________________________________________,
for
the
account
of ____________________________________________________________________________________________________________________,
account
number
, or, if mailed by check, to
___________________________________
__________________________________________________________________________________________________________________________________
__________________________________________________________________________________________________________________________________.
Applicable
statements should be mailed
to _______________________________________________________________________________________________________________ _________________________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________________________
This
information is provided
by _______________________________________________________________________________________________________________________________,
the
assignee named above,
or ___________________________________________________________________________________________________________,
as
its
agent.
F-1-8
STATE
OF ___________________
|
)
|
: ss.:
|
|
COUNTY
OF __________________
|
)
|
On the th day of , 20 before me, a notary public in and for said State, personally appeared , known to me who, being by me duly sworn, did depose and say that he executed the foregoing instrument.
|
|
||
Notary
Public
|
|||
[Notarial Seal] |
F-1-9
EXHIBIT
F-2
[FORM
OF
CLASS L CERTIFICATE]
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO THE EFFECT
THAT SUCH TRANSFEREE IS NOT, AND IS NOT INVESTING ON BEHALF OF OR WITH PLAN
ASSETS OF, AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR A PLAN OR ARRANGEMENT SUBJECT TO
SECTION 4975 OF THE CODE, OR IF THE TRANSFEREE IS AN INSURANCE COMPANY AND
THE
CERTIFICATES HAVE BEEN THE SUBJECT OF AN ERISA QUALIFYING UNDERWRITING, A
REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED
TO
HEREIN OR AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE
AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE
CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF
OF
AN EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ERISA OR TO SECTION 4975
OF
THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED
ABOVE SHALL BE VOID AND OF NO EFFECT.
F-2-1
Certificate
No.
|
:
|
|
Cut-off
Date
|
:
|
|
First
Distribution Date
|
:
|
|
Initial
Certificate Balance
|
||
of
this Certificate
|
||
(“Denomination”)
|
:
|
|
Initial
Certificate Balances
|
||
of
all Certificates
|
||
of
this Class
|
:
|
|
CUSIP
|
:
|
|
ISIN
|
:
|
|
Interest
Rate
|
:
|
Not
Applicable
|
Maturity
Date
|
:
|
Not
Applicable
|
INDYMAC
MBS, INC.
IndyMac
INDX Mortgage Loan Trust 200_-__
Mortgage
Pass-Through Certificates
Class
L
evidencing
a percentage interest in the distributions allocable to the Certificates of
the
above-referenced Class with respect to a Trust Fund consisting primarily of
a
pool of 30-year conventional mortgage loans (the “Mortgage Loans”) secured by
first liens on one- to four-family residential properties payable solely from
Late Payment Fees.
Distributions
in respect of this Certificate are distributable monthly as set forth
herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate
does not evidence an obligation of, or an interest in, and is not guaranteed
by
the Depositor, the Seller, the Servicer or the Trustee referred to below or
any
of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
This
certifies that ________________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination
of
this Certificate by the aggregate of the denominations of all Certificates
of
the Class to which this Certificate belongs) in certain monthly distributions
with respect to a Trust Fund consisting primarily of the Mortgage Loans
deposited by IndyMac MBS, Inc. (the “Depositor”). The Trust Fund was
created pursuant to a Pooling and Servicing Agreement dated as of the Cut-off
Date specified above (the “Agreement”) among the Depositor, IndyMac Bank,
F.S.B., as seller and servicer (the “Seller” or the “Servicer”, as
appropriate), and Deutsche Bank National Trust Company, as trustee
(the “Trustee”), swap trustee and supplemental interest trustee. To
the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
F-2-2
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement,
withdrawals from the Collection Account and the Distribution Account may be
made
from time to time for purposes other than distributions to Certificateholders,
such purposes including reimbursement of advances made, or certain expenses
incurred, with respect to the Mortgage Loans.
This
Certificate does not have a Certificate Balance or Pass-Through Rate and will
be
entitled to distributions only to the extent set forth in the
Agreement. In addition, any distribution of the proceeds of any
remaining assets of the Trust will be made only upon presentment and surrender
of this Certificate at the Corporate Trust Office or the office or agency
maintained by the Trustee.
No
transfer of a Certificate of this Class shall be made unless such disposition
is
exempt from the registration requirements of the Securities Act of 1933, as
amended (the “1933 Act”), and any applicable state securities laws or is made in
accordance with the 1933 Act and such laws. In the event of any such
transfer, the Trustee shall require the transferor to execute a transferor
certificate (in substantially the form attached to the Pooling and Servicing
Agreement) and deliver either (i) an Investment Letter or the Rule
144A Letter, in either case substantially in the form attached to the Agreement,
or (ii) a written Opinion of Counsel to the Trustee that such transfer may
be
made pursuant to an exemption, describing the applicable exemption and the
basis
therefor, from the 1933 Act or is being made pursuant to the 1933 Act, which
Opinion of Counsel shall be an expense of the transferor.
No
transfer of a Certificate of this Class shall be made unless the Trustee shall
have received either (i) a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
or
arrangement subject to Section 406 of ERISA or Section 4975 of the Code, or
a
person investing on behalf of or with plan assets of any such plan, which
representation letter shall not be an expense of the Trustee, or (ii) if the
transferee is an insurance company and the Certificates have been the subject
of
an ERISA-Qualifying Underwriting, a representation that the purchaser is an
insurance company which is purchasing such Certificates with funds contained
in
an “insurance company general account” (as such term is defined in Section V(e)
of Prohibited Transaction Class Exemption 95-60 (“PTCE 95-60”)) and that the
purchase and holding of such Certificates are covered under Sections I and
III
of PTCE 95-60, or (iii) in the case of a Certificate presented for registration
in the name of an employee benefit plan or arrangement 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
arrangement 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 addressed to the Trustee and the Servicer, which Opinion
of
Counsel shall not be an expense of the Trustee, the Servicer or the Trust Fund,
to the effect that the purchase and holding of such Certificate will not result
in a non-exempt prohibited transaction under Section 406 of ERISA or Section
4975 of the Code and will not subject the Trustee or the Servicer to any
obligation in addition to those expressly undertaken in this Agreement or to
any
liability. If no written representation or Opinion of Counsel as
described above is delivered to the Trustee, the representation in (i) or (ii)
above, as appropriate, shall be deemed to have been made to the Trustee by
the
Transferee’s acceptance of this Certificate and by a beneficial owner’s
acceptance of its interest in such Certificate. Notwithstanding
anything else to the contrary herein, any purported transfer of a Certificate
of
this Class to or on behalf of an employee benefit plan or arrangement subject
to
ERISA or to the Code without the Opinion of Counsel satisfactory to the Trustee
as described above shall be void and of no effect.
F-2-3
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory of
the
Trustee.
F-2-4
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, ____ | ||||||
DEUTSCHE
BANK NATIONAL TRUST
COMPANY,
|
||||||
as Trustee | ||||||
|
By:
|
|||||
Countersigned: | ||||||
By | ||||||
Authorized Signatory of | ||||||
DEUTSCHE BANK NATIONAL TRUST | ||||||
COMPANY, as Trustee |
F-2-5
EXHIBIT
G-1
FORM
OF
INITIAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Servicer]
[Seller]
_____________________
_____________________
|
Re:
|
Pooling
and Servicing Agreement among IndyMac MBS, Inc., as
Depositor,
IndyMac Bank, F.S.B., as Seller and Servicer,
and
Deutsche Bank National Trust Company, as Trustee, Swap Trustee
and
Supplemental
Interest Trustee, Mortgage Pass-Through Certificates,
Series 200 -
|
Gentlemen:
In
accordance with Section 2.02 of the above-captioned Pooling and Servicing
Agreement (the “Pooling and Servicing Agreement”), the undersigned, as Trustee,
hereby certifies that, as to each Mortgage Loan listed in the Mortgage Loan
Schedule (other than any Mortgage Loan listed in the attached schedule), it
has
received:
(i) the
original Mortgage Note, endorsed as provided in the following
form: “Pay to the order of ________, without recourse”;
and
(ii) an
executed assignment of the Mortgage (which may be included in a blanket
assignment or assignments); provided, however, that it has received no
assignment with respect to any Mortgage for which the Mortgaged Property is
located in the Commonwealth of Puerto Rico.
Based
on
its review and examination and only as to the foregoing documents, such
documents appear regular on their face and to such Mortgage Loan.
The
Trustee has made no independent examination of any documents contained in each
Mortgage File beyond the review specifically required in the Pooling and
Servicing Agreement. The Trustee makes no representations as
to: (i) the validity, legality, sufficiency, enforceability or
genuineness of any of the documents contained in each Mortgage File of any
of
the Mortgage Loans identified on the Mortgage Loan Schedule, or (ii) the
collectability, insurability, effectiveness or suitability of any such Mortgage
Loan.
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Pooling and Servicing Agreement.
G-1-1
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
|
||||||
as Trustee | ||||||
|
By:
|
|||||
Name: | ||||||
Title: |
G-1-2
EXHIBIT
G-2
[RESERVED]
G-2-1
EXHIBIT
G-3
FORM
OF
DELAY DELIVERY CERTIFICATION
[date]
[Depositor]
[Servicer]
[Seller]
_____________________
_____________________
|
Re:
|
Pooling
and Servicing Agreement among IndyMac MBS, Inc., as
Depositor,
IndyMac Bank, F.S.B., as Seller and Servicer,
and
Deutsche Bank National Trust Company, as Trustee, Swap Trustee
and
Supplemental
Interest Trustee, Mortgage Pass-Through Certificates,
Series 200 -
|
Gentlemen:
Reference
is made to the Initial Certification of Trustee relating to the above-referenced
series, with the schedule of exceptions attached thereto (the “Schedule A”),
delivered by the undersigned, as Trustee, on the Closing Date in accordance
with
Section 2.02 of the above-captioned Pooling and Servicing Agreement (the
“Pooling and Servicing Agreement”). The undersigned hereby certifies
that, as to each Mortgage Loan that is a Delay Delivery Mortgage Loan listed
on
Schedule A attached hereto (other than any Mortgage Loan paid in full or listed
on Schedule B attached hereto) it has received:
|
(i)
|
the
original Mortgage Note, endorsed by the Seller or the originator
of such
Mortgage Loan, without recourse in the following form: “Pay to
the order of _______________ without recourse”, with all intervening
endorsements that show a complete chain of endorsement from the originator
to the Seller, or, if the original Mortgage Note has been lost or
destroyed and not replaced, an original lost note affidavit from
the
Seller, stating that the original Mortgage Note was lost or destroyed,
together with a copy of the Mortgage
Note;
|
|
(ii)
|
the
original recorded Mortgage;
|
|
(iii)
|
an
executed assignment of the Mortgage to “Deutsche Bank National Trust
Company, as trustee under the Pooling and Servicing Agreement dated
as of
May 1, 2007, without recourse” (each such assignment, when duly and
validly completed, to be in recordable form and sufficient to effect
the
assignment of and transfer to the assignee thereof, under the Mortgage
to
which such assignment relates);
|
|
(iv)
|
the
original recorded assignment or assignments of the Mortgage together
with
all interim recorded assignments of such
Mortgage;
|
|
(v)
|
the
original or copies of each assumption, modification, written assurance
or
substitution agreement, if any, with evidence of recording thereon
if
recordation thereof is permissible under applicable law;
and
|
G-3-1
|
(vi)
|
the
original or duplicate original lender’s title policy and all riders, if
any, thereto or, in the event such original title policy has not
been
received from the insurer, any one of an original title binder, an
original preliminary title report or an original title commitment,
or a
copy thereof certified by the title company, with the original policy
of
title insurance to be delivered within one year of the Closing
Date.
|
In
the
event that in connection with any Mortgage Loan for which the Seller cannot
deliver the original recorded Mortgage or all interim recorded assignments
of
the Mortgage satisfying the requirements of clause (ii), (iii) or (iv), as
applicable, the Trustee has received, in lieu thereof, a true and complete
copy
of such Mortgage and/or such assignment or assignments of the Mortgage, as
applicable, each certified by the Seller, the applicable title company, escrow
agent or attorney, or the originator of such Mortgage Loan, as the case may
be,
to be a true and complete copy of the original Mortgage or assignment of
Mortgage submitted for recording.
Based
on
its review and examination and only as to the foregoing documents, (i) such
documents appear regular on their face and related to such Mortgage Loan, and
(ii) the information set forth in items (i), (iv), (vi) and (xv) (solely as
of origination, not as of the Cut-off Date) of the definition of the “Mortgage
Loan Schedule” in Section 1.01 of the Pooling and Servicing Agreement
accurately reflects information set forth in the Mortgage File.
The
Trustee has made no independent examination of any documents contained in each
Mortgage File beyond the review specifically required in the above-referenced
Pooling and Servicing Agreement. The Trustee makes no representations
as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any
of
the Mortgage Loans identified on the [Mortgage Loan Schedule][Loan Number and
Borrower Identification Mortgage Loan Schedule] or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage
Loan.
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Pooling and Servicing Agreement.
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
|
||||||
as Trustee | ||||||
|
By:
|
|||||
Name: | ||||||
Title: |
G-3-2
EXHIBIT
G-4
[RESERVED]
G-4-1
EXHIBIT
H-1
FORM
OF
FINAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Servicer]
[Seller]
_____________________
_____________________
|
Re:
|
Pooling
and Servicing Agreement among IndyMac MBS, Inc., as
Depositor,
IndyMac Bank, F.S.B., as Seller and Servicer,
and
Deutsche Bank National Trust Company, as Trustee, Swap Trustee
and
Supplemental
Interest Trustee, Mortgage Pass-Through Certificates,
Series 200 -
|
Gentlemen:
In
accordance with Section 2.02 of the above-captioned Pooling and Servicing
Agreement (the “Pooling and Servicing Agreement”), the undersigned, as Trustee,
hereby certifies that as to each Mortgage Loan listed in the Mortgage Loan
Schedule (other than any Mortgage Loan paid in full or listed on the attached
Document Exception Report) it has received:
(i) The
original Mortgage Note, endorsed in the form provided in Section 2.01(c) of
the Pooling and Servicing Agreement, with all intervening endorsements showing
a
complete chain of endorsement from the originator to the Seller.
(ii) The
original recorded Mortgage.
(iii) An
executed assignment of the Mortgage in the form provided in Section 2.01(c)
of the Pooling and Servicing Agreement; provided, however, that it has received
no assignment with respect to any Mortgage for which the Mortgaged Property
is
located in the Commonwealth of Puerto Rico, or, if the Depositor has certified
or the Trustee otherwise knows that the Mortgage has not been returned from
the
applicable recording office, a copy of the assignment of the Mortgage (excluding
information to be provided by the recording office).
(iv) The
original or duplicate original recorded assignment or assignments of the
Mortgage showing a complete chain of assignment from the originator to the
Seller.
(v) The
original or duplicate original lender’s title policy and all riders thereto or,
any one of an original title binder, an original preliminary title report or
an
original title commitment, or a copy thereof certified by the title
company.
Based
on
its review and examination and only as to the foregoing documents, (a) such
documents appear regular on their face and related to such Mortgage Loan, and
(b) the information set forth in items (i), (ii), (iii), (iv), (vi) and (xi)
of
the definition of the “Mortgage Loan Schedule” in Section 1.01 of the
Pooling and Servicing Agreement accurately reflects information set forth in
the
Mortgage File.
H-1-1
The
Trustee has made no independent examination of any documents contained in each
Mortgage File beyond the review specifically required in the Pooling and
Servicing Agreement. The Trustee makes no representations as
to: (i) the validity, legality, sufficiency, enforceability or
genuineness of any of the documents contained in each Mortgage File of any
of
the Mortgage Loans identified on the Mortgage Loan Schedule, or (ii) the
collectability, insurability, effectiveness or suitability of any such Mortgage
Loan. Notwithstanding anything herein to the contrary, the Trustee
has made no determination and makes no representations as to whether (i) any
endorsement is sufficient to transfer all right, title and interest of the
party
so endorsing, as noteholder or assignee thereof, in and to that Mortgage Note
or
(ii) any assignment is in recordable form or sufficient to effect the assignment
of and transfer to the assignee thereof, under the Mortgage to which the
assignment relates.
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Pooling and Servicing Agreement.
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
|
||||||
as Trustee | ||||||
|
By:
|
|||||
Name: | ||||||
Title: |
X-0-0
XXXXXXX
X-0
[RESERVED]
H-2-1
EXHIBIT
I
TRANSFER
AFFIDAVIT
IndyMac
MBS, Inc.
Mortgage
Pass-Through Certificates
Series
200_-_
STATE
OF CALIFORNIA
|
)
|
: ss.:
|
|
COUNTY
OF _____________
|
)
|
The
undersigned, being first duly sworn, deposes and says as follows:
1. The
undersigned is an officer of
,
the proposed Transferee of an Ownership Interest in a Class A-R Certificate
(the
“Certificate”) issued pursuant to the Pooling and Servicing Agreement, (the
“Agreement”), relating to the above-referenced Series, by and among IndyMac MBS,
Inc., as depositor (the “Depositor”), IndyMac Bank, F.S.B., as seller and
Servicer and Deutsche Bank National Trust Company, as trustee (the “Trustee”),
supplemental interest trustee and swap trustee. Capitalized terms
used, but not defined herein or in Exhibit 1 hereto, shall have the meanings
ascribed to such terms in the Agreement. The Transferee has
authorized the undersigned to make this affidavit on behalf of the
Transferee.
2. The
Transferee is, as of the date hereof, and will be, as of the date of the
Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate for its own account.
3. The
Transferee has been advised of, and understands that (i) a tax will be imposed
on Transfers of the Certificate to Persons that are not Permitted Transferees;
(ii) such tax will be imposed on the transferor, or, if such Transfer is through
an agent (which includes a broker, nominee or middleman) for a Person that
is
not a Permitted Transferee, on the agent; and (iii) the Person otherwise liable
for the tax shall be relieved of liability for the tax if the subsequent
Transferee furnished to such Person an affidavit that such subsequent Transferee
is a Permitted Transferee and, at the time of Transfer, such Person does not
have actual knowledge that the affidavit is false.
4. The
Transferee has been advised of, and understands that a tax will be imposed
on a
“pass-through entity” holding the Certificate if at any time during the taxable
year of the pass-through entity a Person that is not a Permitted Transferee
is
the record holder of an interest in such entity. The Transferee
understands that such tax will not be imposed for any period with respect to
which the record holder furnishes to the pass-through entity an affidavit that
such record holder is a Permitted Transferee and the pass-through entity does
not have actual knowledge that such affidavit is false. (For this
purpose, a “pass-through entity” includes a regulated investment company, a real
estate investment trust or common trust fund, a partnership, trust or estate,
and certain cooperatives and, except as may be provided in Treasury Regulations,
persons holding interests in pass-through entities as a nominee for another
Person.)
5. The
Transferee has reviewed the provisions of Section 5.02(c) of the Agreement
(attached hereto as Exhibit 2 and incorporated herein by reference) and
understands the legal consequences of the acquisition of an Ownership Interest
in the Certificate including, without limitation, the restrictions on subsequent
Transfers and the provisions regarding voiding the Transfer and mandatory
sales. The Transferee expressly agrees to be bound by and to abide by
the provisions of Section 5.02(c) 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.
I-1
6. The
Transferee agrees to require a Transfer Affidavit from any Person to whom the
Transferee attempts to Transfer its Ownership Interest in the Certificate,
and
in connection with any Transfer by a Person for whom the Transferee is acting
as
nominee, trustee or agent, and the Transferee will not Transfer its Ownership
Interest or cause any Ownership Interest to be Transferred to any Person that
the Transferee knows is not a Permitted Transferee. In connection
with any such Transfer by the Transferee, the Transferee agrees to deliver
to
the Trustee a certificate substantially in the form set forth as Exhibit J
to
the Agreement (a “Transferor Certificate”) to the effect that such Transferee
has no actual knowledge that the Person to which the Transfer is to be made
is
not a Permitted Transferee.
7. The
Transferee does not have the intention to impede the assessment or collection
of
any tax legally required to be paid with respect to the
Certificate.
8. The
Transferee’s taxpayer identification number is
.
9. The
Transferee has provided to the Trustee a correct, complete and duly executed
tax
certification form (i.e., U.S. Internal Revenue Service Form X-0, X-0XXX,
X-0XXX, X-0XXX or W-8ECI, as applicable (or any successor form thereto),
together with appropriate attachments) as a condition to such transfer and
agrees to update such tax certification form (i) upon expiration of any such
tax
certification form, (ii) as required under then applicable U.S. Treasury
regulations and (iii) promptly upon learning that any tax certification form
previously provided has become obsolete or incorrect
10. The
Transferee is a U.S. Person as defined in Code
Section 7701(a)(30).
11. The
Transferee is aware that the Certificate may be a “noneconomic residual
interest” within the meaning of proposed Treasury regulations promulgated
pursuant to the Code and that the transferor of a noneconomic residual interest
will remain liable for any taxes due with respect to the income on such residual
interest, unless no significant purpose of the transfer was to impede the
assessment or collection of tax.
12. The
Transferee is not a foreign permanent establishment or fixed base (within the
meaning of an applicable income tax treaty) of a U.S. taxpayer.
13. The
Transferee will not transfer the Certificates, directly or indirectly, to a
foreign permanent establishment or fixed base (within the meaning of an
applicable income tax treaty) of the Transferee or another U.S.
taxpayer.
14. The
Transferee will not cause income from the Certificates to be attributable to
a
foreign permanent establishment or fixed base (within the meaning of an
applicable income tax treaty) of the Transferee or another U.S.
taxpayer.
15. Either:
(a)
(i)
At the time of the transfer, and at the close of each of the Transferee's two
fiscal years preceding the Transferee's fiscal year of transfer, the
Transferee's gross assets for financial reporting purposes exceed $100 million
and its net assets for financial reporting purposes exceed $10 million. For
purposes of the preceding sentence, the gross assets and net assets of a
Transferee do not include any obligation of any Related Person, as defined
below, or any other asset if a principal purpose for holding or acquiring the
other asset is to permit the Transferee to satisfy the conditions of this
paragraph 15(a); (ii) The Transferee is an Eligible Corporation, as defined
below, and hereby agrees that any subsequent transfer of the interest will
be to
another Eligible Corporation in a transaction that satisfies this Transfer
Affidavit, including this paragraph 15(a); and (iii) The Transferee has not
given the Transferor any reason to know that the Transferee will not honor
the
restrictions on subsequent transfers of the residual interest or that the
Transferee cannot or will not pay any taxes associated with the residual
interest; or
I-2
(b)(i)
The Transferee is a United States Person; (ii) The present value of the
anticipated tax liabilities associated with holding the residual interest does
not exceed the sum of: (A) The present value of any consideration
given to the Transferee to acquire the interest; (B) The present value of the
expected future distributions on the interest; and (C) The present value of
the
anticipated tax savings associated with holding the interest as any REMIC
generates losses; and (iii) For purposes of calculating the aforementioned
present values: (A) The transferee has assumed that it pays tax at a
rate equal to the highest rate of tax specified in Code Section 11(b)(1)
(unless the Transferee has been subject to the alternative minimum tax under
Code Section 55 in the preceding two years and will compute its taxable
income in the current taxable year using the alternative minimum tax rate,
in
which case the Transferee can assume that it pays tax at the rate specified
in
Code Section 55(b)(1)(B) provided the Transferee states in this Transfer
Affidavit that it is using such alternate rate and that has been subject to
the
alternative minimum tax under Code Section 55 in the preceding two years
and will compute its taxable income in the current taxable year using the
alternative minimum tax rate):and (B) The Transferee uses a discount rate equal
to the Federal short-term rate prescribed by section 1274(d) for the month
of
the transfer and the compounding period used by the Transferee.
The
term
“Eligible Corporation” means any domestic C corporation (as defined in section
1361(a)(2) of the Code) other than a corporation which is exempt from, or is
not
subject to, tax under section 11 of the Code, an entity described in section
851(a) or 856(a) of the Code, a REMIC; or an organization to which part I,
subchapter T, chapter 1, subtitle A of the Code applies. The Term
“Related Person” means any person that bears a relationship to the Transferee
enumerated in section 267(b) or 707(b)(1) of the Code, using "20 percent"
instead of "50 percent" where it appears under the provisions; or is under
common control (within the meaning of section 52(a) and (b) of the Code) with
the Transferee.
16. Either
(i) the Transferee is not an employee benefit plan that is subject to ERISA
or a
plan that is subject to Section 4975 of the Code, and the Transferee is not
acting on behalf of or with plan assets of such a plan; or (ii) the Transferee
is an insurance company that is investing funds contained in an “insurance
company general account” (as such term is defined in Section V(e) of
Prohibited Transaction Class Exemption 95-60 (“PTCE 95-60”) and the purchase and
holding of the Class A-R Certificate satisfy the requirements for exemptive
relief under Sections I and III of PTCE 95-60.
* * *
I-3
IN
WITNESS WHEREOF, the Transferee has caused this instrument to be executed on
its
behalf, pursuant to authority of its Board of Directors, by its duly authorized
officer and its corporate seal to be hereunto affixed, duly attested, this
day of
,
20 .
Print Name of Transferee | |||
|
By:
|
||
Name: | |||
Title: | |||
[Corporate
Seal]
ATTEST:
[Assistant]
Secretary
Personally
appeared before me the above-named
,
known or proved to me to be the same person who executed the foregoing
instrument and to be the
of the Transferee, and acknowledged that he executed the same as his free act
and deed and the free act and deed of the Transferee.
Subscribed
and sworn before me this day of
,
20 .
|
|
||
NOTARY PUBLIC | |||
My Commission
expires
the day of
,
20 .
|
I-4
EXHIBIT
1
to
EXHIBIT I
Certain
Definitions
“Ownership
Interest”: As to any Certificate, any ownership interest in such
Certificate, including any interest in such Certificate as the Holder thereof
and any other interest therein, whether direct or indirect, legal or
beneficial.
“Permitted
Transferee”: Any Person other than (i) the United States, any State
or political subdivision thereof, or any agency or instrumentality of any of
the
foregoing, (ii) a foreign government, International Organization or any agency
or instrumentality of either of the foregoing, (iii) an organization (except
certain farmers’ cooperatives described in Code Section 521) that 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 Restricted
Certificate, (iv) a rural electric and telephone cooperatives described in
Code
Section 1381(a)(2)(c), (v) an “electing large partnership” as defined in
Code Section 775 of (vi) a Person that is not a U.S. Person, and (vii) any
other Person so designated by the Depositor based upon an Opinion of Counsel
that the Transfer of an Ownership Interest in a Residual Certificate to such
Person may cause any REMIC to fail to qualify as a REMIC at any time that
certain Certificates are Outstanding. The terms “United States,”
“State” and “International Organization” shall have the meanings set forth in
Code Section 7701 or successor provisions. A corporation will
not be treated as an instrumentality of the United States or of any State or
political subdivision thereof if all of its activities are subject to tax,
and,
with the exception of the FHLMC, a majority of its board of directors is not
selected by such governmental unit.
“Person”: Any
individual, corporation, partnership, joint venture, limited liability company,
bank, joint stock company, trust (including any beneficiary thereof),
unincorporated organization or government or any agency or political subdivision
thereof.
“Transfer”: Any
direct or indirect transfer or sale of any Ownership Interest in a Certificate,
including the acquisition of a Certificate by the Depositor.
“Transferee”: Any
Person who is acquiring by Transfer any Ownership Interest in a
Certificate.
I-5
EXHIBIT
2
to
EXHIBIT I
Section 5.02(c)
of the Agreement
(c) Each
Person who has or who acquires any Ownership Interest in a Residual Certificate
shall be deemed by the acceptance or acquisition of such Ownership Interest
to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in a Residual Certificate are expressly
subject to the following provisions:
(i) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall be a Permitted Transferee and shall promptly notify the Trustee of any
change or impending change in its status as a Permitted Transferee.
(ii) No
Ownership Interest in a Residual Certificate may be registered on the Closing
Date or thereafter transferred, and the Trustee shall not register the Transfer
of any Residual Certificate unless, in addition to the certificates required
to
be delivered to the Trustee under subparagraph (b) above, the Trustee shall
have
been furnished with an affidavit (a “Transfer Affidavit”) of the initial owner
or the proposed transferee in the form attached hereto as Exhibit
I.
(iii) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall agree (A) to obtain a Transfer Affidavit from any other Person to whom
such Person attempts to Transfer its Ownership Interest in a Residual
Certificate, (B) to obtain a Transfer Affidavit from any Person for whom such
Person is acting as nominee, trustee or agent in connection with any Transfer
of
a Residual Certificate and (C) not to Transfer its Ownership Interest in a
Residual Certificate or to cause the Transfer of an Ownership Interest in a
Residual Certificate to any other Person if it has actual knowledge that such
Person is not a Permitted Transferee.
(iv) Any
attempted or purported Transfer of any Ownership Interest in a Residual
Certificate in violation of the provisions of this Section 5.02(c) shall be
absolutely null and void and shall vest no rights in the purported
Transferee. If any purported transferee shall become a Holder of a
Residual Certificate in violation of the provisions of this
Section 5.02(c), then the last preceding Permitted Transferee shall be
restored to all rights as Holder thereof retroactive to the date of registration
of Transfer of such Residual Certificate. The Trustee shall be under
no liability to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by Section 5.02(b) and this
Section 5.02(c) or for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such Holder under
the
provisions of this Agreement so long as the Transfer was registered after
receipt of the Transfer Affidavit, Transferor Certificate and either the Rule
144A Letter or the Investment Letter. The Trustee shall be entitled
but not obligated to recover from any Holder of a Residual Certificate that
was
in fact not a Permitted Transferee at the time it became a Holder or, at such
subsequent time as it became other than a Permitted Transferee, all payments
made on such Residual Certificate at and after either such time. Any
such payments so recovered by the Trustee shall be paid and delivered by the
Trustee to the last preceding Permitted Transferee of such
Certificate.
(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-6
EXHIBIT
J
FORM
OF
TRANSFEROR CERTIFICATE
__________,
200__
IndyMac
MBS, Inc.
000
Xxxxx
Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx,
XX 00000
Attention: Secondary
Marketing, Transaction Management
DB
Services Tennessee
000
Xxxxxxxxx Xxxx Xxxx
Xxxxxxxxx,
XX 00000
Attention: Transfer
Unit, Series 200 -
|
Re:
|
IndyMac
MBS, Inc.
Mortgage
Pass-Through Certificates, Series 200 -,
Class
|
Ladies
and Gentlemen:
In
connection with our disposition of the above Certificates we certify that (a)
we
understand that the Certificates have not been registered under the Securities
Act of 1933, as amended (the “Act”), and are being disposed by us in a
transaction that is exempt from the registration requirements of the Act, (b)
we
have not offered or sold any Certificates to, or solicited offers to buy any
Certificates from, any person, or otherwise approached or negotiated with any
person with respect thereto, in a manner that would be deemed, or taken any
other action which would result in, a violation of Section 5 of the Act and
(c) to the extent we are disposing of a Class A-R Certificate, we have no
knowledge the Transferee is not a Permitted Transferee.
Very truly yours, | |||
Print Name of Transferor | |||
|
By:
|
||
Authorized Officer | |||
J-1
EXHIBIT
K
FORM
OF
INVESTMENT LETTER (NON-RULE 144A)
__________,
200__
IndyMac
MBS, Inc.
000
Xxxxx
Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx,
XX 00000
Attention: Secondary
Marketing, Transaction Management
DB
Services Tennessee
000
Xxxxxxxxx Xxxx Xxxx
Xxxxxxxxx,
XX 00000
Attention: Transfer
Unit, Series 200 -
|
Re:
|
IndyMac
MBS, Inc.
Mortgage
Pass-Through Certificates, Series 200 -,
Class
|
Ladies
and Gentlemen:
In
connection with our acquisition of the above Certificates we certify that (a)
we
understand that the Certificates are not being registered under the Securities
Act of 1933, as amended (the “Act”), or any state securities laws and are being
transferred to us in a transaction that is exempt from the registration
requirements of the Act and any such laws, (b) we are an “accredited investor,”
as defined in Regulation D under the Act, and have such knowledge and experience
in financial and business matters that we are capable of evaluating the merits
and risks of investments in the Certificates, (c) we have had the opportunity
to
ask questions of and receive answers from the Depositor concerning the purchase
of the Certificates and all matters relating thereto or any additional
information deemed necessary to our decision to purchase the Certificates,
(d)
either (i) we are not an employee benefit plan that is subject to the Employee
Retirement Income Security Act of 1974, as amended, or a plan or arrangement
that is subject to Section 4975 of the Internal Revenue Code of 1986, as
amended, nor are we acting on behalf of any such plan or arrangement or using
the assets of any such plan or arrangement to effect such acquisition or (ii)
if
the Certificates have been the subject of an ERISA-Qualifying Underwriting,
we
are purchasing the Certificates with funds contained in an “insurance company
general account” (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 (“PTCE 95-60”)) and the purchase and holding
of such Certificates are covered under Sections I and III of PTCE 95-60, (e)
we
are acquiring the Certificates for investment for our own account and not with
a
view to any distribution of such Certificates (but without prejudice to our
right at all times to sell or otherwise dispose of the Certificates in
accordance with clause (g) below), (f) we have not offered or sold any
Certificates to, or solicited offers to buy any Certificates from, any person,
or otherwise approached or negotiated with any person with respect thereto,
or
taken any other action which would result in a violation of Section 5 of
the Act, (g) we will not sell, transfer or otherwise dispose of any Certificates
unless (1) such sale, transfer or other disposition is made pursuant to an
effective registration statement under the Act or is exempt from such
registration requirements, and if requested, we will at our expense provide
an
opinion of counsel satisfactory to the addressees of this Certificate that
such
sale, transfer or other disposition may be made pursuant to an exemption from
the Act, (2) the purchaser or transferee of such Certificate has executed and
delivered to you a certificate to substantially the same effect as this
certificate, and (3) the purchaser or transferee has otherwise complied with
any
conditions for transfer set forth in the Pooling and Servicing Agreement and
(h)
if we are a corporation purchasing the Certificates in the State of California,
we have a net worth of at least $14,000,000 according to our most recent audited
financial statements.
K-1
Very truly yours, | |||
Print Name of Transferee | |||
|
By:
|
||
Authorized Officer | |||
K-2
EXHIBIT
L
FORM
OF
RULE 144A LETTER
____________,
200__
IndyMac
MBS, Inc.
000
Xxxxx
Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx,
XX 00000
Attention: Secondary
Marketing, Transaction Management
DB
Services Tennessee
000
Xxxxxxxxx Xxxx Xxxx
Xxxxxxxxx,
XX 00000
Attention: Transfer
Unit, Series 200 -
|
Re:
|
IndyMac
MBS, Inc.
Mortgage
Pass-Through Certificates, Series 200 -,
Class
|
Ladies
and Gentlemen:
In
connection with our acquisition of the above Certificates we certify that (a)
we
understand that the Certificates are not being registered under the Securities
Act of 1933, as amended (the “Act”), or any state securities laws and are being
transferred to us in a transaction that is exempt from the registration
requirements of the Act and any such laws, (b) we have such knowledge and
experience in financial and business matters that we are capable of evaluating
the merits and risks of investments in the Certificates, (c) we have had the
opportunity to ask questions of and receive answers from the Depositor
concerning the purchase of the Certificates and all matters relating thereto
or
any additional information deemed necessary to our decision to purchase the
Certificates, (d) either (i) we are not an employee benefit plan that is subject
to the Employee Retirement Income Security Act of 1974, as amended, or a plan
or
arrangement that is subject to Section 4975 of the Internal Revenue Code of
1986, as amended, nor are we acting on behalf of any such plan or arrangement
or
using the assets of any such plan or arrangement to effect such acquisition,
or
(ii) if the Certificates have been the subject of an ERISA-Qualifying
Underwriting, we are purchasing the Certificates with funds contained in an
“insurance company general account” (as defined in Section V(e) of
Prohibited Transaction Class Exemption 95-60 (“PTCE 95-60”)) and our purchase
and holding of the Certificates satisfy the requirements for exemptive relief
under Sections I and III of PTCE 95-60, (e) we have not, nor has anyone acting
on our behalf offered, transferred, pledged, sold or otherwise disposed of
the
Certificates, any interest in the Certificates or any other similar security
to,
or solicited any offer to buy or accept a transfer, pledge or other disposition
of the Certificates, any interest in the Certificates or any other similar
security from, or otherwise approached or negotiated with respect to the
Certificates, any interest in the Certificates or any other similar security
with, any person in any manner, or made any general solicitation by means of
general advertising or in any other manner, or taken any other action, that
would constitute a distribution of the Certificates under the Act or that would
render the disposition of the Certificates a violation of Section 5 of the
Act or require registration pursuant thereto, nor will act, nor has authorized
or will authorize any person to act, in such manner with respect to the
Certificates, (f) we are a “qualified institutional buyer” as that term is
defined in Rule 144A under the Act (“Rule 144A”) and have completed either of
the forms of certification to that effect attached hereto as Annex 1 or Annex
2,
(g) we are aware that the sale to us is being made in reliance on Rule 144A,
(h)
we are acquiring the Certificates for our own account or for resale pursuant
to
Rule 144A and further, understand that such Certificates may be resold, pledged
or transferred only (A) to a person reasonably believed to be a qualified
institutional buyer that purchases for its own account or for the account of
a
qualified institutional buyer to whom notice is given that the resale, pledge
or
transfer is being made in reliance on Rule 144A, or (B) pursuant to another
exemption from registration under the Act and (i) if we are a corporation
purchasing the Certificates in the State of California, we have a net worth
of
at least $14,000,000 according to our most recent audited financial
statements.
L-1
Very truly yours, | |||
Print Name of Transferee | |||
|
By:
|
||
Authorized Officer | |||
L-2
ANNEX
1
TO EXHIBIT L
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees Other Than Registered Investment Companies]
The
undersigned (the “Buyer”) hereby certifies as follows to the parties listed in
the Rule 144A Transferee Certificate to which this certification relates with
respect to the Certificates described therein:
1. As
indicated below, the undersigned is the President, Chief Financial Officer,
Senior Vice President or other executive officer of the Buyer.
2. In
connection with purchases by the Buyer, the Buyer is a “qualified institutional
buyer” as that term is defined in Rule 144A under the Securities Act of 1933, as
amended (“Rule 144A”) because (i) the Buyer owned and/or invested on a
discretionary basis
$ 1 in securities (except for the excluded
securities referred to below) as of the end of the Buyer’s most recent fiscal
year (such amount being calculated in accordance with Rule 144A and (ii) the
Buyer satisfies the criteria in the category marked below.
___ Corporation,
etc. The Buyer is a corporation (other than a bank, savings and
loan association or similar institution), Massachusetts or similar business
trust, partnership, or charitable organization described in
Section 501(c)(3) of the Internal Revenue Code of 1986, as
amended.
___ Bank. The
Buyer (a) is a national bank or banking institution organized under the laws
of
any State, territory or the District of Columbia, the business of which is
substantially confined to banking and is supervised by the State or territorial
banking commission or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a copy of which is
attached hereto.
___ Savings
and Loan. The Buyer (a) is a savings and loan association,
building and loan association, cooperative bank, homestead association or
similar institution, which is supervised and examined by a State or Federal
authority having supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an audited net worth
of at least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
___ Broker-dealer. The
Buyer is a dealer registered pursuant to Section 15 of the Securities
Exchange Act of 1934.
___ Insurance
Company. The Buyer is an insurance company whose primary and
predominant business activity is the writing of insurance or the reinsuring
of
risks underwritten by insurance companies and which is subject to supervision
by
the insurance commissioner or a similar official or agency of a State, territory
or the District of Columbia.
1
|
Buyer
must own and/or invest on a discretionary basis at least $100,000,000
in
securities unless Buyer is a dealer, and, in that case, Buyer must
own
and/or invest on a discretionary basis at least $10,000,000 in
securities.
|
L-3
___ State
or Local Plan. The Buyer is a plan established and maintained by
a State, its political subdivisions, or any agency or instrumentality of the
State or its political subdivisions, for the benefit of its
employees.
___ ERISA
Plan. The Buyer is an employee benefit plan within the meaning of
Title I of the Employee Retirement Income Security Act of 1974.
___ Investment
Advisor. The Buyer is an investment advisor registered under the
Investment Advisors Act of 1940.
___ Small
Business Investment Company. Buyer is a small business investment
company licensed by the U.S. Small Business Administration under
Section 301(c) or (d) of the Small Business Investment Act of
1958.
___ Business
Development Company. Buyer is a business development company as
defined in Section 202(a)(22) of the Investment Advisors Act of
1940.
3. The
term “securities” as used herein does not include (i) securities of issuers that
are affiliated with the Buyer, (ii) securities that are part of an unsold
allotment to or subscription by the Buyer, if the Buyer is a dealer, (iii)
securities issued or guaranteed by the U.S. or any instrumentality thereof,
(iv)
bank deposit notes and certificates of deposit, (v) loan participations, (vi)
repurchase agreements, (vii) securities owned but subject to a repurchase
agreement and (viii) currency, interest rate and commodity swaps.
4. For
purposes of determining the aggregate amount of securities owned and/or invested
on a discretionary basis by the Buyer, the Buyer used the cost of such
securities to the Buyer and did not include any of the securities referred
to in
the preceding paragraph, except (i) where the Buyer reports its securities
holdings in its financial statements on the basis of their market value, and
(ii) no current information with respect to the cost of those securities has
been published. If clause (ii) in the preceding sentence applies, the
securities may be valued at market. Further, in determining such
aggregate amount, the Buyer may have included securities owned by subsidiaries
of the Buyer, but only if such subsidiaries are consolidated with the Buyer
in
its financial statements prepared in accordance with generally accepted
accounting principles and if the investments of such subsidiaries are managed
under the Buyer’s direction. However, such securities were not
included if the Buyer is a majority-owned, consolidated subsidiary of another
enterprise and the Buyer is not itself a reporting company under the Securities
Exchange Act of 1934, as amended.
5. The
Buyer acknowledges that it is familiar with Rule 144A and understands that
the
seller to it and other parties to the Certificates are relying and will continue
to rely on the statements made herein because one or more sales to the Buyer may
be in reliance on Rule 144A.
L-4
6. Until
the date of purchase of the Rule 144A Securities, the Buyer will notify each
of
the parties to which this certification is made of any changes in the
information and conclusions herein. Until such notice is given, the
Buyer’s purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the
Buyer is a bank or savings and loan is provided above, the Buyer agrees that
it
will furnish to such parties updated annual financial statements promptly after
they become available.
Print
Name of Buyer
|
|||
|
By:
|
||
Name: | |||
Title: | |||
Date: | |||
L-5
ANNEX
2
TO EXHIBIT L
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees That are Registered Investment Companies]
The
undersigned (the “Buyer”) hereby certifies as follows to the parties listed in
the Rule 144A Transferee Certificate to which this certification relates with
respect to the Certificates described therein:
1. As
indicated below, the undersigned is the President, Chief Financial Officer
or
Senior Vice President of the Buyer or, if the Buyer is a “qualified
institutional buyer” as that term is defined in Rule 144A under the Securities
Act of 1933, as amended (“Rule 144A”) because Buyer is part of a Family of
Investment Companies (as defined below), is such an officer of the
Adviser.
2. In
connection with purchases by Buyer, the Buyer is a “qualified institutional
buyer” as defined in SEC Rule 144A because (i) the Buyer is an investment
company registered under the Investment Company Act of 1940, as amended and
(ii)
as marked below, the Buyer alone, or the Buyer’s Family of Investment Companies,
owned at least $100,000,000 in securities (other than the excluded securities
referred to below) as of the end of the Buyer’s most recent fiscal
year. For purposes of determining the amount of securities owned by
the Buyer or the Buyer’s Family of Investment Companies, the cost of such
securities was used, except (i) where the Buyer or the Buyer’s Family of
Investment Companies reports its securities holdings in its financial statements
on the basis of their market value, and (ii) no current information with respect
to the cost of those securities has been published. If clause (ii) in
the preceding sentence applies, the securities may be valued at
market.
___ The
Buyer owned
$ in
securities (other than the excluded securities referred to below) as of the
end
of the Buyer’s most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
___ The
Buyer is part of a Family of Investment Companies which owned in the aggregate
$ in securities
(other than the excluded securities referred to below) as of the end of the
Buyer’s most recent fiscal year (such amount being calculated in accordance with
Rule 144A).
3. The
term “Family of Investment Companies” as used herein means two or more
registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The
term “securities” as used herein does not include (i) securities of
issuers that are affiliated with the Buyer or are part of the Buyer’s Family of
Investment Companies, (ii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iii) bank deposit notes and certificates of deposit,
(iv) loan participations, (v) repurchase agreements, (vi) securities owned
but
subject to a repurchase agreement and (vii) currency, interest rate and
commodity swaps.
5. The
Buyer is familiar with Rule 144A and understands that the parties listed in
the
Rule 144A Transferee Certificate to which this certification relates are relying
and will continue to rely on the statements made herein because one or more
sales to the Buyer will be in reliance on Rule 144A. In addition, the
Buyer will only purchase for the Buyer’s own account.
L-6
6. Until
the date of purchase of the Certificates, the undersigned will notify the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates of any changes in the information and conclusions
herein. Until such notice is given, the Buyer’s purchase of the
Certificates will constitute a reaffirmation of this certification by the
undersigned as of the date of such purchase.
Print
Name of Buyer
|
|||
|
By:
|
||
Name: | |||
Title: | |||
Date: | |||
L-7
EXHIBIT
M
REQUEST
FOR RELEASE
(for
Trustee)
IndyMac
MBS, Inc.
Mortgage
Pass-Through Certificates
Series
200_-_
Loan
Information
|
|||
Name
of Mortgagor:
|
|||
Servicer
Loan
No.:
|
|||
Trustee
|
|||
Name:
|
|||
Address:
|
|||
Trustee
Mortgage
File No.:
|
|||
The
undersigned Servicer hereby acknowledges that it has received from Deutsche
Bank
National Trust Company, as Trustee for the Holders of Mortgage Pass-Through
Certificates, of the above-referenced Series, the documents referred to below
(the “Documents”). All capitalized terms not otherwise defined in
this Request for Release shall have the meanings given them in the Pooling
and
Servicing Agreement (the “Pooling and Servicing Agreement”) relating to the
above-referenced Series among the Trustee, swap trustee and supplemental
interest trustee, IndyMac Bank, F.S.B., as Seller and Servicer and IndyMac
MBS,
Inc., as Depositor.
( )
|
Mortgage
Note dated
,
20 , in the original principal sum of
$ , made by
.
payable to, or endorsed to the order of, the
Trustee.
|
( )
|
Mortgage
recorded on
as instrument no.
in the County Recorder’s Office of the County of
,
State of
in book/reel/docket
of official records at page/image
.
|
( )
|
Deed
of Trust recorded on
as instrument no.
in the County Recorder’s Office of the County of
,
State of
in book/reel/docket
of official records at page/image
.
|
( )
|
Assignment
of Mortgage or Deed of Trust to the Trustee, recorded on
as instrument no.
in the County Recorder’s Office of the County of
, State of
in book/reel/docket
of official records at page/image
.
|
M-1
( )
|
Other
documents, including any amendments, assignments or other assumptions
of
the Mortgage Note or Mortgage.
|
The
undersigned Servicer hereby acknowledges and agrees as follows:
(1) The
Servicer shall hold and retain possession of the Documents in trust for the
benefit of the Trustee, solely for the purposes provided in the
Agreement.
(2) The
Servicer shall not cause or knowingly permit the Documents to become subject
to,
or encumbered by, any claim, liens, security interest, charges, writs of
attachment or other impositions nor shall the Servicer assert or seek to assert
any claims or rights of setoff to or against the Documents or any proceeds
thereof.
(3) The
Servicer shall return each and every Document previously requested from the
Mortgage File to the Trustee when the need therefor no longer exists, unless
the
Mortgage Loan relating to the Documents has been liquidated and the proceeds
thereof have been remitted to the Certificate Account and except as expressly
provided in the Agreement.
(4) The
Documents and any proceeds thereof, including any proceeds of proceeds, coming
into the possession or control of the Servicer shall at all times be earmarked
for the account of the Trustee, and the Servicer shall keep the Documents and
any proceeds separate and distinct from all other property in the Servicer’s
possession, custody or control.
INDYMAC
BANK, F.S.B.
|
|||
|
By:
|
||
Name: | |||
Title: | |||
Date: , 20 |
M-2
EXHIBIT
N
REQUEST
FOR RELEASE OF DOCUMENTS
To:
|
Deutsche
Bank National Trust Company
|
Attn:
|
Mortgage
Custody Services
|
Re:
|
The
Pooling and Servicing Agreement dated May 1, 2007 among
IndyMac
|
|
Bank,
F.S.B. as Servicer, Inc, IndyMac MBS, Inc. and
Deutsche
|
|
Bank
National Trust Company, as Trustee, Swap Trustee and Supplemental
Interest
Trustee
|
Ladies
and Gentlemen:
In
connection with the administration of the Mortgage Loans held by you as Trustee
for IndyMac MBS, Inc., we request the release of the Mortgage Loan File for
the
Mortgage Loan(s) described below, for the reason indicated.
FT
Account
#: Pool
#:
Mortgagor’s
Name, Address and Zip Code:
Mortgage
Loan Number:
Reason
for Requesting Documents (check one)
_______1.
|
Mortgage
Loan paid in full (IndyMac hereby certifies that all amounts have
been
received.)
|
_______2.
|
Mortgage
Loan Liquidated (IndyMac hereby certifies that all proceeds of
foreclosure, insurance, or other liquidation have been finally
received.)
|
_______3.
|
Mortgage
Loan in Foreclosure.
|
_______4.
|
Other
(explain): ____________________________________
|
If
item 1
or 2 above is checked, and if all or part of the Mortgage File was previously
released to us, please release to us our previous receipt on file with you,
as
well as an additional documents in your possession relating to the
above-specified Mortgage Loan. If item 3 or 4 is checked, upon return
of all of the above documents to you as Trustee, please acknowledge your receipt
by signing in the space indicated below, and returning this form.
N-1
INDYMAC
BANK, F.S.B.
000
Xxxx
Xxxxxx Xxxxxx
Xxxxxxxx,
Xxxxxxxxxx 00000-0000
By:________________________
Name:______________________
Title:____________________
Date:______________________
TRUSTEE
CONSENT TO RELEASE AND
ACKNOWLEDGEMENT
OF RECEIPT
By:________________________
Name:______________________
Title:____________________
Date:______________________
N-2
EXHIBIT
O-1
FORM
OF
CERTIFICATION TO BE PROVIDED BY THE DEPOSITOR WITH FORM 10-K
Re: IndyMac
MBS, Inc.
IndyMac
INDX Mortgage Loan Trust 200_- , Series 200_- __
I,
[identify the certifying individual], certify that:
1. I
have reviewed this report on Form 10-K and all reports on Form 10-D required
to
be filed in respect of the period covered by this report on Form 10-K of IndyMac
INDX Mortgage Loan Trust 200 - , Series
200 - (the “Exchange Act periodic reports”);
2. Based
on my knowledge, the Exchange Act periodic reports, taken as a whole, does
not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in light of the circumstances under
which
such statements were made, not misleading with respect to the period covered
by
this report;
3. Based
on my knowledge, the distribution, servicing and other information required
to
be provided under Form 10-D for the period covered by this report is included
in
the Exchange Act periodic reports;
4. Based
on my knowledge and the servicer compliance statement required in this report
under Item 1123 of Regulation AB and except as disclosed in the Exchange Act
periodic reports, the servicer has fulfilled its obligations under the servicing
agreement in all material respects; and
5. All
of the reports on assessment of compliance with servicing criteria for
asset-backed securities and their related attestation reports on assessment
of
compliance with servicing criteria for asset-backed securities required to
be
included in this report in accordance with Item 1122 of Regulation AB and
Exchange Act Rules 13a-18 and 15d-18 have been included as an exhibit to this
report, except as otherwise disclosed in this report. Any material
instances of noncompliance described in such reports have been disclosed in
this
report on Form 10-K.
In
giving
the certifications above, I have reasonably relied on information provided
to me
by the following unaffiliated parties: Deutsche Bank National Trust
Company.
Date:
__________________
[Signature]
[Title]
|
O-1-1
EXHIBIT
O-2
TRUSTEE’S
OFFICER’S CERTIFICATE
I,
____________________, a duly elected and acting officer of Deutsche Bank
National Trust Company (the “Trustee”) hereby certify as follows:
Reference
is hereby made to the Pooling and Servicing Agreement dated as of May 1, 2007
(the “Pooling Agreement”) by and among IndyMac Bank, F.S.B., as seller and
servicer, IndyMac MBS, Inc., as depositor and Deutsche Bank National Trust
Company, as trustee, swap trustee and supplemental interest trustee, pursuant
to
which was created the IndyMac INDX Mortgage Loan Trust
200 - , Series 200 - (the “Trust”).
Capitalized terms used herein but not defined shall have the meanings assigned
to them in the Pooling Agreement.
1. I
am an authorized officer of the Trustee and I have reviewed this annual report
on Form 10-K and all reports on Form 10-D required to be filed in respect of
the
period covered by this report on Form 10-K of IndyMac INDX Mortgage Loan Trust
200 - , Series 200 - (the “Exchange
Act Periodic Reports”);
2. For
purposes of this certificate, “Relevant Information” means the information in
the report on assessment of the Trustee’s compliance with the servicing criteria
set forth in Item 1122(d) of Reg AB (the “Servicing Assessment”), the registered
public accounting firm’s attestation provided in accordance with Rules 13a-18
and 15d-18 under the Exchange Act and Section 1122(b) of Reg AB ( the
“Attestation Report”) applicable to the Trustee and the Monthly Statements
(excluding information provided, or based on information provided, by the
Servicer or any servicer) and those items in Exhibit S attached to the Pooling
and Servicing Agreement which indicate the 4.06 statement or the Trustee as
the
responsible party during the Relevant Year. Based on my knowledge, the Relevant
Information, taken as a whole, does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
made, in light of the circumstances under which such statements were made,
not
misleading with respect to the period covered by this annual report;
and
3. Based
on my knowledge, the distribution information required to be provided by the
Trustee under the Pooling and Servicing Agreement is included in the Monthly
Statements.
4. I
am responsible for reviewing the activities performed by the Trustee, as
servicer under the Pooling Agreement during the Relevant Year. Based upon the
review required by the Pooling Agreement and except as disclosed in the
Servicing Assessment or Attestation Report, to the best of my knowledge, the
Trustee has fulfilled its obligations under the Pooling Agreement throughout
the
Relevant Year. Relevant Year shall mean 200__.
DATED as of _____________, 200____. | ||||
|
By:
|
|||
Name: | ||||
Title: | ||||
X-0-0
Xxxxxxx
X-0
[On
File
with the Trustee]
P-2-1
Exhibit
P-2
[On
File
with the Trustee]
P-2-1
EXHIBIT
Q
FORM
10-D, FORM 8-K AND FORM 10-K
REPORTING
RESPONSIBILITY
As
to
each item described below, the entity indicated as the Responsible Party shall
be primarily responsible for reporting the information to the Trustee pursuant
to Section 11.04. If the Trustee is indicated below as to any item,
then the Trustee is primarily responsible for obtaining that
information.
Under
Item 1 of Form 10-D: a) items marked “4.06 statement” are required to be
included in the periodic Distribution Date statement under Section 4.06,
provided by the Trustee based on information received from the Servicer; and
b)
items marked “Form 10-D report” are required to be in the Form 10-D report but
not the 4.06 statement, provided by the party indicated. Information
under all other Items of Form 10-D is to be included in the Form 10-D
report.
Form
|
Item
|
Description
|
Responsible
Party
|
10-D
|
Must
be filed within 15 days of the distribution date for the mortgage-backed
securities.
|
||
1
|
Distribution
and Pool Performance Information
|
||
Item
1121(a) – Distribution and Pool Performance
Information
|
|||
(1)
Any applicable record dates, accrual dates, determination dates for
calculating distributions and actual distribution dates for the
distribution period.
|
4.06
statement
|
||
(2)
Cash flows received and the sources thereof for distributions, fees
and
expenses.
|
4.06
statement
|
||
(3)
Calculated amounts and distribution of the flow of funds for the
period
itemized by type and priority of payment, including:
|
4.06
statement
|
||
(i)
Fees or expenses accrued and
paid, with an identification of the general purpose of such fees
and the
party receiving such fees or expenses.
|
4.06
statement
|
||
(ii)
Payments accrued or paid
with respect to enhancement or other support identified in Item 1114
of
Regulation AB (such as insurance premiums or other enhancement maintenance
fees), with an identification of the general purpose of such payments
and
the party receiving such payments.
|
4.06
statement
|
||
(iii)
Principal, interest and
other distributions accrued and paid on the mortgage-backed securities
by
type and by class or series and any principal or interest shortfalls
or
carryovers.
|
4.06
statement
|
||
(iv)
The amount of excess cash
flow or excess spread and the disposition of excess cash
flow.
|
4.06
statement
|
||
(4)
Beginning and ending principal balances of the mortgage-backed
securities.
|
4.06
statement
|
||
(5)
Interest rates applicable to the pool assets and the mortgage-backed
securities, as applicable.
|
4.06
statement
|
||
(6)
Beginning and ending balances of transaction accounts, such as reserve
accounts, and material account activity during the period.
|
4.06
statement
|
Q-1
(7)
Any amounts drawn on any credit enhancement or other support identified
in
Item 1114 of Regulation AB, as applicable, and the amount of coverage
remaining under any such enhancement, if known and
applicable.
|
4.06
statement
|
||
(8)
Number and amount of pool assets at the beginning and ending of each
period, and updated pool composition information, such as weighted
average
coupon, weighted average life, weighted average remaining term, pool
factors and prepayment amounts.
|
4.06
statement
Updated
pool composition information fields to be as specified by Depositor
from
time to time
|
||
(9)
Delinquency and loss information for the period.
In
addition, describe any material changes to the information specified
in
Item 1100(b)(5) of Regulation AB regarding the pool
assets.
|
4.06
statement.
Form
10-D report: Servicer
|
||
(10)
Information on the amount, terms and general purpose of any advances
made
or reimbursed during the period, including the general use of funds
advanced and the general source of funds for
reimbursements.
|
4.06
statement
|
||
(11)
Any material modifications, extensions or waivers to pool asset terms,
fees, penalties or payments during the distribution period or that
have
cumulatively become material over time.
|
Form
10-D report: Servicer
|
||
(12)
Material breaches of pool asset representations or warranties or
transaction covenants.
|
Form
10-D report: Trustee (based on actual knowledge to the extent not
notified
by the Servicer or the Depositor)and Depositor (to the extent of
actual
knowledge)
|
||
(13)
Information on ratio, coverage or other tests used for determining
any
early amortization, liquidation or other performance trigger and
whether
the trigger was met.
|
4.06
statement
|
||
(14)
Information regarding any new issuance of mortgage-backed securities
backed by the same asset pool,
[information
regarding] any pool asset changes (other than in connection with
a pool
asset converting into cash in accordance with its terms), such as
additions or removals in connection with a pre-funding or revolving
period
and pool asset substitutions and repurchases (and purchase rates,
if
applicable), and cash flows available for future purchases, such
as the
balances of any pre-funding or revolving accounts, if
applicable.
|
Form
10-D report: Depositor
Form
10-D report: Servicer
|
N-2
Disclose
any material changes in the solicitation, credit-granting, underwriting,
origination, acquisition or pool selection criteria or procedures,
as
applicable, used to originate, acquire or select the new pool
assets.
|
Form
10-D report: Servicer
|
||
Item
1121(b) – Pre-Funding or Revolving Period Information
Updated
pool information as required under Item 1121(b).
|
N/A
|
||
2
|
Legal
Proceedings
|
||
Item
1117 – Legal proceedings pending against the following entities, or their
respective property, that is material to Certificateholders, including
proceedings known to be contemplated by governmental
authorities:
Sponsor
(Seller)
Depositor
Trustee
Issuing
entity
Servicer,
affiliated Servicer, other Servicer servicing 20% or more of pool
assets
at time of report, other material servicers
Originator
of 20% or more of pool assets as of the Cut-off Date
Custodian
|
Seller
Depositor
Trustee
Depositor
Servicer
Seller
Trustee
|
||
3
|
Sales
of Securities and Use of Proceeds
|
||
Information
from Item 2(a) of Part II of Form 10-Q:
With
respect to any sale of securities by the sponsor, depositor or issuing
entity, that are backed by the same asset pool or are otherwise issued
by
the issuing entity, whether or not registered, provide the sales
and use
of proceeds information in Item 701 of Regulation S-K. Pricing
information can be omitted if securities were not
registered.
|
Depositor
|
||
4
|
Defaults
Upon Senior Securities
|
||
Information
from Item 3 of Part II of Form 10-Q:
|
N-3
Report
the occurrence of any Event of Default (after expiration of any grace
period and provision of any required notice)
|
Trustee
|
||
5
|
Submission
of Matters to a Vote of Security Holders
|
||
Information
from Item 4 of Part II of Form 10-Q
|
Party
submitting the matter to Holders for vote
|
||
6
|
Significant
Obligors of Pool Assets
|
||
Item
1112(b) –Significant Obligor Financial
Information*
|
N/A
|
||
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|||
7
|
Significant
Enhancement Provider Information
|
||
Item
1114(b)(2) – Credit Enhancement Provider Financial
Information*
Determining
applicable disclosure threshold
Obtaining
required financial information or effecting incorporation by
reference
|
Depositor
|
||
Item
1115(b) – Derivative Counterparty Financial Information*
Determining
current maximum probable exposure
Determining
current significance percentage
Obtaining
required financial information or effecting incorporation by
reference
|
Depositor
|
||
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|||
8
|
Other
Information
|
||
Disclose
any information required to be reported on Form 8-K during the period
covered by the Form 10-D but not reported
|
The
Responsible Party for the applicable Form 8-K item as indicated
below
|
||
9
|
Exhibits
|
||
Distribution
report
|
Trustee
|
||
Exhibits
required by Item 601 of Regulation S-K, such as material
agreements
|
Depositor
|
||
8-K
|
Must
be filed within four business days of an event reportable on Form
8-K.
|
||
1.01
|
Entry
into a Material Definitive Agreement
|
||
Disclosure
is required regarding entry into or amendment of any definitive agreement
that is material to the securitization, even if depositor is not
a
party.
Examples:
servicing agreement, custodial agreement.
|
Servicer;
or any of the following that is a party to the agreement if Servicer
is
not: Trustee, Sponsor, Depositor
|
N-4
Note:
disclosure not required as to definitive agreements that are fully
disclosed in the prospectus
|
|||
1.02
|
Termination
of a Material Definitive Agreement
|
||
Disclosure
is required regarding termination of any definitive agreement
that is material to the securitization (other than expiration in
accordance with its terms), even if depositor is not a party.
Examples:
servicing agreement, custodial agreement.
|
Servicer;
or any of the following that is a party to the agreement if Servicer
is
not: Trustee, Sponsor, Depositor
|
||
1.03
|
Bankruptcy
or Receivership
|
||
Disclosure
is required regarding the bankruptcy or receivership, if known to
the
Depositor, with respect to any of the following:
Sponsor
(Seller), Depositor, Servicer, affiliated Servicer, other Servicer
servicing 20% or more of pool assets at time of report, other material
servicers, Trustee, significant obligor, credit enhancer (10% or
more),
derivatives counterparty
|
Depositor
|
||
2.04
|
Triggering
Events that Accelerate or Increase a Direct Financial Obligation
or an
Obligation under an Off-Balance Sheet Arrangement
|
||
Includes
an early amortization, performance trigger or other event, including
event
of default, that would materially alter the payment priority/distribution
of cash flows/amortization schedule.
Disclosure
will be made of events other than waterfall triggers which are disclosed
in the 4.06 statement
|
Servicer/Trustee
(to the extent of actual knowledge)
|
||
3.03
|
Material
Modification to Rights of Security Holders
|
||
Disclosure
is required of any material modification to documents defining the
rights
of Certificateholders, including the Pooling and Servicing
Agreement
|
Trustee
|
||
5.03
|
Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal
Year
|
||
Disclosure
is required of any amendment “to the governing documents of the issuing
entity”
|
Depositor
|
||
5.06
|
Change
in Shell Company Status
|
N-5
[Not
applicable to ABS issuers]
|
Depositor
|
||
6.01
|
ABS
Informational and Computational Material
|
||
[Not
included in reports to be filed under Section 3.18]
|
Depositor
|
||
6.02
|
Change
of Servicer or Trustee
|
||
Requires
disclosure of any removal, replacement, substitution or addition
of any
servicer, affiliated servicer, other servicer servicing 10% or more
of
pool assets at time of report, other material servicers, certificate
administrator or trustee. Reg AB disclosure about any new
servicer or trustee is also required.
|
Trustee
or Servicer
|
||
6.03
|
Change
in Credit Enhancement or Other External Support
|
||
Covers
termination of any enhancement in manner other than by its terms,
the
addition of an enhancement, or a material change in the enhancement
provided. Applies to external credit enhancements as well as
derivatives. Reg AB disclosure about any new enhancement
provider is also required.
|
Depositor
or Trustee
|
||
6.04
|
Failure
to Make a Required Distribution
|
Trustee
|
|
6.05
|
Securities
Act Updating Disclosure
|
||
If
any material pool characteristic differs by 5% or more at the time
of
issuance of the securities from the description in the final prospectus,
provide updated Reg AB disclosure about the actual asset
pool.
|
Depositor
|
||
If
there are any new servicers or originators required to be disclosed
under
Regulation AB as a result of the foregoing, provide the information
called
for in Items 1108 and 1110 respectively.
|
Depositor
|
||
7.01
|
Regulation
FD Disclosure
|
Depositor
|
|
8.01
|
Other
Events
|
||
Any
event, with respect to which information is not otherwise called
for in
Form 8-K, that the registrant deems of importance to security
holders.
|
Depositor
|
||
9.01
|
Financial
Statements and Exhibits
|
The
Responsible Party applicable to reportable event
|
|
10-K
|
Must
be filed within 90 days of the fiscal year end for the
registrant.
|
||
9B
|
Other
Information
|
||
Disclose
any information required to be reported on Form 8-K during the fourth
quarter covered by the Form 10-K but not reported
|
The
Responsible Party for the applicable Form 8-K item as indicated
above
|
||
15
|
Exhibits
and Financial Statement Schedules
|
||
Item
1112(b) –Significant Obligor Financial
Information
|
Servicer
|
N-6
Item
1114(b)(2) – Credit Enhancement Provider Financial
Information
Determining
applicable disclosure threshold
Obtaining
required financial information or effecting incorporation by
reference
|
Depositor
|
||
Item
1115(b) – Derivative Counterparty Financial Information
Determining
current maximum probable exposure
Determining
current significance percentage
Obtaining
required financial information or effecting incorporation by
reference
|
Depositor
|
||
Item
1117 – Legal proceedings pending against the following entities, or their
respective property, that is material to Certificateholders, including
proceedings known to be contemplated by governmental
authorities:
Sponsor
(Seller)
Depositor
Trustee
Issuing
entity
Servicer,
affiliated Servicer, other Servicer servicing 20% or more of pool
assets
at time of report, other material servicers
Originator
of 20% or more of pool assets as of the Cut-off Date
|
Seller
Depositor
Trustee
Depositor
Servicer
Servicer
|
||
Item
1119 – Affiliations and relationships between the following entities, or
their respective affiliates, that are material to
Certificateholders:
Sponsor
(Seller)
Depositor
Trustee
Servicer,
affiliated Servicer, other Servicer servicing 20% or more of pool
assets
at time of report, other material servicers
Originator
|
Seller
Depositor
Trustee
(only as to affiliations between the Trustee and such other parties
listed)
Servicer
|
N-7
Credit
Enhancer/Support Provider
Significant
Obligor
|
Depositor
Depositor
Servicer
|
||
Item
1122 – Assessment of Compliance with Servicing
Criteria
|
Each
Party participating in the servicing function
|
||
Item
1123 – Servicer Compliance Statement
|
Servicer
|
N-8
EXHIBIT
R
FORM
OF
PERFORMANCE CERTIFICATION
(Trustee)
|
Re:
|
The
Pooling and Servicing Agreement dated as of May 1, 2007 (the
“Pooling and Servicing Agreement”) among IndyMac
MBS, Inc., as Depositor, IndyMac Bank, F.S.B., as Seller and Servicer,
and
the undersigned, as Trustee (the “Trustee”) ,
Swap Trustee and Supplemental Interest
Trustee
|
I,
________________________________, the _______________________ of the Trustee,
certify to the Depositor and the Servicer, and their officers, with the
knowledge and intent that they will rely upon this certification,
that:
I
have
reviewed the report on assessment of the Trustee’s compliance with the servicing
criteria set forth in Item 1122(d) of Regulation AB (the “Servicing
Criteria”), provided in accordance with Rules 13a-18 and 15d-18
under Securities Exchange Act of 1934, as amended (the “Exchange
Act”) and Item 1122 of Regulation AB (the “Servicing
Assessment”), the registered public accounting firm’s attestation
report provided in accordance with Rules 13a-18 and 15d-18 under the Exchange
Act and Section 1122(b) of Regulation AB (the “Attestation
Report”), all reports on Form 10-D containing statements to
certificateholders filed in respect of the period included in the year covered
by the annual report of the Trust Fund (collectively, the
“Distribution Date Statements”);
|
(a)
|
Assuming
the accuracy and completeness of the information delivered to the
Trustee
by the Servicer as provided in the Pooling and Servicing Agreement
and
subject to paragraph (iv) below, to its knowledge the distribution
information determined by the Trustee and set forth in the Distribution
Date Statements contained in all Form 10-D’s included in the year covered
by the annual report of such Trust on Form 10-K for the calendar
year
200[ ], is complete and does not contain any material
misstatement of fact as of the last day of the period covered by
such
annual report;
|
|
(b)
|
Based
solely on the information delivered to the Trustee by the Servicer
as
provided in the Pooling and Servicing Agreement, the distribution
information required under the Pooling and Servicing Agreement to
be
contained in the Trust Fund’s Distribution Date Statements, is included in
such Distribution Date Statements;
|
|
(c)
|
The
Trustee is not certifying as to the accuracy, completeness or correctness
of the information which it received from the Servicer and did not
independently verify or confirm the accuracy, completeness or correctness
of the information provided by the
Servicer;
|
|
(d)
|
I
am responsible for reviewing the activities performed by the Trustee
as a
person “performing a servicing function” under the Pooling and Servicing
Agreement, and based on my knowledge and the compliance review conducted
in preparing the Servicing Assessment and except as disclosed in
the
Servicing Assessment or the Attestation Report, the Trustee has fulfilled
its obligations under the Pooling and Servicing Agreement;
and
|
R-2-1
|
(e)
|
The
Servicing Assessment and Attestation Report required to be provided
by the
Trustee and by Subcontractor, if any, pursuant to the Pooling and
Servicing Agreement, have been provided to the Servicer and the
Depositor. Any material instances of noncompliance described in
such reports have been disclosed to the Servicer and the
Depositor. Any material instance of noncompliance with the
Servicing Criteria has been disclosed in such
reports.
|
Date: | |||
|
By:
|
||
Name: | |||
Title: | |||
R-2-2
EXHIBIT
S
FORM
OF
SERVICING CRITERIA TO BE ADDRESSED IN
ASSESSMENT
OF COMPLIANCE STATEMENT
Where
there are multiple checks for criteria the attesting party will identify in
their management assertion that they are attesting only to the portion of the
distribution chain they are responsible for in the related transaction
agreements.
Reg
AB
Reference
|
Servicing
Criteria
|
Servicer
|
Trustee
|
Notes
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
X
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
X
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the Pool Assets are maintained.
|
NA
|
||
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
X
|
S-1
Reg
AB
Reference
|
Servicing
Criteria
|
Primary
Servicer
|
Trustee
|
Notes
|
1122(d)(2)(i)
|
Payments
on pool assets are deposited into the appropriate custodial bank
accounts
and related bank clearing accounts no more than two business days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
X
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
X
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
||
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of over collateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
X
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
X
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
||
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
X
|
S-2
Reg
AB
Reference
|
Servicing
Criteria
|
Servicer
|
Trustee
|
Notes
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of Pool Assets serviced by the
Servicer.
|
X
|
X
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
X
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
X
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
X
|
X
|
S-3
EXHIBIT
T
[FORM
OF]
LIST OF ITEM 1119 PARTIES
ASSET
BACKED CERTIFICATES
Series
200_-__
[Date]
Party
|
Contact
Information
|
T-1
EXHIBIT
U
[FORM
OF]
XXXXXXXX-XXXXX CERTIFICATION
(Replacement
of Servicer)
The
undersigned Servicer hereby
certifies to the Depositor and its officers, directors and Affiliates
(collectively, the “Certification Parties”) as follows, with the knowledge and
intent that the Certification Parties will rely on this Certification in
connection with the certification concerning the Trust Fund to be signed by
an
officer of the Depositor and submitted to the Securities and Exchange Commission
pursuant to the Xxxxxxxx-Xxxxx Act of 2002:
1. I
have reviewed the servicer compliance statement of the Servicer provided in
accordance with Item 1123 of Regulation AB (the “Compliance Statement”), the
report on assessment of the Servicer’s compliance with the servicing criteria
set forth in Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided
in accordance with Rules 13a-18 and 15d-18 under Securities Exchange Act of
1934, as amended (the “Exchange Act”) and Item 1122 of Regulation AB (the
“Servicing Assessment”), the registered public accounting firm’s attestation
report provided in accordance with Rules 13a-18 and 15d-18 under the Exchange
Act and Section 1122(b) of Regulation AB (the “Attestation Report”), and all
servicing reports, officer’s certificates and other information relating to the
servicing of the Mortgage Loans by the Servicer during 200[ ] that were
delivered by the Servicer to the Trustee pursuant to the Agreement
(collectively, the “Servicing Information”);
2. Based
on my knowledge, the Servicing Information, taken as a whole, does not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in the light of the circumstances under
which such statements were made, not misleading with respect to the period
of
time covered by the Servicing Information;
3. Based
on my knowledge, all of the Servicing Information required to be provided by
the
Servicer under the Agreement has been provided to the Depositor or the Trustee,
as applicable;
4. I
am responsible for reviewing the activities performed by the Servicer as
servicer under the Servicing Agreement (the “Pooling and Servicing Agreement”)
relating to the above-referenced Series, among IndyMac MBS, Inc., as Depositor,
IndyMac Bank, F.S.B., as Seller and Servicer, and Deutsche Bank National Trust
Company, as Trustee and based on my knowledge and the compliance review
conducted in preparing the Compliance Statement and except as disclosed in
the
Compliance Statement, the Pooling and Servicing Assessment or the Attestation
Report, the Servicer has fulfilled its obligations under the Agreement in all
material respects; and
5. The
Compliance Statement required to be delivered by the Servicer pursuant to the
Pooling and Servicing Agreement, and the Servicing Assessment and Attestation
Report required to be provided by the Servicer and by any Reporting
Subcontractor pursuant to the Agreement, have been provided to the
Depositor. Any material instances of noncompliance described in such
reports have been
U-1
disclosed
to the Depositor. Any material instance of noncompliance with the
Servicing Criteria has been disclosed in such reports.
[SERVICER] | |||
|
By:
|
||
Name: | |||
Title: | |||
Date: |
U-1