INDYMAC MBS, INC., Depositor INDYMAC BANK, F.S.B., Seller and Servicer And DEUTSCHE BANK NATIONAL TRUST COMPANY Trustee POOLING AND SERVICING AGREEMENT DATED AS OF SEPTEMBER 1, 2006 INDYMAC RESIDENTIAL MORTGAGE-BACKED TRUST, SERIES 2006-L3 RESIDENTIAL...
INDYMAC
MBS, INC.,
Depositor
INDYMAC
BANK, F.S.B.,
Seller
and Servicer
And
DEUTSCHE
BANK NATIONAL TRUST COMPANY
Trustee
DATED
AS
OF SEPTEMBER 1, 2006
______________________________
INDYMAC
RESIDENTIAL MORTGAGE-BACKED TRUST, SERIES 0000-X0
XXXXXXXXXXX
MORTGAGE-BACKED CERTIFICATES, SERIES 2006-L3
Table
of Contents
ARTICLE
I
DEFINITIONS
|
Section
1.01.
|
Defined
Terms.
|
|
Section
1.02.
|
Allocation
of Certain Interest Shortfalls.
|
|
Section
1.03.
|
Accounting.
|
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
|
Section
2.01.
|
Conveyance
of Mortgage Loans.
|
|
Section
2.02.
|
Acceptance
by Trustee.
|
|
Section
2.03.
|
Repurchase
or Substitution of Mortgage Loans by the Seller.
|
|
Section
2.04.
|
[Reserved].
|
|
Section
2.05.
|
Representations,
Warranties and Covenants of the Servicer.
|
|
Section
2.06.
|
Representations
and Warranties of the Depositor.
|
|
Section
2.07.
|
Issuance
of Certificates.
|
|
Section
2.08.
|
Conveyance
of REMIC 1 Regular Interests and Acceptance of REMIC 2 by
Trustee.
|
|
Section
2.09.
|
Purposes
and Powers of the Trust.
|
ARTICLE
III
ADMINISTRATION
AND SERVICING OF THE MORTGAGE LOANS
|
Section
3.01.
|
Servicer
to Act as Servicer.
|
|
Section
3.02.
|
Sub-Servicing
Agreements Between Servicer and Sub-Servicers; Special
Servicing.
|
|
Section
3.03.
|
Successor
Sub-Servicers.
|
|
Section
3.04.
|
Liability
of the Servicer.
|
|
Section
3.05.
|
No
Contractual Relationship Between Sub-Servicers and the Trustee or
Certificateholders.
|
|
Section
3.06.
|
Assumption
or Termination of Sub-Servicing Agreements by Trustee.
|
|
Section
3.07.
|
Collection
of Certain Mortgage Loan Payments.
|
|
Section
3.08.
|
Sub-Servicing
Accounts.
|
|
Section
3.09.
|
Collection
of Taxes, Assessments and Similar Items; Servicing
Accounts.
|
|
Section
3.10.
|
Certificate
Account; Distribution Account.
|
|
Section
3.11.
|
Withdrawals
from the Certificate Account and Distribution Account.
|
|
Section
3.12.
|
Investment
of Funds in the Certificate Account and the Distribution
Account.
|
|
Section
3.13.
|
[Reserved].
|
|
Section
3.14.
|
Maintenance
of Errors and Omissions and Fidelity Coverage.
|
|
Section
3.15.
|
Enforcement
of Due-On-Sale Clauses; Assumption Agreements.
|
|
Section
3.16.
|
Realization
Upon Defaulted Mortgage Loans.
|
|
Section
3.17.
|
Trustee
to Cooperate; Release of Mortgage Files.
|
|
Section
3.18.
|
Servicing
Compensation.
|
|
Section
3.19.
|
Reports
to the Trustee; Certificate Account Statements.
|
|
Section
3.20.
|
Statement
as to Compliance.
|
|
Section
3.21.
|
Assessments
of Compliance and Attestation Reports.
|
|
Section
3.22.
|
Commission
Reporting.
|
|
Section
3.23.
|
Reserved.
|
|
Section
3.24.
|
Access
to Certain Documentation.
|
|
Section
3.25.
|
Title,
Maintenance and Disposition of REO Property.
|
|
Section
3.26.
|
Obligations
of the Servicer in Respect of Prepayment Interest
Shortfalls.
|
|
Section
3.27.
|
[Reserved].
|
|
Section
3.28.
|
Obligations
of the Servicer in Respect of Mortgage Rates and Monthly
Payments.
|
|
Section
3.29.
|
Excess
Reserve Fund Account.
|
| Section 3.30. | Prepayment Charges. |
ARTICLE
IV
FLOW
OF
FUNDS
|
Section
4.01.
|
Distributions.
|
|
Section
4.02.
|
Statements.
|
|
Section
4.03.
|
Remittance
Reports; Advances.
|
|
Section
4.04.
|
Distributions
on the REMIC Regular Interests.
|
|
Section
4.05.
|
Allocation
of Realized Losses.
|
|
Section
4.06.
|
The
Policy.
|
ARTICLE
V
THE
CERTIFICATES
|
Section
5.01.
|
The
Certificates.
|
|
Section
5.02.
|
Registration
of Transfer and Exchange of Certificates.
|
|
Section
5.03.
|
Mutilated,
Destroyed, Lost or Stolen Certificates.
|
|
Section
5.04.
|
Persons
Deemed Owners.
|
|
Section
5.05.
|
Appointment
of Paying Agent.
|
ARTICLE
VI
THE
SERVICER AND THE DEPOSITOR
|
Section
6.01.
|
Liability
of the Servicer and the Depositor.
|
|
Section
6.02.
|
Merger
or Consolidation of, or Assumption of the Obligations of, the Servicer
or
the Depositor.
|
|
Section
6.03.
|
Limitation
on Liability of the Servicer and Others.
|
|
Section
6.04.
|
Servicer
Not to Resign.
|
|
Section
6.05.
|
Delegation
of Duties.
|
|
Section
6.06.
|
Inspection.
|
ARTICLE
VII
DEFAULT
|
Section
7.01.
|
Servicer
Events of Termination.
|
|
Section
7.02.
|
Trustee
to Act; Appointment of Successor.
|
|
Section
7.03.
|
Waiver
of Defaults.
|
|
Section
7.04.
|
Notification
to Certificateholders.
|
|
Section
7.05.
|
Survivability
of Servicer Liabilities.
|
ARTICLE
VIII
THE
TRUSTEE
|
Section
8.01.
|
Duties
of Trustee.
|
|
Section
8.02.
|
Certain
Matters Affecting the Trustee.
|
|
Section
8.03.
|
Trustee
Not Liable for Certificates or Mortgage Loans.
|
|
Section
8.04.
|
Trustee
May Own Certificates.
|
|
Section
8.05.
|
Trustee
Fee and Expenses.
|
|
Section
8.06.
|
Eligibility
Requirements for Trustee.
|
|
Section
8.07.
|
Resignation
or Removal of Trustee.
|
|
Section
8.08.
|
Successor
Trustee.
|
|
Section
8.09.
|
Merger
or Consolidation of Trustee.
|
|
Section
8.10.
|
Appointment
of Co-Trustee or Separate Trustee.
|
|
Section
8.11.
|
Limitation
of Liability.
|
|
Section
8.12.
|
Trustee
May Enforce Claims Without Possession of Certificates.
|
|
Section
8.13.
|
Suits
for Enforcement.
|
|
Section
8.14.
|
Waiver
of Bond Requirement.
|
|
Section
8.15.
|
Waiver
of Inventory, Accounting and Appraisal Requirement.
|
|
Section
8.16.
|
Reserved.
|
|
Section
8.17.
|
Access
to Records of Trustee.
|
ARTICLE
IX
REMIC
ADMINISTRATION
|
Section
9.01.
|
REMIC
Administration.
|
|
Section
9.02.
|
Prohibited
Transactions and Activities.
|
|
Section
9.03.
|
Indemnification
with respect to Certain Taxes and Loss of REMIC Status.
|
ARTICLE
X
TERMINATION
|
Section
10.01.
|
Termination.
|
|
Section
10.02.
|
Additional
Termination Requirements.
|
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
|
Section
11.01.
|
Amendment.
|
|
Section
11.02.
|
Recordation
of Agreement; Counterparts.
|
|
Section
11.03.
|
Limitation
on Rights of Certificateholders.
|
|
Section
11.04.
|
Governing
Law; Jurisdiction.
|
|
Section
11.05.
|
Notices.
|
|
Section
11.06.
|
Severability
of Provisions.
|
|
Section
11.07.
|
Article
and Section References.
|
|
Section
11.08.
|
Notice
to the Rating Agencies and the Certificate Insurer.
|
|
Section
11.09.
|
Further
Assurances.
|
|
Section
11.10.
|
Benefits
of Agreement.
|
|
Section
11.11.
|
Acts
of Certificateholders.
|
|
Section
11.12.
|
Grant
of Security Interest.
|
|
Section
11.13.
|
Official
Record.
|
|
Section
11.14.
|
Protection
of Assets.
|
|
Section
11.15.
|
Qualifying
Special Purpose Entity.
|
|
Section
11.16.
|
Rights
of the Certificate Insurer.
|
EXHIBITS:
|
Exhibit
A-1
|
Form
of Class A Certificates
|
|
Exhibit
A-2
|
Form
of Class M Certificate
|
|
Exhibit
A-3
|
Form
of Class B Certificate
|
|
Exhibit
A-4
|
Form
of Class C Certificate
|
|
Exhibit
A-5
|
Form
of Class R Certificate
|
|
Exhibit
A-6
|
Form
of Class P Certificate
|
|
Exhibit
B
|
Copy
of Certificate Guaranty Insurance Policy with respect to the Insured
Certificates
|
|
Exhibit
C
|
Form
of Mortgage Loan Purchase Agreement
|
|
Exhibit
D
|
Mortgage
Loan Schedule
|
|
Exhibit
E
|
Form
of Request for Release of Documents
|
|
Exhibit
F-1
|
Form
of Trustee’s Initial Certification
|
|
Exhibit
F-2
|
Form
of Trustee’s Final Certification
|
|
Exhibit
F-3
|
Form
of Receipt of Mortgage Note
|
|
Exhibit
G
|
Reserved
|
|
Exhibit
H
|
Form
of Lost Note Affidavit
|
|
Exhibit
I
|
Form
of Certification with respect to ERISA and the Code
|
|
Exhibit
J
|
Form
of Investment Letter
|
|
Exhibit
K
|
Reserved
|
|
Exhibit
L
|
Form
of Transferor Certificate
|
|
Exhibit
M
|
Form
of Class R Certificate Transfer Affidavit
|
|
Exhibit
N
|
Reserved
|
|
Exhibit
O-1
|
Depositor
Certification
|
|
Exhibit
O-2
|
Trustee
Certification
|
|
Exhibit
P
|
Reserved
|
|
Exhibit
Q
|
Reserved
|
|
Exhibit
R
|
Servicing
Criteria
|
|
Exhibit
S
|
Form
10-D, Form 8-K and Form 10-K Reporting Responsibility
|
This
Pooling and Servicing Agreement is dated as of September 1, 2006 (the
“Agreement”), among INDYMAC MBS, INC., as depositor (the “Depositor”), INDYMAC
BANK, F.S.B., as seller and servicer (the “Seller” and “Servicer”, as
applicable) and DEUTSCHE BANK NATIONAL TRUST COMPANY, as trustee (the
“Trustee”).
PRELIMINARY
STATEMENT:
The
Depositor intends to sell pass-through certificates (collectively, the
“Certificates”), to be issued hereunder in multiple classes, which Certificates
in the aggregate will evidence the entire beneficial ownership interest in
the
Trust Fund created hereunder. The Certificates will consist of eight classes
of
certificates, designated as (i) the Class A-1 Certificates, (ii) the Class
A-2
Certificates, (iii) the Class A-3 Certificates, (iv) the Class M Certificates,
(v) the Class B Certificates, (vi) the Class C Certificates, (vii) the Class
P
Certificates and (viii) the Class R Certificates.
REMIC
1
As
provided herein, the Trustee shall make an election to treat the segregated
pool
of assets consisting of the Mortgage Loans and certain other related assets
subject to this Agreement (exclusive of the Excess Reserve Fund Account and
the
other assets identified as excluded in accordance with the definition of “REMIC
1” herein) as a real estate mortgage investment conduit (a “REMIC”) for federal
income tax purposes, and such segregated pool of assets will be designated
as
“REMIC 1.” The Class R-1 Interest represents the sole class of “residual
interests” in REMIC 1 for purposes of the REMIC Provisions.
The
following table irrevocably sets forth the designation, the Uncertificated
REMIC
1 Pass-Through Rate, the initial Uncertificated Principal Balance, and for
purposes of satisfying Treasury regulation Section 1.860G-1(a)(4)(iii), the
“latest possible maturity date” for each of the REMIC 1 Regular Interests. None
of the REMIC 1 Regular Interests will be certificated.
|
Designation
|
Uncertificated
REMIC 1
Pass-Through
Rate
|
Initial
Uncertificated
Principal
Balance
|
Latest
Possible
Maturity
Date(1)
|
|
LT1AA
|
Variable(2)
|
$
165,478,105.44
|
April
25, 2012
|
|
LT1A1
|
Variable(2)
|
$
968,290.00
|
April
25, 2012
|
|
LT1A2
|
Variable(2)
|
$
490,450.00
|
April
25, 2012
|
|
LT1A3
|
Variable(2)
|
$
207,860.00
|
April
25, 2012
|
|
LT1M
|
Variable(2)
|
$
7,590.00
|
April
25, 2012
|
|
LT1B
|
Variable(2)
|
$ 14,362.09
|
April
25, 2012
|
|
LT1ZZ
|
Variable(2)
|
$ 1,688,552.10
|
April
25, 2012
|
|
LT1P
|
Variable(2)
|
$
100.00
|
April
25, 2012
|
___________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the
earlier of (a) April 25, 2012 and (b) the expiration of 21 years
from the
death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx,
the
late ambassador of the United States to the Court of St. James’s, living
on the date hereof has been designated as the “latest possible maturity
date” for each Uncertificated REMIC 1 Regular
Interest.
|
(2)
Calculated
in accordance with the definition of “Uncertificated REMIC 1 Pass-Through Rate”
herein.
REMIC
2
As
provided herein, the Trustee shall make an election to treat the segregated
pool
of assets consisting of the REMIC 1 Regular Interests as a REMIC for federal
income tax purposes, and such segregated pool of assets will be designated
as
“REMIC 2.” The Class R-2 Interest represents the sole class of “residual
interests” in REMIC 2 for purposes of the REMIC Provisions.
The
following table sets forth (or describes) the Class designation, Pass-Through
Rate and initial Certificate Principal Balance for each Class of Certificates
that represents one or more of the “regular interests” in REMIC 2 created
hereunder:
|
Designation
|
Pass-Through
Rate
|
Initial
Certificate
Principal
Balance
|
Latest
Possible
Maturity
Date(1)
|
|
Class
A-1
|
Variable(2)
|
$
96,829,000.00
|
April
25, 2012
|
|
Class
A-2
|
Variable(2)
|
$
49,045,000.00
|
April
25, 2012
|
|
Class
A-3
|
Variable(2)
|
$
20,786,000.00
|
April
25, 2012
|
|
Class
M
|
Variable(2)
|
$
759,000.00
|
April
25, 2012
|
|
Class
B
|
Variable(2)
|
$
1,436,209.00
|
April
25, 2012
|
|
Class
C
|
Variable(3)
|
$
0.63
|
April
25, 2012
|
|
Class
P
|
NA
|
$
100.00
|
April
25, 2012
|
__________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the
earlier of (a) April 25, 2012 and (b) the expiration of 21 years
from the
death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx,
the
late ambassador of the United States to the Court of St. James’s, living
on the date hereof has been designated as the “latest possible maturity
date” for each Class of Certificates that represents one or more of the
“regular interests” in REMIC 2.
|
(2)
Calculated
in accordance with the definition of “Pass-Through Rate” herein.
|
(3)
|
The
Class C Certificates will accrue interest at its variable Pass-Through
Rate on its uncertificated Notional Amount outstanding from time
to time
which shall equal the aggregate Uncertificated Principal Balance
of the
REMIC 1 Regular Interests (other than the REMIC 1 Regular Interest
LT1P).
The Class C Certificates will not accrue interest on its Certificate
Principal Balances.
|
As
of the
Cut-off Date, the Closing Date Mortgage Loans had an aggregate Stated Principal
Balance equal to $168,855,309.63.
In
consideration of the mutual agreements herein contained, the Depositor, the
Servicer and the Trustee agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.01. Defined
Terms.
Whenever
used in this Agreement or in the Preliminary Statement, the following words
and
phrases, unless the context otherwise requires, shall have the meanings
specified in this Article. Unless otherwise specified, all calculations in
respect of interest on the Class A Certificates and the Subordinated
Certificates shall be made on the basis of a 360-day year and the actual number
of days elapsed, and all other calculations of interest described herein shall
be made on the basis of a 360-day year consisting of twelve 30-day months.
The
Class P and Class R Certificates are not entitled to distributions in respect
of
interest and, accordingly, will not accrue interest.
“1933
Act”: The Securities Act of 1933, as amended.
“Account”:
Either of the Certificate Account or Distribution Account.
“Accrual
Period”: With respect to the Class A Certificates and the Subordinated
Certificates and each Distribution Date, the period commencing on the preceding
Distribution Date (or in the case of the first such Accrual Period, commencing
on the Closing Date) and ending on the day preceding the current Distribution
Date. With respect to the Class C Certificates and each Distribution Date,
the
calendar month prior to the month of such Distribution Date.
“Accrued
Certificate Interest”: With respect to the Class A Certificates, the
Subordinated Certificates and the Class C Certificates and any Distribution
Date, the amount of interest accrued during the related Accrual Period at the
related Pass-Through Rate on the Certificate Principal Balance (or Notional
Amount in the case of the Class C Certificates) of such Class immediately prior
to such Distribution Date, in each case, reduced by any Net Interest Shortfalls
allocated to such Class as set forth in Section 1.02.
“Adjustable-Rate
Mortgage Loan”: A Mortgage Loan which provides at any period during the life of
such loan for the adjustment of the Mortgage Rate payable in respect thereto.
The Adjustable-Rate Mortgage Loans are identified as such on the Mortgage Loan
Schedule.
“Adjustment
Date”: With respect to each Adjustable-Rate Mortgage Loan, each adjustment date
on which the Mortgage Rate of such Mortgage Loans may change pursuant to the
related Mortgage Note. The first Adjustment Date following the Cut-off Date
as
to each Adjustable-Rate Mortgage Loan is set forth in the Mortgage Loan
Schedule.
“Advance”:
As to any Mortgage Loan or REO Property, any advance made by the Servicer in
respect of any Distribution Date pursuant to Section 4.03.
“Adverse
REMIC Event”: As defined in Section 9.01 hereof.
“Affiliate”:
With respect to any Person, any other Person controlling, controlled by 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.
“Agreement”:
This Pooling and Servicing Agreement and all amendments hereof and supplements
hereto.
“Allocated
Realized Loss Amount”: With respect to any Distribution Date and any Class of
Subordinated Certificates, the sum of (i) the amount of any Realized Losses
allocated to such Class of Certificates on such Distribution Date pursuant
to
Section 4.05(b) and (ii) the amount of any Allocated Realized Loss Amount for
such Class of Certificates remaining unpaid on the preceding Distribution Date
minus the amount of the increase in the related Certificate Principal Balance
due to the receipt of Subsequent Recoveries as provided in Section
4.01.
“Applicable
Regulations”: As to any Mortgage Loan, all federal, state and local laws,
statutes, rules and regulations applicable thereto.
“Assignment”:
An assignment of Mortgage, notice of transfer or equivalent instrument, in
recordable form (excepting therefrom, if applicable, the mortgage recordation
information which has not been required pursuant to Section 2.01 hereof or
returned by the applicable recorder’s office), which is sufficient under the
laws of the jurisdiction wherein the related Mortgaged Property is located
to
reflect of record the sale of the Mortgage.
“Available
Funds”: With respect to any Distribution Date, an amount equal to the excess, if
any, of: (i) the sum of (a) the aggregate of the related Monthly Payments
received on or prior to the related Determination Date, including any Subsequent
Recoveries, (b) Liquidation Proceeds, Principal Prepayments and other
unscheduled recoveries of principal and interest in respect of the Mortgage
Loans during the related Prepayment Period, (c) the aggregate of any amounts
received in respect of a related REO Property withdrawn from any REO Account
and
deposited in the Certificate Account for such Distribution Date, (d) the
aggregate of any amounts deposited in the Certificate Account by the Servicer
in
respect of Prepayment Interest Shortfalls for such Distribution Date, (e) the
aggregate of any Advances made by the Servicer for such Distribution Date,
(f)
the aggregate of any related advances made by the Trustee for such Distribution
Date pursuant to Section 7.02 and (g) the amounts, if any, received pursuant
to
an Optional Termination; over (ii) the sum of (a) amounts reimbursable or
payable to the Servicer pursuant to Section 3.11(a) or Section 3.18 or to the
Trustee pursuant to Section 3.06 or Section 3.11(b), (b) amounts deposited
in
the Certificate Account or the Distribution Account pursuant to clauses (i)
(a)
through (i)(f) above, as the case may be, in error, (c) the Trustee Fee payable
from the Distribution Account pursuant to Section 4.01(a) and Section 8.05
and
(d) any indemnification payments or expense reimbursements made by the Trust
Fund pursuant to Section 8.05.
“Bankruptcy
Code”: The Bankruptcy Reform Act of 1978 (Title 11 of the United States Code),
as amended.
“Book-Entry
Certificate”: Any Certificate registered in the name of the Depository or its
nominee.
“Business
Day”: Any day other than a Saturday, a Sunday or a day on which banking or
savings institutions in the State of New York, the State of California or in
the
city in which the Corporate Trust Office of the Trustee is located are
authorized or obligated by law or executive order to be closed.
“Certificate”:
Any Regular Certificate or Class R Certificate.
“Certificate
Factor”: With respect to any Class of the Regular Certificates (other than the
Class C Certificates) as of any Distribution Date, a fraction, expressed as
a
decimal carried to six places, the numerator of which is the aggregate
Certificate Principal Balance of such Class of Certificates on such Distribution
Date (after giving effect to any distributions of principal and allocations
of
Realized Losses in reduction of the Certificate Principal Balance of the
Certificates to be made on such Distribution Date), and the denominator of
which
is the initial aggregate Certificate Principal Balance of such Class of
Certificates as of the Closing Date. With respect to the Class C Certificates
as
of any Distribution Date, a fraction, expressed as a decimal carried to six
places, the numerator of which is the aggregate Notional Amount of such Class
of
Certificates on such Distribution Date (after giving effect to reductions
thereof to be made on such Distribution Date due to reductions of the Pool
Balance by scheduled principal due during the related Remittance Period, to
the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period), and the denominator of which is the
initial aggregate Notional Amount of such Class of Certificates as of the
Closing Date.
“Certificateholder”:
The Person in whose name a Certificate is registered in the Certificate Register
(except that a Disqualified Organization or non-U.S. Person shall not be a
Holder of a Class R Certificate for any purpose hereof). Unless otherwise
specified herein, whenever reference is made herein to actions taken by the
Trustee on behalf of the Certificateholders or property held by the Trustee
for
the benefit of the Certificateholders, such reference shall be deemed and
construed as a reference to the Trustee acting on behalf of or for the benefit
of the Certificateholders.
“Certificate
Account”: The account or accounts created and maintained by the Servicer
pursuant to Section 3.10(a), which shall be entitled “Deutsche Bank National
Trust Company, as Trustee, in trust for registered Holders of IndyMac
Residential Mortgage-Backed Trust Certificates, Series 2006-L3,” which must be
an Eligible Account.
“Certificate
Insurer”: Ambac Assurance Corporation, a Wisconsin stock insurance corporation
or its successors in interest.
“Certificate
Insurer Default”: The existence and continuance of any of the following: (a) a
failure by the Certificate Insurer to make a payment required under the Policy
in accordance with its terms; or (b) the Certificate Insurer (i) files any
petition or commences any case or proceeding under any provision or chapter
of
the Bankruptcy Code or any other similar federal or state law relating to
insolvency, bankruptcy, rehabilitation, liquidation or reorganization, (ii)
makes a general assignment for the benefit of its creditors, or (iii) has an
order for relief entered against it under the Bankruptcy Code or any other
similar federal or state law relating to insolvency, bankruptcy, rehabilitation,
liquidation or reorganization which is final and nonappealable; or (c) a court
of competent jurisdiction, the New York insurance department or other competent
regulatory authority enters a final and nonappealable order, judgment or decree
(i) appointing a custodian, trustee, agent or receiver for the Certificate
Insurer or for all or any material portion of its property or (ii) authorizing
the taking of possession by a custodian, trustee, agent or receiver of the
Certificate Insurer (or the taking of possession of all or any material portion
of the property of the Certificate Insurer).
“Certificate
Margin”: With respect to the Class A Certificates and each Class of Subordinated
Certificates and the Accrual Period for any Distribution Date, the margin
indicated as follows:
|
Class
|
Certificate
Margin (%)
(Accrual
Periods for Distribution Dates up to and including the Optional
Termination Date)
|
Certificate
Margin (%) (Accrual Periods for Distribution Dates that occur after
the
Optional Termination Date)
|
|
Class
A-1 Certificates
|
0.090%
|
0.180%
|
|
Class
A-2 Certificates
|
0.170%
|
0.340%
|
|
Class
A-3 Certificates
|
0.230%
|
0.460%
|
|
Class
M Certificates
|
1.500%
|
2.250%
|
|
Class
B Certificates
|
1.500%
|
2.250%
|
“Certificate
Owner”: With respect to each Book-Entry Certificate, any beneficial owner
thereof.
“Certificate
Principal Balance”: With respect to any Class of Regular Certificates (other
than the Class C and Class P Certificates) immediately prior to any Distribution
Date, an amount equal to the initial Certificate Principal Balance thereof
(A)
reduced by the sum of all amounts actually distributed in respect of principal
of such Class and (B) further reduced, in the case of a Subordinated
Certificate, by Realized Losses allocated thereto on all prior Distribution
Dates plus, with respect to the Subordinated Certificates, any increase in
the
Certificate Principal Balance of such Certificate due to receipt of Subsequent
Recoveries pursuant to Section 4.01 (or, in the case of any date of
determination up to and including the first Distribution Date, the initial
Certificate Principal Balance of such Certificate, as stated on the face
thereof). With respect to the Class C Certificates as of any date of
determination, an amount equal to the excess, if any, of (A) the then aggregate
Uncertificated Principal Balances of the REMIC 1 Regular Interests over (B)
the
then aggregate Certificate Principal Balance of the Class A Certificates, the
Class P Certificates and the Subordinated Certificates then
outstanding.
“Certificate
Register” and “Certificate Registrar”: The register maintained and registrar
appointed pursuant to Section 5.02 hereof.
“Class”:
Collectively, Certificates which have the same priority of payment and bear
the
same class designation and the form of which is identical except for variation
in the Percentage Interest evidenced thereby.
“Class
A
Certificate”: Any one of the Class A-1, Class A-2 or Class A-3 Certificates
executed by the Trustee, and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit A-1 and
evidencing (i) a Regular Interest in REMIC 2, and (ii) the right to receive
the
Net WAC Rate Carryover Amount.
“Class
A
Principal Distribution Amount”: With respect to any Distribution Date, the
excess, if any, of (x) the Certificate Principal Balance of the Class A
Certificates immediately prior to such Distribution Date over (y) the lesser
of
(A) the product of (i) 94.40% and (ii) the aggregate Stated Principal Balance
of
the Mortgage Loans as of the last day of the related Remittance Period (after
giving effect to scheduled payments of principal due during the related
Remittance Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) and
(B)
an amount, not less than zero, the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Remittance Period (after giving
effect to scheduled payments of principal due during the related Remittance
Period, to the extent received or advanced, and unscheduled collections of
principal received during the related Prepayment Period) minus the
Overcollateralization Floor Amount.
“Class
A
Overcollateralization Deficiency Amount”: With respect to any Distribution Date,
the excess of (i) the Certificate Principal Balance of the Class A Certificates
after giving effect to distributions of principal to be made on such
Distribution Date (without regard to any payments of principal under the Policy)
over (ii) the aggregate Stated Principal Balance of the Mortgage Loans on the
last day of the immediately preceding Remittance Period (after giving effect
to
scheduled payments of principal due during the related Remittance Period, to
the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period).
“Class
B
Certificate”: Any one of the Class B Certificates executed by the Trustee, and
authenticated and delivered by the Certificate Registrar, substantially in
the
form annexed hereto as Exhibit A-3, and evidencing (i) a Regular Interest in
REMIC 2, and (ii) the right to receive the Net WAC Rate Carryover
Amount.
“Class
B
Principal Distribution Amount”: With respect to any Distribution Date, the
excess, if any, of (x) the sum of (i) the Certificate Principal Balance of
the
Class A Certificates (after taking into account the payment of the Class A
Principal Distribution Amount on such Distribution Date), (ii) the Certificate
Principal Balance of the Class M Certificates (after taking into account the
payment of the Class M Principal Distribution Amount on such Distribution Date),
and (iii) the Certificate Principal Balance of the Class B Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 97.00% and (ii) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Remittance Period (after giving
effect to scheduled payments of principal due during the related Remittance
Period, to the extent received or advanced, and unscheduled collections of
principal received during the related Prepayment Period) and (B) an amount,
not
less than zero, the aggregate Stated Principal Balance of the Mortgage Loans
as
of the last day of the related Remittance Period (after giving effect to
scheduled payments of principal due during the related Remittance Period, to
the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) minus the Overcollateralization Floor
Amount.
“Class
C
Certificate”: Any one of the Class C Certificates executed by the Trustee, and
authenticated and delivered by the Certificate Registrar, substantially in
the
form annexed hereto as Exhibit A-4, and evidencing a Regular Interest in REMIC
2.
“Class
M
Certificate”: Any one of the Class M Certificates executed by the Trustee, and
authenticated and delivered by the Certificate Registrar, substantially in
the
form annexed hereto as Exhibit A-2, and evidencing (i) a Regular Interest in
REMIC 2 and (ii) the right to receive the Net WAC Rate Carryover
Amount.
“Class
M
Principal Distribution Amount”: With respect to any Distribution Date, the
excess, if any, of (x) the sum of (i) the Certificate Principal Balance of
the
Class A Certificates (after taking into account the payment of the Class A
Principal Distribution Amount on such Distribution Date) and (ii) the
Certificate Principal Balance of the Class M Certificates immediately prior to
such Distribution Date over (y) the lesser of (A) the product of (i) 95.30%
and
(ii) the aggregate Stated Principal Balance of the Mortgage Loans as of the
last
day of the related Remittance Period (after giving effect to scheduled payments
of principal due during the related Remittance Period, to the extent received
or
advanced, and unscheduled collections of principal received during the related
Prepayment Period) and (B) an amount, not less than zero, the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related
Remittance Period (after giving effect to scheduled payments of principal due
during the related Remittance Period, to the extent received or advanced, and
unscheduled collections of principal received during the related Prepayment
Period) minus the Overcollateralization Floor Amount.
“Class
P
Certificate”: Any one of the Class P Certificates executed by the Trustee, and
authenticated and delivered by the Certificate Registrar, substantially in
the
form annexed hereto as Exhibit A-6, and evidencing a Regular Interest in REMIC
2.
“Class
R
Certificate”: Any one of the Class R Certificates executed by the Trustee, and
authenticated and delivered by the Certificate Registrar, substantially in
the
form annexed hereto as Exhibit A-5 and evidencing the ownership of the Class
R-1
Interest and the Class R-2 Interest.
“Class
R-1 Interest”: The uncertificated Residual Interest in REMIC 1.
“Class
R-2 Interest”: The uncertificated Residual Interest in REMIC 2.
“Close
of
Business”: As used herein, with respect to any Business Day, 5:00 p.m. (New York
time).
“Closing
Date”: September 25, 2006.
“Code”:
The Internal Revenue Code of 1986, as amended.
“Compensating
Interest”: As defined in Section 3.26 hereof.
“Corporate
Trust Office”: The principal corporate trust office of the Trustee at which at
any particular time its corporate trust business in connection with this
Agreement shall be administered, which office at the date of the execution
of
this instrument is located at 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx, XX
00000-0000, Attention: Trust Administration IN06L3 (IndyMac Residential
Mortgage-Backed Trust, Series 2006-L3) and which is the address to which notices
and correspondence with the Trustee should be directed or, with respect to
the
Certificate Registrar, the designated office for presentment and surrender
of
Certificates for registration of transfer or exchange thereof located at DB
Services Tennessee, 000 Xxxxxxxxx Xxxx Xxxx, Xxxxxxxxx, XX 00000, Attention:
Transfer Unit.
“Corresponding
Certificate”: With respect to each REMIC 2 Regular Interest, as
follows:
|
REMIC
1 Regular Interest
|
Class
|
|
REMIC
1 Regular Interest LT1A1
|
A-1
|
|
REMIC
1 Regular Interest LT1A2
|
A-2
|
|
REMIC
1 Regular Interest LT1A3
|
A-3
|
|
REMIC
1 Regular Interest LT1M
|
M
|
|
REMIC
1 Regular Interest LT1B
|
B
|
|
REMIC
1 Regular Interest LT1P
|
P
|
“Credit
Enhancement Percentage”: For any Distribution Date, the percentage equivalent of
a fraction, the numerator of which is (x) the aggregate Certificate Principal
Balance of the Subordinated Certificates and the Class C Certificates, and
the
denominator of which is (y) the aggregate Stated Principal Balance of the
Mortgage Loans, calculated prior to taking into account distributions of
principal on the Mortgage Loans and distribution of the Principal Distribution
Amount to the Holders of the Certificates then entitled to distributions of
principal on such Distribution Date.
“Custodian”:
Deutsche Bank National Trust Company, as custodian of the Mortgage Files, and
any successor thereto.
“Cut-off
Date”: With respect to each Mortgage Loan, September 1, 2006. With respect to
all Qualified Substitute Mortgage Loans, their respective dates of substitution.
References herein to the “Cut-off Date,” when used with respect to more than one
Mortgage Loan, shall be to the respective Cut-off Dates for such Mortgage
Loans.
“Debt
Service Reduction”: With respect to any Mortgage Loan, a reduction in the
scheduled Monthly Payment for such Mortgage Loan by a court of competent
jurisdiction in a proceeding under the Bankruptcy Code, except such a reduction
resulting from a Deficient Valuation.
“Deficiency
Amount”: With respect to any Distribution Date and the Insured Certificates, an
amount, if any, equal to the sum of: (i) the aggregate amount by which the
Accrued Certificate Interest allocable to the Insured Certificates for such
Distribution Date exceeds the Interest Remittance Amount available on such
Distribution Date to distribute to the Insured Certificates in accordance with
Section 4.01(a)(ii); and (ii) (a) with respect to any Distribution Date that
is
not the Final Distribution Date, the Class A Overcollateralization Deficiency
Amount, if any, for such Distribution Date and (b) on the Final Distribution
Date, the Certificate Principal Balance of the Insured Certificates (after
giving effect to all distributions of Available Funds).
“Deficient
Valuation”: With respect to any Mortgage Loan, a valuation of the related
Mortgaged Property by a court of competent jurisdiction in an amount less than
the then outstanding Stated Principal Balance of the Mortgage Loan, which
valuation results from a proceeding initiated under the Bankruptcy
Code.
“Definitive
Certificates”: As defined in Section 5.02(c) hereof.
“Deleted
Mortgage Loan”: A Mortgage Loan replaced or to be replaced by one or more
Qualified Substitute Mortgage Loans.
“Delinquency
Percentage”: For any Distribution Date, the percentage obtained by dividing (x)
the aggregate Stated Principal Balance of Mortgage Loans 60 days Delinquent
or
more or that are secured by Mortgaged Properties that have become REO Properties
by (y) the aggregate Stated Principal Balance of the Mortgage Loans, in each
case, as of the last day of the previous calendar month.
“Delinquent”:
A Mortgage Loan is “Delinquent” if any Monthly Payment due on a Due Date is not
made by the Close of Business on the next scheduled Due Date for such Mortgage
Loan. A Mortgage Loan is “30 days Delinquent” if such Monthly Payment has not
been received by the Close of Business on the corresponding day of the month
immediately succeeding the month in which such Monthly Payment was due. The
determination of whether a Mortgage Loan is “60 days Delinquent”, “90 days
Delinquent”, etc. shall be made in a like manner.
“Depositor”:
IndyMac MBS, Inc., a Delaware corporation, or any successor in
interest.
“Depository”:
The initial Depository shall be The Depository Trust Company, whose nominee
is
Cede & Co., or any other organization registered as a “clearing agency”
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended.
The
Depository shall initially be the registered Holder of the Book-Entry
Certificates. The Depository shall at all times be a “clearing corporation” as
defined in Section 8-102(5) of the Uniform Commercial Code of the State of
New
York.
“Depository
Participant”: A broker, dealer, bank or other financial institution or other
person for whom from time to time a Depository effects book-entry transfers
and
pledges of securities deposited with the Depository.
“Determination
Date”: With respect to any Distribution Date, the 18th
day of
the calendar month in which such Distribution Date occurs, or, if such
18th
day is
not a Business Day, the Business Day immediately succeeding such 18th
day,
except that if the succeeding Business Day is less than two Business Days before
the related Distribution Date, then the Determination Date shall be the Business
Day preceding the 18th
day of
the month.
“Directly
Operate”: With respect to any REO Property, the furnishing or rendering of
services to the tenants thereof, the management or operation of such REO
Property, the holding of such REO Property primarily for sale to customers,
the
performance of any construction work thereon or any use of such REO Property
in
a trade or business conducted by the REMIC other than through an Independent
Contractor; provided, however, that the Servicer on behalf of the Trustee shall
not be considered to Directly Operate an REO Property solely because the
Servicer on behalf of the Trustee establishes rental terms, chooses tenants,
enters into or renews leases, deals with taxes and insurance, or makes decisions
as to repairs or capital expenditures with respect to such REO
Property.
“Disqualified
Organization”: A “disqualified organization” under Section 860E of the Code,
which as of the Closing Date is any of: (i) the United States, any state or
political subdivision thereof, any foreign government, any international
organization, or any agency or instrumentality of any of the foregoing, (ii)
any
organization (other than a cooperative described in Section 521 of the Code)
which is exempt from the tax imposed by Chapter 1 of the Code unless such
organization is subject to the tax imposed by Section 511 of the Code, (iii)
any
organization described in Section 1381(a)(2)(C) of the Code, (iv) an “electing
large partnership” within the meaning of Section 775 of the Code or (v) any
other Person so designated by the Depositor based upon an Opinion of Counsel
provided by nationally recognized counsel to the Depositor that the holding
of
an ownership interest in a Class R Certificate by such Person may cause the
Trust Fund or any Person having an ownership interest in any Class of
Certificates (other than such Person) to incur liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the transfer
of an ownership interest in the Class R Certificate to such Person. 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, a majority of its board of directors is not selected by a
governmental unit. The term “United States”, “state” and “international
organizations” shall have the meanings set forth in Section 7701 of the
Code.
“Distribution
Account”: The trust account or accounts created and maintained by the Trustee
pursuant to Section 3.10(b) which shall be entitled “Distribution Account,
Deutsche Bank National Trust Company, as Trustee, in trust for registered
Holders of IndyMac Residential Mortgage-Backed Trust Certificates, Series
2006-L3,” and which must be an Eligible Account.
“Distribution
Date”: The 25th
day of
each month, or if such 25th
day is
not a Business Day, the Business Day immediately following such 25th
day,
commencing in October 2006.
“Due
Date”: With respect to each Mortgage Loan and any Distribution Date, the first
day of the calendar month in which such Distribution Date occurs on which the
Monthly Payment for such Mortgage Loan was due (or, in the case of any Mortgage
Loan under the terms of which the Monthly Payment for such Mortgage Loan was
due
on a day other than the first day of the calendar month in which such
Distribution Date occurs, the day during the related Remittance Period on which
such Monthly Payment was due) exclusive of any days of grace.
“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 short-term
unsecured debt obligations of such holding company) are rated “P-1” by Moody’s
and “A-1” by S&P (or comparable ratings if Moody’s and S&P are not the
Rating Agencies) at the time any amounts are held on deposit therein, (ii)
with
the prior written consent of the Certificate Insurer, an account or accounts
the
deposits in which are fully insured by the FDIC (to the limits established
by
such corporation), the uninsured deposits in which account are otherwise secured
such that, as evidenced by an Opinion of Counsel delivered to the Trustee and
to
each Rating Agency, the Certificateholders will have a claim with respect to
the
funds in such account or a perfected first priority security interest against
such 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 with which such account is maintained, (iii) a trust
account or accounts maintained with the trust department of a federal or state
chartered depository institution, national banking association or trust company
acting in its fiduciary capacity or (iv) with the prior written consent of
the
Certificate Insurer, an account otherwise acceptable to each Rating Agency
without reduction or withdrawal of their then current ratings of any Class
of
Certificates (without regard to the Policy) as evidenced by a letter from each
Rating Agency to the Trustee. Eligible Accounts may bear interest.
“ERISA”:
The Employee Retirement Income Security Act of 1974, as amended.
“Escrow
Payments”: The amounts constituting ground rents, taxes, assessments, water
rates, fire and other payments required to be escrowed by the Mortgagor with
the
mortgagee pursuant to any Mortgage Loan.
“Estate
in Real Property”: A fee simple estate in a parcel of real
property.
“Excess
Overcollateralization Amount”: With respect to any Distribution Date, the
excess, if any, of (i) the Overcollateralized Amount for such Distribution
Date
(assuming that 100% of the Principal Remittance Amount is applied as a principal
payment on such Distribution Date) over (ii) the Overcollateralization Target
Amount for such Distribution Date.
“Excess
Reserve Fund Account”: The reserve fund designated, established and maintained
pursuant to Section 3.27.
“Expense
Adjusted Maximum Mortgage Rate”: With respect to any Adjustable-Rate Mortgage
Loan, the then applicable Maximum Mortgage Rate thereon minus the Expense Fee
Rate. With respect to any Fixed-Rate Mortgage Loan, the Expense Adjusted
Mortgage Rate thereon.
“Expense
Adjusted Mortgage Rate”: With respect to any Mortgage Loan or REO Property, the
then applicable Mortgage Rate thereon minus the Expense Fee Rate.
“Expense
Amount”: For any Distribution Date, the sum of (i) product of the Expense Fee
Rate and the aggregate Stated Principal Balance of the Mortgage Loans as of
the
Due Date occurring in the prior calendar month and (ii) the Premium payable
to
the Certificate Insurer for that Distribution Date.
“Expense
Fee Rate”: As to each Mortgage Loan, the sum of the Servicing Fee Rate and the
Trustee Fee Rate.
“Extra
Principal Distribution Amount”: With respect to any Distribution Date other than
the Distribution Date occurring in January, February or March of 2007,
the
lesser of (x) the Total Monthly Excess Spread for that Distribution Date and
(y)
the Overcollateralization Deficiency Amount for that Distribution
Date.
With
respect to any Distribution Date occurring in January, February or March of
2007,
zero.
“Xxxxxx
Xxx”: Xxxxxx Xxx or any successor thereto.
“FDIC”:
Federal Deposit Insurance Corporation or any successor thereto.
“Final
Distribution Date”: The Distribution Date in April 2012.
“Final
Recovery Determination”: With respect to any defaulted Mortgage Loan or any REO
Property (other than a Mortgage Loan or REO Property purchased by the Seller
or
the Servicer pursuant to or as contemplated by Section 2.03, Section 3.16(c)
or
Section 10.01), a determination made by the Servicer that all Insurance
Proceeds, Liquidation Proceeds and other payments or recoveries which the
Servicer, in its reasonable good faith judgment, expects to be finally
recoverable in respect thereof have been so recovered. The Servicer shall
maintain records, prepared by a Servicing Officer, of each Final Recovery
Determination made thereby.
“Fixed-Rate
Mortgage Loan”: A Mortgage Loan whose Mortgage Rate is fixed for the life of
such Mortgage Loan at the fixed Mortgage Rate set forth in the related Mortgage
Note.
“Formula
Rate”: With respect to the Class A Certificates and Subordinated Certificates
and any Distribution Date, a per annum rate equal to the lesser of (i) LIBOR
plus the related Certificate Margin and (ii) the Maximum Cap Rate.
“Xxxxxxx
Mac”: Xxxxxxx Mac or any successor thereto.
“Gross
Margin”: With respect to each Adjustable-Rate Mortgage Loan, the fixed
percentage set forth in the related Mortgage Note that is added on each
Adjustment Date to the Index, in accordance with the terms of the related
Mortgage Note, used to determine the Mortgage Rate for such Mortgage
Loan.
“Highest
Priority”: As of any date of determination, the Class of Subordinated
Certificates then outstanding with a Certificate Principal Balance greater
than
zero, with the highest priority for payments pursuant to Section 4.01, in the
following order of decreasing priority: Class M Certificates and Class B
Certificates.
“Holder”:
A Certificateholder.
“Independent”:
When used with respect to any specified Person, any such Person who (a) is
in
fact independent of the Depositor, the Servicer and their respective Affiliates,
(b) does not have any direct financial interest in or any material indirect
financial interest in the Depositor or the Servicer or any Affiliate thereof,
and (c) is not connected with the Depositor or the Servicer or any Affiliate
thereof as an officer, employee, promoter, underwriter, trustee, partner,
director or Person performing similar functions; provided, however, that a
Person shall not fail to be Independent of the Depositor or the Servicer or
any
Affiliate thereof merely because such Person is the beneficial owner of 1%
or
less of any class of securities issued by the Depositor or the Servicer or
any
Affiliate thereof, as the case may be.
“Independent
Contractor”: Either (i) any Person (other than the Servicer) that would be an
“independent contractor” with respect to any of the REMICs created hereunder
within the meaning of Section 856(d)(3) of the Code if such REMIC were a real
estate investment trust (except that the ownership tests set forth in that
section shall be considered to be met by any Person that owns, directly or
indirectly, 35% or more of any Class of Certificates), so long as each such
REMIC does not receive or derive any income from such Person and provided that
the relationship between such Person and such REMIC is at arm’s length, all
within the meaning of Treasury Regulation Section 1.856-4(b)(5), or (ii) any
other Person (including the Servicer), if the Trustee and the Certificate
Insurer have received an Opinion of Counsel to the effect that the taking of
any
action in respect of any REO Property by such Person, subject to any conditions
therein specified, that is otherwise herein contemplated to be taken by an
Independent Contractor, will not cause such REO Property to cease to qualify
as
“foreclosure property” within the meaning of Section 860G(a)(8) of the Code
(determined without regard to the exception applicable for purposes of Section
860D(a) of the Code), or cause any income realized in respect of such REO
Property to fail to qualify as Rents from Real Property.
“Index”:
With respect to each Adjustable-Rate Mortgage Loan and with respect to each
related Adjustment Date, the index as specified in the related Mortgage
Note.
“Insurance
Account”: The account or accounts created and maintained pursuant to Section
4.06, which shall be entitled “Deutsche Bank National Trust Company, as Trustee,
in trust for the registered holders of IndyMac Residential Mortgage-Backed
Trust
Certificates, Series 2006-L3.” The Insurance Account must be an Eligible
Account.
“Insurance
Agreement”: The Insurance and Indemnity Agreement, dated as of September 25,
2006, among the Certificate Insurer, the Trustee, the Servicer, the Seller
and
the Depositor.
“Insurance
Proceeds”: Proceeds of any title policy or other insurance policy covering a
Mortgage Loan, to the extent such proceeds are not to be applied to the
restoration of the related Mortgaged Property or released to the Mortgagor
in
accordance with the procedures that the Servicer would follow in servicing
mortgage loans held for its own account, subject to the terms and conditions
of
the related Mortgage Note and Mortgage.
“Insured
Amount”: With respect to the Insured Certificates and (i) a Distribution Date,
any Deficiency Amount for such Distribution Date and (ii) any date, any
Preference Amount to be paid pursuant to the terms of the Policy on such
date.
“Insured
Certificates”: The Class A Certificates.
“Interest
Determination Date”: With respect to the Class A Certificates and Subordinated
Certificates and each Accrual Period, the second LIBOR Business Day preceding
the commencement of such Accrual Period.
“Interest
Remittance Amount”: With respect to any Distribution Date, that portion of the
Available Funds for such Distribution Date attributable to interest received
or
advanced on the Mortgage Loans or to amounts in respect of Prepayment Interest
Shortfalls paid by the Servicer.
“Late
Collections”: With respect to any Mortgage Loan, all amounts received subsequent
to the Determination Date immediately following any related Remittance Period,
whether as late payments of Monthly Payments or as Insurance Proceeds,
Subsequent Recoveries, Liquidation Proceeds or otherwise, which represent late
payments or collections of principal and/or interest due (without regard to
any
acceleration of payments under the related Mortgage and Mortgage Note) but
delinquent on a contractual basis for such Remittance Period and not previously
recovered.
“Late
Payment Rate”: With respect to the Policy, for any Distribution Date, the lesser
of (a) the greater of (i) the per annum rate of interest publicly announced
from
time to time by Citibank, N.A. at its principal office in New York, New York
as
its prime lending rate (any change in such prime rate of interest to be
effective on the date such change is announced by Citibank, N.A.) plus 2%,
and
(ii) the then applicable highest rate of interest on any of the Insured
Certificates and (b) the maximum rate permissible under applicable usury or
similar laws limiting interest rates, as determined by the Certificate Insurer.
The Late Payment Rate shall be computed on the basis of the actual number of
days elapsed over a year of 360 days.
“LIBOR”:
With respect to each Accrual Period for the Class A Certificates and the
Subordinated Certificates, the rate determined by the Trustee on the related
Interest Determination Date on the basis of the London interbank offered rate
for one-month United States dollar deposits, as such rate appears on the
Telerate Page 3750, as of 11:00 a.m. (London time) on such Interest
Determination Date. If such rate does not appear on Telerate Page 3750, LIBOR
on
such Interest Determination Date will be determined on the basis of the offered
rates of the Reference Banks for one-month United States dollar deposits, as
of
11:00 a.m. (London time) on such Interest Determination Date. The Trustee will
request the principal London office of each of the Reference Banks to provide
a
quotation of its rate. On such Interest Determination Date, LIBOR for the
related Accrual Period will be established by the Trustee as
follows:
(i) If
on
such Interest Determination Date two or more Reference Banks provide such
offered quotations, LIBOR for the related Accrual Period shall be the arithmetic
mean of such offered quotations (rounded upwards if necessary to the nearest
whole multiple of 1/16 of 1%); and
(ii) If
on
such Interest Determination Date fewer than two Reference Banks provide such
offered quotations, LIBOR for the related Accrual Period shall be the arithmetic
mean of the rates quoted by major banks in New York City, selected by the
Servicer and approved by the Certificate Insurer, at approximately 11:00 A.M.
(New York City time) on that day for loans in United States dollars to leading
European banks.
“LIBOR
Business Day”: Any day on which dealings in deposits of United States dollars
are transacted in the London interbank market.
“Liquidated
Mortgage Loan”: As to any Distribution Date, any Mortgage Loan in respect of
which the Servicer has determined, in accordance with the servicing procedures
and the Servicing Standard specified herein, as of the end of the related
Prepayment Period, that all Liquidation Proceeds which it expects to recover
with respect to the liquidation of the Mortgage Loan or disposition of the
related REO Property have been recovered.
“Liquidation
Event”: With respect to any Mortgage Loan, any of the following events: (i) such
Mortgage Loan is paid in full; (ii) a Final Recovery Determination is made
as to
such Mortgage Loan; or (iii) such Mortgage Loan is removed from the Trust Fund
by reason of its being purchased, sold or replaced pursuant to or as
contemplated by Section 2.03, Section 3.16(c) or Section 10.01. With respect
to
any REO Property, either of the following events: (i) a Final Recovery
Determination is made as to such REO Property; or (ii) such REO Property is
removed from the Trust Fund by reason of its being sold or purchased pursuant
to
Section 10.01.
“Liquidation
Proceeds”: The amount (other than amounts received in respect of the rental of
any REO Property prior to REO Disposition) received by the Servicer in
connection with: (i) the taking of all or a part of a Mortgaged Property by
exercise of the power of eminent domain or condemnation; (ii) the liquidation
of
a defaulted Mortgage Loan by means of a trustee’s sale, foreclosure sale or
otherwise; or (iii) the repurchase, substitution or sale of a Mortgage Loan
or
an REO Property pursuant to or as contemplated by Section 2.03, Section 3.16(c)
or Section 10.01.
“Loan-to-Value
Ratio”: As of any date and as to any Mortgage Loan, the fraction, expressed as a
percentage, the numerator of which is the Stated Principal Balance of the
Mortgage Loan and the denominator of which is the Value of the related Mortgaged
Property.
“Losses”:
As defined in Section 9.03.
“Lost
Note Affidavit”: With respect to any Mortgage Loan as to which the original
Mortgage Note has been permanently lost or destroyed and has not been replaced,
an affidavit from the Seller certifying that the original Mortgage Note has
been
lost, misplaced or destroyed (together with a copy of the related Mortgage
Note
and indemnifying the Trust against any loss, cost or liability resulting from
the failure to deliver the original Mortgage Note) in the form of Exhibit H
hereto.
“Majority
Certificateholders”: The Holders of Certificates evidencing at least 51% of the
Voting Rights.
“Marker
Rate”: With respect to the Class C Certificates and any Distribution Date, a per
annum rate equal to two (2) times the weighted average of the Uncertificated
REMIC 1 Pass-Through Rates for REMIC 1 Regular Interest LT1A1, REMIC 1 Regular
Interest LT1A2, REMIC 1 Regular Interest LT1A3, REMIC 1 Regular Interest LT1M,
REMIC 1 Regular Interest LT1B and REMIC 1 Regular Interest LT1ZZ, with the
rate
on each such REMIC 1 Regular Interest (other than REMIC 1 Regular Interest
LT1ZZ) subject to a cap equal to the lesser of (i) LIBOR plus the related
Certificate Margin and (ii) the Net WAC Rate for the purpose of this
calculation; and with the rate on REMIC 1 Regular Interest LT1ZZ subject to
a
cap of zero for the purpose of this calculation; provided, however, that for
this purpose, calculations of the Uncertificated REMIC 1 Pass-Through Rate
and
the related caps with respect to REMIC 1 Regular Interest LT1A1, REMIC 1 Regular
Interest LT1A2, REMIC 1 Regular Interest LT1A3, REMIC 1 Regular Interest LT1M
and REMIC 1 Regular Interest LT1B shall be multiplied by a fraction, the
numerator of which is the actual number of days in the Accrual Period and the
denominator of which is 30.
“Maximum
Cap Rate”: For any Distribution Date, a per annum rate (subject to adjustment
based on the actual number of days elapsed in the related Accrual Period) equal
to the weighted average (weighted based on their Stated Principal Balances
as of
the first day of the related Remittance Period, adjusted to reflect unscheduled
principal payments made thereafter that were included in the Principal
Distribution Amount on the immediately preceding Distribution Date) of the
Expense Adjusted Maximum Mortgage Rates of the Mortgage Loans minus the Premium
Rate on such Distribution Date (multiplied by a fraction the numerator of which
is the Certificate Principal Balance of the Class A Certificates immediately
prior to such Distribution Date and the denominator of which is the aggregate
Stated Principal Balance of the Mortgage Loans as of the first day of the
related Remittance Period, adjusted to reflect unscheduled principal payments
made thereafter that were included in the Principal Distribution Amount on
the
immediately preceding Distribution Date).
“Maximum
LT1ZZ Uncertificated Accrued Interest Deferral Amount”: With respect to any
Distribution Date, the excess of (a) accrued interest at the Uncertificated
REMIC 1 Pass-Through Rate applicable to REMIC 1 Regular Interest LT1ZZ for
such
Distribution Date on a balance equal to the Uncertificated Principal Balance
of
REMIC 1 Regular Interest LT1ZZ minus the REMIC 1 Overcollateralized Amount,
in
each case for such Distribution Date, over (b) Uncertificated Accrued Interest
on REMIC 1 Regular Interest LT1A1, REMIC 1 Regular Interest LT1A2, REMIC 1
Regular Interest LT1A3, REMIC 1 Regular Interest LT1M and REMIC 1 Regular
Interest LT1B, with the rate on each such REMIC 1 Regular Interest subject
to a
cap equal to the lesser of (i) LIBOR plus the related Certificate Margin and
(ii) the Net WAC Rate for the purpose of this calculation; provided, however,
that for this purpose, calculations of the Uncertificated REMIC 1 Pass-Through
Rate and the related caps with respect to REMIC 1 Regular Interest LT1A1, REMIC
1 Regular Interest LT1A2, REMIC 1 Regular Interest LT1A3, REMIC 1 Regular
Interest LT1M and REMIC 1 Regular Interest LT1B shall be multiplied by a
fraction, the numerator of which is the actual number of days in the Accrual
Period and the denominator of which is 30.
“Maximum
Mortgage Rate”: With respect to each Adjustable-Rate Mortgage Loan, the
percentage set forth in the related Mortgage Note as the maximum Mortgage Rate
thereunder.
“Minimum
Mortgage Rate”: With respect to each Adjustable-Rate Mortgage Loan, the
percentage set forth in the related Mortgage Note as the minimum Mortgage Rate
thereunder.
“Monthly
Payment”: With respect to any Mortgage Loan, the scheduled monthly payment of
principal, if any, and interest (other than any Prepaid Interest) on such
Mortgage Loan which is payable by the related Mortgagor from time to time under
the related Mortgage Note, determined: (a) after giving effect to (i) any
reduction in such payment due to any Deficient Valuation and/or Debt Service
Reduction with respect to such Mortgage Loan and (ii) any reduction in the
amount of interest collectible from the related Mortgagor pursuant to the Relief
Act; (b) without giving effect to any extension granted or agreed to by the
Servicer pursuant to Section 3.01; and (c) on the assumption that all other
amounts, if any, due under such Mortgage Loan are paid when due.
“Moody’s”:
Xxxxx’x Investors Service, Inc., or its successor in interest.
“Mortgage”:
The mortgage, deed of trust or other instrument creating a first lien on, or
first priority security interest in, a Mortgaged 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 required to be added to the Mortgage
File pursuant to this Agreement.
“Mortgage
Loan”: Each mortgage loan transferred and assigned to the Trustee pursuant to
Section 2.01 or Section 2.03(d) as from time to time held as a part of the
Trust
Fund, the Mortgage Loans so held being identified in the Mortgage Loan
Schedule.
“Mortgage
Loan Purchase Agreement”: The agreement between the Seller and the Depositor,
regarding the transfer of the Mortgage Loans by the Seller to or at the
direction of the Depositor, substantially in the form attached hereto as Exhibit
C.
“Mortgage
Loan Schedule”: As of any date, the list of Mortgage Loans included in the Trust
Fund on such date, attached hereto as Exhibit D, as initially prepared by the
Seller pursuant to the Mortgage Loan Purchase Agreement. The Mortgage Loan
Schedule shall set forth the following information with respect to each Mortgage
Loan, as applicable:
|
(1)
|
the
Mortgage Loan identifying number;
|
|
(2)
|
[reserved];
|
|
(3)
|
the
state and zip code of the Mortgaged
Property;
|
|
(4)
|
the
original months to maturity;
|
|
(5)
|
[reserved];
|
|
(6)
|
the
Loan-to-Value Ratio at origination;
|
|
(7)
|
the
Mortgage Rate in effect immediately following the Cut-off
Date;
|
|
(8)
|
the
date on which the first Monthly Payment was due on the Mortgage
Loan;
|
|
(9)
|
the
stated maturity date;
|
|
(10)
|
the
amount of the Monthly Payment at
origination;
|
|
(11)
|
the
amount of the Monthly Payment due on the first Due Date after the
Cut-off
Date;
|
|
(12)
|
the
last Due Date on which a Monthly Payment was actually applied to
the
unpaid Stated Principal Balance;
|
|
(13)
|
the
original principal amount of the Mortgage
Loan;
|
|
(14)
|
the
Stated Principal Balance of the Mortgage Loan as of the Close of
Business
on the Cut-off Date;
|
|
(15)
|
[reserved];
|
|
(16)
|
the
Mortgage Rate at origination;
|
|
(17)
|
[reserved];
|
|
(18)
|
the
Value of the Mortgaged Property;
|
|
(19)
|
[reserved];
|
|
(20)
|
[reserved];
|
|
(21)
|
[reserved];
and
|
|
(22)
|
in
the case of each Adjustable-Rate Mortgage Loan, the Minimum Mortgage
Rate,
the Maximum Mortgage Rate, the Gross Margin and the Periodic Rate
Cap.
|
The
Mortgage Loan Schedule shall set forth the following information, with respect
to the Mortgage Loans in the aggregate as of the Cut-off Date: (1) the number
of
Mortgage Loans; (2) the current aggregate Stated Principal Balance of the
Mortgage Loans; (3) the weighted average Mortgage Rate of the Mortgage Loans;
and (4) the weighted average maturity of the Mortgage Loans. The Mortgage Loan
Schedule shall be amended from time to time by the Servicer in accordance with
the provisions of this Agreement. With respect to any Qualified Substitute
Mortgage Loan, Cut-off Date shall refer to the related Cut-off Date for such
Mortgage Loan, determined in accordance with the definition of Cut-off Date
herein.
“Mortgage
Note”: The original executed note or other evidence of the indebtedness of a
Mortgagor under a Mortgage Loan.
“Mortgage
Pool”: The pool of Mortgage Loans, identified on Exhibit D from time to time,
and any REO Properties acquired in respect thereof.
“Mortgage
Rate”: With respect to each Mortgage Loan, the annual rate at which interest
accrues on such Mortgage Loan from time to time in accordance with the
provisions of the related Mortgage Note, which rate in the case of each
Fixed-Rate Mortgage Loan is the fixed rate set forth in the related Mortgage
Note, and which rate in the case of each Adjustable-Rate Mortgage Loan (A)
as of
any date of determination until the first Adjustment Date following the Cut-off
Date, shall be the rate set forth in the Mortgage Loan Schedule as the Mortgage
Rate in effect immediately following the Cut-off Date, and (B) as of any date
of
determination thereafter, shall be the rate as adjusted on the most recent
Adjustment Date, to equal the sum (rounded as provided in the Mortgage Note
and
as specified by the Servicer) of the Index, determined as set forth in the
related Mortgage Note, plus the related Gross Margin, subject to the limitations
set forth in the related Mortgage Note. With respect to each Mortgage Loan
that
is secured by a Mortgaged Property that becomes an REO Property, as of any
date
of determination, the annual rate determined in accordance with the immediately
preceding sentence as of the date such Mortgaged Property became an REO
Property.
“Mortgaged
Property”: The underlying property securing a Mortgage Loan, including any REO
Property, consisting of an Estate in Real Property.
“Mortgagor”:
The obligor on a Mortgage Note.
“Net
Interest Shortfalls”: As defined in Section 1.02.
“Net
Liquidation Proceeds”: With respect to any Liquidated Mortgage Loan or any other
disposition of the related Mortgaged Property (including any REO Property),
the
related Liquidation Proceeds net of Advances, Servicing Advances, Servicing
Fees
and any other accrued and unpaid servicing fees received and retained in
connection with the liquidation of such Mortgage Loan or Mortgaged
Property.
“Net
Mortgage Rate”: With respect to any Mortgage Loan (or the related REO Property),
as of any date of determination, a per annum rate of interest equal to the
then
applicable Mortgage Rate for such Mortgage Loan minus the Servicing Fee Rate
and
the Trustee Fee Rate.
“Net
Prepayment Interest Shortfall”: With respect to any Distribution Date, the
excess, if any, of any Prepayment Interest Shortfalls for such date over the
related Compensating Interest.
“Net
WAC
Rate”: With respect to the Class A Certificates and the Subordinated
Certificates, a per annum rate (subject to adjustment based on the actual number
of days elapsed in the related Accrual Period) equal to (A) for first
Distribution Date, 6.245%
per annum
and (B)
thereafter, the
weighted
average (weighted based on the Stated Principal Balances of the Mortgage Loans
as of the first day of the related Remittance Period, adjusted to reflect
unscheduled principal payments made thereafter that were included in the
Principal Distribution Amount on the immediately preceding Distribution Date)
of
the Expense Adjusted Mortgage Rates on the Mortgage Loans minus the Premium
Rate
on such Distribution Date (multiplied by a fraction the numerator of which
is
the aggregate Certificate Principal Balance of the Class A Certificates
immediately prior to such Distribution Date and the denominator of which is
the
aggregate Stated Principal Balance of the Mortgage Loans as of the first day
of
the related Remittance Period, adjusted to reflect unscheduled principal
payments made thereafter that were included in the Principal Distribution Amount
on the immediately preceding Distribution Date). For federal income tax
purposes, for any Distribution Date with respect to the REMIC 2 Regular
Interests the ownership of which is represented by the Class A, Class M or
Class
B Certificates, the Net WAC Rate shall be expressed as the weighted average
(adjusted for the actual number of days elapsed in the related Interest Accrual
Period) of the Uncertificated REMIC 1 Pass-Through Rates on the REMIC 1 Regular
Interests, weighted on the basis of the Uncertificated Balance of each such
REMIC 1 Regular Interest.
“Net
WAC
Rate Carryover Amount”: With respect to the Class A, Class M and Class B
Certificates and any Distribution Date, the sum of (A) the positive excess,
if
any, of (i) the amount of interest that would have accrued on such Class of
Certificates for such Distribution Date if the Pass-Through Rate for such Class
of Certificates for such Distribution Date were calculated at the related
Formula Rate over (ii) the amount of interest accrued on such Class of
Certificates at the Net WAC Rate for such Distribution Date and (B) the related
Net WAC Rate Carryover Amount for the previous Distribution Date not previously
paid, together with interest thereon for the most recently ended related Accrual
Period at a rate equal to the related Formula Rate for such Class of
Certificates for such Distribution Date.
“New
Lease”: Any lease of REO Property entered into on behalf of the Trust, including
any lease renewed or extended on behalf of the Trust if the Trust has the right
to renegotiate the terms of such lease.
“Nonrecoverable
Advance”: Any Advance previously made in respect of a Mortgage Loan or REO
Property that, in the good faith business judgment of the Servicer, will not
be
ultimately recoverable from Late Collections, Insurance Proceeds or Liquidation
Proceeds on such Mortgage Loan or REO Property as provided herein.
“Notional
Amount”: Immediately prior to any Distribution Date, with respect to REMIC 2
Regular Interest C, the aggregate Uncertificated Principal Balances of the
REMIC
1 Regular Interests (other than REMIC 1 Regular Interest LT1P).
“Officer’s
Certificate”: A certificate signed by the Chairman of the Board, the Vice
Chairman of the Board, the President or a vice president (however denominated),
the Treasurer, the Secretary, or one of the assistant treasurers or assistant
secretaries of the Servicer, the Seller or the Depositor, as
applicable.
“Opinion
of Counsel”: A written opinion of counsel, who may, without limitation, be a
salaried counsel for the Depositor or the Servicer, acceptable to the Trustee
and the Certificate Insurer, except that any opinion of counsel relating to
(a)
the qualification of any REMIC as a REMIC or (b) compliance with the REMIC
Provisions must be an opinion of Independent counsel.
“Optional
Termination Date”: The earliest Distribution Date on which the Terminator would
be permitted to exercise its option to terminate the Trust pursuant to Section
10.01.
“Overcollateralization
Deficiency Amount”: With respect to any Distribution Date, the amount, if any,
by which the Overcollateralization Target Amount exceeds the Overcollateralized
Amount on such Distribution Date (assuming that 100% of the Principal Remittance
Amount is applied as a principal distribution on such Distribution
Date).
“Overcollateralization
Floor Amount”: With respect to any Distribution Date, an amount equal to 0.50%
of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date.
“Overcollateralization
Target Amount”: With respect to any Distribution Date (i) prior to the Stepdown
Date, 1.50% of the aggregate Stated Principal Balance of the Mortgage Loans
as
of the Cut-off Date, (ii) on or after the Stepdown Date provided a Trigger
Event
is not in effect, the greater of (x) 3.00% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Remittance
Period (after giving effect to scheduled payments of principal due during the
related Remittance Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) and
(y)
the Overcollateralization Floor Amount, and (iii) on or after the Stepdown
Date
and if a Trigger Event is in effect, the Overcollateralization Target Amount
for
the immediately preceding Distribution Date. Notwithstanding the foregoing,
on
and after any Distribution Date following the reduction of the aggregate
Certificate Principal Balance of the Class A, Class M and Class B Certificates
to zero, the Overcollateralization Target Amount shall be zero.
“Overcollateralized
Amount”: With respect to any Distribution Date, the amount, if any, by which (i)
the aggregate Stated Principal Balance of the Mortgage Loans (after giving
effect to scheduled payments of principal due during the related Remittance
Period, to the extent received or advanced, and unscheduled collections of
principal received during the related Prepayment Period) exceeds (ii) the
aggregate Certificate Principal Balance of the Class A Certificates, Class
P
Certificates and the Subordinated Certificates as of such Distribution Date
after giving effect to distributions to be made on such Distribution
Date.
“Ownership
Interest”: As to any Certificate, any ownership or security 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,
as owner or as pledgee.
“Pass-Through
Rate”: With respect to the Class A Certificates and each Class of the
Subordinated Certificates and any Distribution Date, the lesser of (x) the
related Formula Rate for such Distribution Date and (y) the Net WAC Rate for
such Distribution Date. With respect to the Class C Certificates and any
Distribution Date, a per annum rate equal to the percentage equivalent of a
fraction, the numerator of which is the sum of 100% of the interest on REMIC
1
Regular Interest LT1P and the amounts calculated pursuant to clauses (a) through
(g) below, and the denominator of which is the aggregate of the Uncertificated
Principal Balances of REMIC 1 Regular Interest LT1AA, REMIC 1 Regular Interest
LT1A1, REMIC 1 Regular Interest LT1A2, REMIC 1 Regular Interest LT1A3, REMIC
1
Regular Interest LT1M, REMIC 1 Regular Interest LT1B and REMIC 1 Regular
Interest LT1ZZ. For purposes of calculating the Pass-Through Rate for the Class
C Certificates, the numerator is equal to the sum of the following
components:
(a) the
Uncertificated REMIC 1 Pass-Through Rate for REMIC 1 Regular Interest LT1AA
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC 1 Regular Interest LT1AA;
(b) the
Uncertificated REMIC 1 Pass-Through Rate for REMIC 1 Regular Interest LT1A1
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC 1 Regular Interest LT1A1;
(c) the
Uncertificated REMIC 1 Pass-Through Rate for REMIC 1 Regular Interest LT1A2
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC 1 Regular Interest LT1A2;
(d) the
Uncertificated REMIC 1 Pass-Through Rate for REMIC 1 Regular Interest LT1A3
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC 1 Regular Interest LT1A3;
(e) the
Uncertificated REMIC 1 Pass-Through Rate for REMIC 1 Regular Interest LT1M
minus
the Marker Rate, applied to an amount equal to the Uncertificated Principal
Balance of REMIC 1 Regular Interest LT1M;
(f) the
Uncertificated REMIC 1 Pass-Through Rate for REMIC 1 Regular Interest LT1B
minus
the Marker Rate, applied to an amount equal to the Uncertificated Principal
Balance of REMIC 1 Regular Interest LT1B;
(g) the
Uncertificated REMIC 1 Pass-Through Rate for REMIC 1 Regular Interest LT1ZZ
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC 1 Regular Interest LT1ZZ; and
(h)
100%
of the interest on REMIC 1 Regular Interest LTP.
The
Class
P Certificates and Class R Certificates will not accrue interest and therefore
will not have a Pass-Through Rate.
“Paying
Agent”: Any paying agent appointed pursuant to Section 5.05.
“Percentage
Interest”: With respect to any Certificate (other than a Class R Certificate), a
fraction, expressed as a percentage, the numerator of which is the initial
Certificate Principal Balance or initial Notional Amount represented by such
Certificate and the denominator of which is the aggregate initial Certificate
Principal Balance or aggregate initial Notional Amount of the related Class.
With respect to a Class R Certificate, the portion of the Class evidenced
thereby, expressed as a percentage, as stated on the face of such Certificate;
provided, however, that the sum of all such percentages for such Class totals
100%.
“Periodic
Rate Cap”: With respect to each Adjustable-Rate Mortgage Loan and any Adjustment
Date therefor, the fixed percentage set forth in the related Mortgage Note,
which is the maximum amount by which the Mortgage Rate for such Mortgage Loan
may increase or decrease (without regard to the Maximum Mortgage Rate or the
Minimum Mortgage Rate) on such Adjustment Date from the Mortgage Rate in effect
immediately prior to such Adjustment Date.
“Permitted
Investments”: Any one or more of the following obligations or securities
acquired at a purchase price of not greater than par, regardless of whether
issued or managed by the Depositor, the Servicer, the Trustee or any of their
respective Affiliates or for which an Affiliate of the Trustee serves as an
advisor:
(i) direct
obligations of, or obligations fully guaranteed as to timely payment of
principal and interest by, the United States or any agency or instrumentality
thereof, provided such obligations are backed by the full faith and credit
of
the United States;
(ii) (A)
demand
and time deposits in, certificates of deposit of, bankers’ acceptances issued by
or federal funds sold by any depository institution or trust company (including
the Trustee or its agent acting in their respective commercial capacities)
incorporated under the laws of the United States of America or any state thereof
and subject to supervision and examination by federal and/or state authorities;
and (B) any other demand or time deposit or deposit which is fully insured
by
the FDIC;
(iii) repurchase
obligations with a term not to exceed 30 days with respect to any security
described in clause (i) above and entered into with a depository institution
or
trust company (acting as principal) rated “A2” or higher by Xxxxx’x and “A” by
S&P; provided, however, that collateral transferred pursuant to such
repurchase obligation must be of the type described in clause (i) above and
must
(A) be valued daily at current market prices plus accrued interest, (B) pursuant
to such valuation, be equal, at all times, to 105% of the cash transferred
by
the Trustee in exchange for such collateral and (C) be delivered to the Trustee
or, if the Trustee is supplying the collateral, an agent for the Trustee, in
such a manner as to accomplish perfection of a security interest in the
collateral by possession of certificated securities;
(iv) with
the
prior written consent of the Certificate Insurer, securities bearing interest
or
sold at a discount that are issued by any corporation incorporated under the
laws of the United States of America or any State thereof and that are rated
by
a Rating Agency in its highest long-term unsecured rating category at the time
of such investment or contractual commitment providing for such
investment;
(v) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date not more
than 30 days after the date of acquisition thereof) that is rated by S&P
(and if rated by any other Rating Agency, also by such other Rating Agency)
in
its highest short-term unsecured debt rating available at the time of such
investment;
(vi) units
of
money market funds that have been rated “Aaa” by Xxxxx’x and “AAAm” by S&P,
including any such funds that may be managed or co-advised by the Trustee or
an
Affiliate of the Trustee; and
(vii) if
previously confirmed in writing to the Trustee, any other demand, money market
or time deposit, or any other obligation, security or investment, as may be
acceptable to the Rating Agencies and the Certificate Insurer in writing as
a
permitted investment of funds backing securities having ratings of “Aaa” by
Xxxxx’x and “AAA” by S&P;
provided,
however, that no instrument described hereunder shall evidence either the right
to receive (a) only interest with respect to the obligations underlying such
instrument or (b) both principal and interest payments derived from obligations
underlying such instrument and the interest and principal payments with respect
to such instrument provide a yield to maturity at par greater than 120% of
the
yield to maturity at par of the underlying obligations. Furthermore, any
Permitted Investment shall be relatively risk free and no options or voting
rights shall be exercised with respect to any Permitted Investment and no
Permitted Investment may be sold or disposed of before its
maturity.
“Permitted
Transferee”: Any transferee of a Class R Certificate, other than a Disqualified
Organization or a non-U.S. Person.
“Person”:
Any individual, corporation, limited liability company, partnership, joint
venture, association, joint stock company, trust, unincorporated organization
or
government or any agency or political subdivision thereof.
“Plan”:
Any employee benefit plan or certain other retirement plans and arrangements,
including individual retirement accounts and annuities, Xxxxx plans and bank
collective investment funds and insurance company general or separate accounts
in which such plans, accounts or arrangements are invested, that are subject
to
ERISA or Section 4975 of the Code.
“Policy”:
The Certificate Guaranty Insurance Policy No. AB1028BE issued by the Certificate
Insurer in respect of the Insured Certificates, a copy of which is attached
hereto as Exhibit B.
“Pool
Balance”: As of any date of determination, the aggregate Stated Principal
Balance of the Mortgage Loans as of such date.
“Premium”:
The premium payable to the Certificate Insurer under the Policy.
“Premium
Rate”: A rate, expressed as a per annum rate, at which the Premium is payable to
the Certificate Insurer under the Policy.
“Prepaid
Interest”: With respect to any Mortgage Loan that was originated after the
Cut-off Date, the amount paid by the related Mortgagor in respect of
interest accrued on that Mortgage Loan from the date of origination through
and
including the last day of the month of origination. Prepaid Interest shall
not
be an asset of any REMIC.
“Prepayment
Assumption”: A prepayment rate for the Mortgage Loans of 30% of the constant
prepayment rate assumption (which represents an assumed annualized rate of
prepayment relative to the then-outstanding balance of a pool of new mortgage
loans).
“Prepayment
Charge”: With respect to any Mortgage Loan, the charges or premiums, if any, due
in connection with a full or partial prepayment of such Mortgage Loan in
accordance with the terms thereof.
“Prepayment
Charge Schedule”: As of any date, the list of Prepayment Charges included in the
Trust Fund on that
date
(including the prepayment charge summary attached thereto). The Prepayment
Charge Schedule shall contain the following information with respect to each
Prepayment Charge:
(i) the
Mortgage Loan account number;
(ii) a
code
indicating the type of Prepayment Charge;
(iii) the
state
of origination in which the related Mortgaged Property is located;
(iv) the
first
date on which a monthly payment is or was due under the related Mortgage
Note;
(v) the
term
of the Prepayment Charge;
(vi) the
original principal amount of the related Mortgage Loan; and
(vii) the
Cut-off Date Principal Balance or Subsequent Cut-off Date Principal Balance,
as
applicable, of the related Mortgage Loan.
The
Prepayment Charge Schedule shall be amended from time to time by the Servicer
in
accordance with this Agreement.
“Prepayment
Interest Excess”: With respect to any Distribution Date, for each Mortgage Loan
that was the subject of a Principal Prepayment in full during the portion of
the
related Prepayment Period occurring between the first day and the Determination
Date of the calendar month in which such Distribution Date occurs, an amount
equal to interest at the applicable Net Mortgage Rate on the amount of such
Principal Prepayment for the number of days commencing on the first day of
the
calendar month in which such Distribution Date occurs and ending on the date
on
which such prepayment is so applied.
“Prepayment
Interest Shortfall”: With respect to any Distribution Date, for each Mortgage
Loan that was the subject of a Principal Prepayment in full during the portion
of the related Prepayment Period occurring between the first day of the related
Prepayment Period and the last day of the calendar month preceding the month
in
which such Distribution Date occurs, an amount equal to one month’s interest on
the Mortgage Loan less any interest payments made by the Mortgagor. The
obligations of the Servicer in respect of any Prepayment Interest Shortfall
are
set forth in Section 3.26.
“Prepayment
Period”: With respect to any Distribution Date, the period commencing on the
16th
day in
the calendar month preceding the calendar month in which such Distribution
Date
occurs (or, in the case of the first Distribution Date, commencing on the day
after the Cut-Off Date) and ending on the 15th
day of
the calendar month in which such Distribution Date occurs.
“Principal
Distribution Amount”: With respect to any Distribution Date, an amount equal to
the sum of (a) the excess of the Principal Remittance Amount over the Excess
Overcollateralization Amount, if any, for such Distribution Date plus (b) the
Extra Principal Distribution Amount.
“Principal
Prepayment”: Any payment of principal made by the Mortgagor on a Mortgage Loan
which is received in advance of its scheduled Due Date and which is not
accompanied by an amount of interest representing the full amount of scheduled
interest due on any Due Date in any month or months subsequent to the month
of
prepayment.
“Principal
Remittance Amount”: With respect to any Distribution Date, the sum of (i) each
scheduled payment of principal collected or advanced on the Mortgage Loans
by
the Servicer that was due during the related Remittance Period, (ii) the
principal portion of all partial and full Principal Prepayments of the Mortgage
Loans applied by the Servicer during the related Prepayment Period, (iii) the
principal portion of all related Net Liquidation Proceeds, Subsequent Recoveries
and Insurance Proceeds received during such Prepayment Period, (iv) that portion
of the Purchase Price, representing principal of any purchased or repurchased
Mortgage Loan, deposited to the Certificate Account during such Prepayment
Period, (v) the principal portion of any related Substitution Adjustments
deposited in the Certificate Account during such Prepayment Period and (vi)
on
the Distribution Date on which the Trust Fund is to be terminated pursuant
to
Section 10.01, that portion of the Termination Price, in respect of
principal.
“Private
Certificate”: Any of the
Class B,
Class C, Class P and Class R Certificates.
“Purchase
Price”: With respect to any Mortgage Loan or REO Property to be purchased
pursuant to or as contemplated by Section 2.03, Section 3.16(c) or Section
10.01, and as confirmed by an Officers’ Certificate from the Servicer to the
Trustee, an amount equal to the sum of (i) 100% of the Stated Principal Balance
thereof as of the date of purchase (or such other price as provided in Section
10.01), (ii) in the case of (x) a Mortgage Loan, accrued interest on such Stated
Principal Balance at the applicable Mortgage Rate in effect from time to time
from the Due Date as to which interest was last covered by a payment by the
Mortgagor or an advance by the Servicer, which payment or advance had as of
the
date of purchase been distributed pursuant to Section 4.01, through the end
of
the calendar month in which the purchase is to be effected, and (y) an REO
Property, the sum of (1) accrued interest on such Stated Principal Balance
at
the applicable Mortgage Rate in effect from time to time from the Due Date
as to
which interest was last covered by a payment by the Mortgagor or an advance
by
the Servicer through the end of the calendar month immediately preceding the
calendar month in which such REO Property was acquired, plus (2) REO Imputed
Interest for such REO Property for each calendar month commencing with the
calendar month in which such REO Property was acquired and ending with the
calendar month in which such purchase is to be effected, net of the total of
all
Insurance Proceeds, Liquidation Proceeds and Advances that as of the date of
purchase had been distributed as or to cover REO Imputed Interest pursuant
to
Section 4.03, (iii) any unreimbursed Servicing Advances and Advances and any
unpaid Servicing Fees allocable to such Mortgage Loan or REO Property, (iv)
reserved and (v) in the case of a Mortgage Loan required to be purchased
pursuant to Section 2.03, expenses reasonably incurred or to be incurred by
the
Servicer, the Certificate Insurer or the Trustee in respect of the breach or
defect giving rise to the purchase obligation, including any costs and damages
incurred by the Trust Fund in connection with any violation by such loan of
any
predatory or abusive lending law.
“Qualified
Insurer”: Any insurance company acceptable to Xxxxxx Xxx and/or Xxxxxxx
Mac.
“Qualified
Substitute Mortgage Loan”: A mortgage loan substituted for a Deleted Mortgage
Loan pursuant to the terms of this Agreement or the Mortgage Loan Purchase
Agreement which must, on the date of such substitution, (i) have an outstanding
Stated Principal Balance (or in the case of a substitution of more than one
mortgage loan for a Deleted Mortgage Loan, an outstanding aggregate Stated
Principal Balance), after application of all scheduled payments of principal
and
interest due during or prior to the month of substitution, not in excess of,
and
not more than 5% less than, the outstanding Stated Principal Balance of the
Deleted Mortgage Loan as of the Due Date in the calendar month during which
the
substitution occurs, (ii) have a Mortgage Rate not less than (and not more
than
one percentage point in excess of) the Mortgage Rate of the Deleted Mortgage
Loan, (iii) if the Deleted Mortgage Loan is an Adjustable-Rate Mortgage Loan,
have a Maximum Mortgage Rate not less than the Maximum Mortgage Rate on the
Deleted Mortgage Loan, (iv) if the Deleted Mortgage Loan is an Adjustable-Rate
Mortgage Loan, have a Minimum Mortgage Rate not less than the Minimum Mortgage
Rate of the Deleted Mortgage Loan, (v) if the Deleted Mortgage Loan is an
Adjustable-Rate Mortgage Loan, have a Gross Margin equal to or greater than
the
Gross Margin of the Deleted Mortgage Loan, (vi) if the Deleted Mortgage Loan
is
an Adjustable-Rate Mortgage Loan, have a next Adjustment Date not more than
two
months later than the next Adjustment Date on the Deleted Mortgage Loan, (vii)
have a remaining term to maturity not more than one year greater than (and
not
more than one year less than) that of the Deleted Mortgage Loan, provided that
no maturity is later than one month prior to the Final Distribution Date, (viii)
be current as of the date of substitution, (ix) have a Loan-to-Value Ratio
as of
the date of substitution equal to or lower than the Loan-to-Value Ratio of
the
Deleted Mortgage Loan as of such date, (x) [reserved], (xi) have the same Due
Date as that of the Deleted Mortgage Loan and (xii) conform to each
representation and warranty set forth in Section 3.01 of the Mortgage Loan
Purchase Agreement applicable to the Deleted Mortgage Loan. In the event that
one or more mortgage loans are substituted for one or more Deleted Mortgage
Loans, the amounts described in clause (i) hereof shall be determined on the
basis of aggregate Stated Principal Balance, the Mortgage Rates described in
clauses (ii) through (vi) hereof shall be satisfied for each such mortgage
loan,
the risk gradings described in clause (x) hereof shall be satisfied as to each
such mortgage loan, the terms described in clause (vii) hereof shall be
determined on the basis of weighted average remaining term to maturity (provided
that no such mortgage loan may have a remaining term to maturity longer than
the
Deleted Mortgage Loan), the Loan-to-Value Ratios described in clause (ix) hereof
shall be satisfied as to each such mortgage loan and, except to the extent
otherwise provided in this sentence, the representations and warranties
described in clause (xii) hereof must be satisfied as to each Qualified
Substitute Mortgage Loan or in the aggregate, as the case may be.
“Rating
Agency”: Xxxxx’x and S&P or their successors, in its capacity as rating
agency that has assigned ratings to the Class A Certificates and the
Subordinated Certificates. If such agency or its successor is no longer in
existence, “Rating Agency” shall be such nationally recognized statistical
rating agencies, or other comparable Persons, designated by the Depositor (and
if rating the Insured Certificates, consented to in writing by the Certificate
Insurer), notice of which designation shall be given to the Trustee and
Servicer.
“Realized
Loss”: With respect to any Liquidated Mortgage Loan, the amount of loss realized
equal to the portion of the Stated Principal Balance remaining unpaid after
application of all Net Liquidation Proceeds in respect of such Mortgage Loan.
If
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 to the extent such recoveries are applied to principal distributions
on
any Distribution Date.
“Record
Date”: With respect to each Distribution Date and the Class A Certificates and
the Subordinated Certificates (other than any such Certificates that are
Definitive Certificates), the Business Day immediately preceding such
Distribution Date. With respect to each Distribution Date and the Class C
Certificates, the Class R Certificates and any Definitive Certificates, the
last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs (or, in the case of the first Distribution Date, the
Closing Date).
“Reference
Banks”: Those banks (i) with an established place of business in London,
England, (ii) not controlling, under the control of or under common control
with
the Depositor, the Seller or the Servicer or any affiliate thereof and (iii)
which have been designated as such by the Depositor; provided, however, that
if
fewer than two of such banks provide a LIBOR rate, then the term “Reference
Banks” shall refer to any leading banks selected by the Depositor which are
engaged in transactions in United States dollar deposits in the international
Eurocurrency market.
“Refinance
Loan”: Any Mortgage Loan the proceeds of which are used to refinance an existing
Mortgage Loan.
“Regular
Certificates”: Any of the Class A Certificates, the Subordinated Certificates,
the Class P Certificates and the Class C Certificates.
“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 published by the Commission or its staff from time
to
time.
“Reimbursement
Amount”: As to any Distribution Date, the sum of (x) (i) all Insured Payments
paid by the Certificate Insurer, but for which the Certificate Insurer has
not
been reimbursed prior to such Distribution Date pursuant to Section 4.01, plus
(ii) interest accrued on such Insured Payments not previously repaid, calculated
at the Late Payment Rate from the date the Trustee received the related Insured
Payments or the date such Insured Payments were made, and (y) without
duplication (i) any amounts then due and owing to the Certificate Insurer under
the Insurance Agreement, as certified to the Trustee by the Certificate Insurer
plus (ii) interest on such amounts at the Late Payment Rate.
“Relief
Act”: The Servicemembers Civil Relief Act.
“Relief
Act Interest Shortfall”: With respect to any Distribution Date, for any Mortgage
Loan with respect to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended Remittance Period or (without
duplication) any earlier Remittance Period as a result of the application of
the
Relief Act or any similar state laws, the amount by which (i) interest
collectible on such Mortgage Loan during each such Remittance Period is less
than (ii) one month’s interest on the Stated Principal Balance of such Mortgage
Loan at the Mortgage Rate for such Mortgage Loan before giving effect to the
application of the Relief Act or any similar state laws.
“REMIC”:
A “real estate mortgage investment conduit” within the meaning of Section 860D
of the Code.
“REMIC
1”: The segregated pool of assets subject hereto, constituting the primary trust
created hereby and to be administered hereunder, with respect to which a REMIC
election is to be made, consisting of: (i) such Mortgage Loans and Prepayment
Charges as from time to time are subject to this Agreement, together with the
Mortgage Files relating thereto, and together with all collections thereon
and
proceeds thereof; (ii) any REO Property, together with all collections thereon
and proceeds thereof; (iii) the Trustee’s rights with respect to the Mortgage
Loans under all insurance policies, required to be maintained pursuant to this
Agreement and any proceeds thereof; (iv) the Depositor’s rights under this
Agreement (including any security interest created thereby) to the extent
conveyed pursuant to Section 2.01; and (v) the Certificate Account, the
Distribution Account and such assets that are deposited therein from time to
time and any investments thereof, together with any and all income, proceeds
and
payments with respect thereto. Notwithstanding the foregoing, however, REMIC
I
specifically excludes the Excess Reserve Fund Account, any Prepaid Interest,
all
payments and other collections of principal and interest due on the Mortgage
Loans on or before the Cut-off Date and all Prepayment Charges payable in
connection with Principal Prepayments made before the Cut-off Date.
“REMIC
1
Interest Loss Allocation Amount”: With respect to any Distribution Date, an
amount equal to (a) the product of (i) the aggregate Stated Principal Balance
of
the Mortgage Loans and related REO Properties then outstanding and (ii) the
Uncertificated REMIC 1 Pass-Through Rate for REMIC 1 Regular Interest LT1AA
minus the Marker Rate, divided by (b) 12.
“REMIC
1
Overcollateralized Amount”: With respect to any date of determination, (i) 1% of
the aggregate Uncertificated Principal Balances of the REMIC 1 Regular Interests
(other than REMIC 1 Regular Interest LT1P) minus (ii) the aggregate of the
Uncertificated Principal Balances of REMIC 1 Regular Interest LT1A1, REMIC
1
Regular Interest LT1A2, REMIC 1 Regular Interest LT1A3, REMIC 1 Regular Interest
LT1M, REMIC 1 Regular Interest LT1B and REMIC 1 Regular Interest LT1ZZ, in
each
case as of such date of determination.
“REMIC
1
Principal Loss Allocation Amount”: With respect to any Distribution Date, an
amount equal to (a) the product of (i) the aggregate Stated Principal Balance
of
the Mortgage Loans and related REO Properties then outstanding and (ii) 1 minus
a fraction, the numerator of which is two times the aggregate of the
Uncertificated Principal Balances of REMIC 1 Regular Interest LT1A1, REMIC
1
Regular Interest LT1A2, REMIC 1 Regular Interest LT1A3, REMIC 1 Regular Interest
LT1M and REMIC 1 Regular Interest LT1B, and the denominator of which is the
aggregate of the Uncertificated Principal Balances of REMIC 1 Regular Interest
LT1A1, REMIC 1 Regular Interest LT1A2, REMIC 1 Regular Interest LT1A3, REMIC
1
Regular Interest LT1M, REMIC 1 Regular Interest LT1B and REMIC 1 Regular
Interest LT1ZZ.
“REMIC
1
Regular Interest”: Any of the separate non-certificated beneficial ownership
interests in REMIC 1 issued hereunder and designated as a “regular interest” in
REMIC 1. Each REMIC 1 Regular Interest shall accrue interest at the related
Uncertificated REMIC 1 Pass-Through Rate in effect from time to time, and shall
be entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Balance
as
set forth in the Preliminary Statement hereto. The following is a list of each
of the REMIC 1 Regular Interests: REMIC 1 Regular Interest LT1AA, REMIC 1
Regular Interest LT1A1, REMIC 1 Regular Interest LT1A2, REMIC 1 Regular Interest
LT1A3, REMIC 1 Regular Interest LT1M, REMIC 1 Regular Interest LT1B, REMIC
1
Regular Interest LT1ZZ and REMIC 1 Regular Interest LT1P.
“REMIC
1
Regular Interest LT1AA”: One of the separate non-certificated beneficial
ownership interests in REMIC 1 issued hereunder and designated as a Regular
Interest in REMIC 1. REMIC 1 Regular Interest LT1AA shall accrue interest at
the
related Uncertificated REMIC 1 Pass-Through Rate in effect from time to time,
and shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the Preliminary Statement hereto.
“REMIC
1
Regular Interest LT1A1”: One of the separate non-certificated beneficial
ownership interests in REMIC 1 issued hereunder and designated as a Regular
Interest in REMIC 1. REMIC 1 Regular Interest LT1A1 shall accrue interest at
the
related Uncertificated REMIC 1 Pass-Through Rate in effect from time to time,
and shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the Preliminary Statement hereto.
“REMIC
1
Regular Interest LT1A2”: One of the separate non-certificated beneficial
ownership interests in REMIC 1 issued hereunder and designated as a Regular
Interest in REMIC 1. REMIC 1 Regular Interest LT1A2 shall accrue interest at
the
related Uncertificated REMIC 1 Pass-Through Rate in effect from time to time,
and shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the Preliminary Statement hereto.
“REMIC
1
Regular Interest LT1A3”: One of the separate non-certificated beneficial
ownership interests in REMIC 1 issued hereunder and designated as a Regular
Interest in REMIC 1. REMIC 1 Regular Interest LT1A3 shall accrue interest at
the
related Uncertificated REMIC 1 Pass-Through Rate in effect from time to time,
and shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the Preliminary Statement hereto.
“REMIC
1
Regular Interest LT1B”: One of the separate non-certificated beneficial
ownership interests in REMIC 1 issued hereunder and designated as a Regular
Interest in REMIC 1. REMIC 1 Regular Interest LT1B shall accrue interest at
the
related Uncertificated REMIC 1 Pass-Through Rate in effect from time to time,
and shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the Preliminary Statement hereto.
“REMIC
1
Regular Interest LT1M”: One of the separate non-certificated beneficial
ownership interests in REMIC 1 issued hereunder and designated as a Regular
Interest in REMIC 1. REMIC 1 Regular Interest LT1M shall accrue interest at
the
related Uncertificated REMIC 1 Pass-Through Rate in effect from time to time,
and shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the Preliminary Statement hereto.
“REMIC
1
Regular Interest LT1ZZ”: One of the separate non-certificated beneficial
ownership interests in REMIC 1 issued hereunder and designated as a Regular
Interest in REMIC 1. REMIC 1 Regular Interest LT1ZZ shall accrue interest at
the
related Uncertificated REMIC 1 Pass-Through Rate in effect from time to time,
and shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the Preliminary Statement hereto.
“REMIC
1
Regular Interest LT1P”: One of the separate non-certificated beneficial
ownership interests in REMIC 1 issued hereunder and designated as a Regular
Interest in REMIC 1. REMIC 1 Regular Interest LT1P shall accrue interest at
the
related Uncertificated REMIC 1 Pass-Through Rate in effect from time to time,
and shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the Preliminary Statement hereto.
“REMIC
1
Target Overcollateralized Amount”: 1% of the Overcollateralization Target
Amount.
“REMIC
2”: The segregated pool of assets consisting of all of the REMIC 1 Regular
Interests conveyed in trust to the Trustee, for the benefit of the Holders
of
the Regular Certificates and the Class R Certificate (in respect of the Class
R-2 Interest), pursuant to Article II hereunder, and all amounts deposited
therein, with respect to which a separate REMIC election is to be
made.
“REMIC
Provisions”: Provisions of the federal income tax law relating to real estate
mortgage investment conduits which appear at Section 860A through 860G of
Subchapter M of Chapter 1 of the Code, and related provisions, and regulations
and rulings promulgated thereunder, as the foregoing may be in effect from
time
to time.
“Remittance
Period”: With respect to any Distribution Date, the period commencing on the
second day of the month preceding the month in which such Distribution Date
occurs and ending on the first day of the month in which such Distribution
Date
occurs.
“Remittance
Report”: A report prepared by the Servicer and delivered to the Trustee pursuant
to Section 4.03.
“Rents
from Real Property”: With respect to any REO Property, gross income of the
character described in Section 856(d) of the Code.
“REO
Account”: The account or accounts maintained by the Servicer in respect of an
REO Property pursuant to Section 3.25.
“REO
Disposition”: The sale or other disposition of an REO Property on behalf of the
Trust Fund.
“REO
Imputed Interest”: As to any REO Property, for any calendar month during which
such REO Property was at any time part of the Trust Fund, one month’s interest
at the applicable Net Mortgage Rate on the Stated Principal Balance of such
REO
Property (or, in the case of the first such calendar month, of the related
Mortgage Loan if appropriate) as of the Close of Business on the Distribution
Date in such calendar month.
“REO
Principal Amortization”: With respect to any REO Property, for any calendar
month, the excess, if any, of (a) the aggregate of all amounts received in
respect of such REO Property during such calendar month, whether in the form
of
rental income, sale proceeds (including, without limitation, that portion of
the
Termination Price paid in connection with a purchase of all of the Mortgage
Loans and REO Properties pursuant to Section 10.01 that is allocable to such
REO
Property) or otherwise, net of any portion of such amounts (i) payable pursuant
to Section 3.25 in respect of the proper operation, management and maintenance
of such REO Property or (ii) payable or reimbursable to the Servicer pursuant
to
Section 3.25 for unpaid Servicing Fees in respect of the related Mortgage Loan
and unreimbursed Servicing Advances and Advances in respect of such REO Property
or the related Mortgage Loan, over (b) the REO Imputed Interest in respect
of
such REO Property for such calendar month.
“REO
Property”: A Mortgaged Property acquired by the Servicer on behalf of the Trust
Fund through foreclosure or deed-in-lieu of foreclosure, as described in Section
3.25.
“Request
for Release”: A release signed by a Servicing Officer, in the form of Exhibit E
attached hereto.
“Reserve
Interest Rate”: With respect to any Interest Determination Date, the rate per
annum that the Trustee determines to be either (i) the arithmetic mean (rounded
upwards if necessary to the nearest whole multiple of 1/16 of 1%) of the
one-month United States dollar lending rates which banks in the City of New
York
selected by the Depositor are quoting on the relevant Interest Determination
Date to the principal London offices of leading banks in the London interbank
market or (ii) in the event that the Trustee can determine no such arithmetic
mean, in the case of any Interest Determination Date after the initial Interest
Determination Date, the lowest one-month United States dollar lending rate
which
such New York banks selected by the Depositor are quoting on such Interest
Determination Date to leading European banks.
“Residual
Interest”: The sole class of “residual interests” in a REMIC within the meaning
of Section 860G(a)(2) of the Code.
“Responsible
Officer”: When used with respect to the Trustee, any director, any vice
president, any assistant vice president, the Secretary, any assistant secretary,
the Treasurer, any assistant treasurer, the Cashier, any assistant cashier,
any
trust officer or assistant trust officer, the Controller and any assistant
controller or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and, with
respect to a particular matter, to whom such matter is referred because of
such
officer’s knowledge of and familiarity with the particular subject.
“S&P”:
Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc., or its successor in interest.
“Seller”:
IndyMac Bank, F.S.B. in its capacity as seller under the Mortgage Loan Purchase
Agreement.
“Servicer”:
IndyMac Bank, F.S.B., a federal savings bank, or any successor Servicer
appointed as herein provided, in its capacity as Servicer
hereunder.
“Servicer
Event of Termination”: One or more of the events described in Section
7.01.
“Servicer
Remittance Date”: With respect to any Distribution Date, the Business Day prior
to such Distribution Date.
“Servicing
Account”: The account or accounts created and maintained pursuant to Section
3.09.
“Servicing
Advances”: All customary, reasonable and necessary “out of pocket” costs and
expenses (including reasonable attorneys’ fees and expenses) incurred by the
Servicer in the performance of its servicing obligations, including, but not
limited to, the cost of (i) the preservation, restoration, inspection and
protection of the Mortgaged Property, (ii) any enforcement or judicial
proceedings, including foreclosures, (iii) the maintenance and liquidation
of
the REO Property and (iv) compliance with the obligations under Sections 3.01,
3.09, 3.16, and 3.25.
“Servicing
Fee”: With respect to each Mortgage Loan and for any calendar month, an amount
equal to one month’s interest (or in the event of any payment of interest which
accompanies a Principal Prepayment in full made by the Mortgagor during such
calendar month, interest for the number of days covered by such payment of
interest) at the Servicing Fee Rate on the same principal amount on which
interest on such Mortgage Loan accrues for such calendar month. A portion of
such Servicing Fee may be retained by any Sub-Servicer as its servicing
compensation.
“Servicing
Fee Rate”: 0.25% per annum.
“Servicing
Officer”: Any officer of the Servicer involved in, or responsible for, the
administration and servicing of Mortgage Loans, whose name and specimen
signature appear on a list of servicing officers furnished by the Servicer
to
the Trustee, the Certificate Insurer and the Depositor on the Closing Date,
as
such list may from time to time be amended.
“Servicing
Standard”: Shall mean the standards set forth in Section 3.01.
“Servicing
Transfer Costs”: Shall mean all reasonable costs and expenses (including without
limitation, legal fees and expenses) incurred by the Trustee in connection
with
the transfer of servicing from a predecessor Servicer, including, without
limitation, any reasonable costs or expenses associated with the complete
transfer of all servicing data and the completion, correction or manipulation
of
such servicing data as may be required by the Trustee to correct any errors
or
insufficiencies in the servicing data or otherwise to enable the Trustee or
another successor Servicer to service the Mortgage Loans properly and
effectively.
“Startup
Day”: As defined in Section 9.01(b) hereof.
“Stated
Principal Balance”: With respect to any Mortgage Loan: (a) as of any date of
determination up to but not including the Distribution Date on which the
proceeds, if any, of a Liquidation Event with respect to such Mortgage Loan
would be distributed, the outstanding Stated Principal Balance of such Mortgage
Loan as of the Cut-off Date, as shown in the Mortgage Loan Schedule, minus
the
sum of (i) the principal portion of each Monthly Payment due on a Due Date
subsequent to the Cut-off Date, to the extent received from the Mortgagor or
advanced by the Servicer and distributed pursuant to Section 4.01 on or before
such date of determination, (ii) all Principal Prepayments received after the
Cut-off Date, to the extent distributed pursuant to Section 4.01 on or before
such date of determination, (iii) all Liquidation Proceeds and Insurance
Proceeds to the extent distributed pursuant to Section 4.01 on or before such
date of determination, and (iv) any Realized Loss incurred with respect thereto
as a result of a Deficient Valuation made during or prior to the Remittance
Period for the most recent Distribution Date coinciding with or preceding such
date of determination; and (b) as of any date of determination coinciding with
or subsequent to the Distribution Date on which the proceeds, if any, of a
Liquidation Event with respect to such Mortgage Loan would be distributed,
zero.
With respect to any REO Property: (a) as of any date of determination up to
but
not including the Distribution Date on which the proceeds, if any, of a
Liquidation Event with respect to such REO Property would be distributed, an
amount (not less than zero) equal to the Stated Principal Balance of the related
Mortgage Loan as of the date on which such REO Property was acquired on behalf
of the Trust Fund, minus the aggregate amount of REO Principal Amortization
in
respect of such REO Property for all previously ended calendar months, to the
extent distributed pursuant to Section 4.01 on or before such date of
determination; and (b) as of any date of determination coinciding with or
subsequent to the Distribution Date on which the proceeds, if any, of a
Liquidation Event with respect to such REO Property would be distributed,
zero.
“Stepdown
Date”: The earlier to occur of (i) the Distribution Date following the
Distribution Date on which the aggregate Certificate Principal Balance of the
Class A Certificates have been reduced to zero and (ii) the later
to
occur of (a) the Distribution Date in October 2009 and (b) the first
Distribution Date on which the Credit Enhancement Percentage for the Class
A
Certificates (calculated for this purpose only after taking into account
distributions of principal on the Mortgage Loans on the last day of the related
Remittance Period but prior to any application of the Principal Distribution
Amount to the Certificates) is greater than or equal to 5.60%.
“Subordinated
Certificate”: Any Class M Certificate or Class B Certificate.
“Subsequent
Recoveries”: As of any Distribution Date, amounts received by the Servicer (net
of any related expenses permitted to be reimbursed pursuant to Section 3.05)
specifically related to a Mortgage Loan that was the subject of a liquidation
or
an REO Disposition prior to the related Prepayment Period that resulted in
a
Realized Loss.
“Sub-Servicer”:
Any Person with which the Servicer has entered into a Sub-Servicing Agreement
and which meets the qualifications of a Sub-Servicer pursuant to Section
3.02.
“Sub-Servicing
Account”: An account established by a Sub-Servicer which meets the requirements
set forth in Section 3.08 and is otherwise acceptable to the
Servicer.
“Sub-Servicing
Agreement”: The written contract between the Servicer and a Sub-Servicer
relating to servicing and administration of certain Mortgage Loans as provided
in Section 3.02.
“Substitution
Adjustment”: As defined in Section 2.03(d) hereof.
“Tax
Matters Person”: The tax matters person appointed pursuant to Section 9.01(e)
hereof.
“Termination
Price”: As defined in Section 10.01(a) hereof.
“Terminator”:
As defined in Section 10.01 hereof.
“Total
Monthly Excess Spread”: With respect to any Distribution Date, the sum of (i)
any Excess Overcollateralization Amount for such Distribution Date and (ii)
the
excess, if any, of (x) the Available Funds for such Distribution Date over
(y)
the sum for such Distribution Date of (A) the amount required to be distributed
pursuant to Section 4.01(a) and (B) the Principal Remittance Amount for such
Distribution Date.
“Transfer”:
Any direct or indirect transfer, sale, pledge, hypothecation, or other form
of
assignment of any Ownership Interest in a Certificate.
“Transferee”:
Any Person who is acquiring by Transfer any Ownership Interest in a
Certificate.
“Transferor”:
Any Person who is disposing by Transfer of any Ownership Interest in a
Certificate.
“Trigger
Event”: A Trigger Event is in effect if:
(i) with
respect to any Distribution Date occurring from and including October 2009
to,
but not including, October 2011, the Mortgage Loans 60 or more days Delinquent,
in bankruptcy, in foreclosure or that are secured by Mortgaged Properties that
have become REO Properties exceed 3.00% of the aggregate Stated Principal
Balance of the Mortgage Loans on such Distribution Date;
(ii) with
respect to any Distribution Date occurring on or after October 2011, the
Mortgage Loans 60 or more days Delinquent or that are secured by Mortgaged
Properties that have become REO Properties exceed 4.50% of the aggregate Stated
Principal Balance of the Mortgage Loans on such Distribution Date;
or
(iii) for
any
Distribution Date, the
cumulative amount of Realized Losses incurred on the Mortgage Loans from the
Cut-Off Date through the last day of the related Remittance Period (reduced
by
the aggregate amount of Subsequent Recoveries received from the Cut-Off Date
through the last day of the related Remittance Period) exceeds (a) 1.00% of
the
aggregate Stated Principal Balance of the Mortgage Loans with respect to the
Distribution Date in October 2008, plus an additional 1/12th of 0.75% of the
aggregate Stated Principal Balance of the Mortgage Loans for each Distribution
Date occurring in each month thereafter to and including the Distribution Date
in September 2009, (b) 1.75% of the aggregate Stated Principal Balance of the
Mortgage Loans with respect to the Distribution Date in October 2009, plus
an
additional 1/12th of 0.75% of the aggregate Stated Principal Balance of the
Mortgage Loans for each Distribution Date occurring in each month thereafter
to
and including the Distribution Date in September 2010, (c) 2.50% of the
aggregate Stated Principal Balance of the Mortgage Loans with respect to the
Distribution Date occurring in October 2010, plus an additional 1/12th of 0.50%
of the aggregate Stated Principal Balance of the Mortgage Loans for each
Distribution Date occurring in each month thereafter to and including the
Distribution Date in September 2011 or (d) 3.00% of the aggregate Stated
Principal Balance of the Mortgage Loans with respect to the Distribution Date
occurring in October 2011 and each month thereafter.
“Trust”:
The trust created hereunder.
“Trustee”:
Deutsche Bank National Trust Company, a national banking association, or its
successor in interest, or any successor Trustee appointed as herein
provided.
“Trustee
Fee”: The amount payable to the Trustee on each Distribution Date pursuant to
Section 4.01(a) and Section 8.05 as compensation for all services rendered
by it
in the execution of the Trust and in the exercise and performance of any of
the
powers and duties of the Trustee hereunder, which amount shall equal one month’s
interest at the Trustee Fee Rate on the aggregate Stated Principal Balance
of
the Mortgage Loans and any REO Properties as of the first day of the calendar
month prior to the month of such Distribution Date (or, in the case of the
initial Distribution Date, as of the Cut-off Date).
“Trustee
Fee Rate”: 0.015% per annum.
“Trustee
Float Period”: With respect to each Distribution Date and the related amounts in
the Distribution Account, the period commencing on the Business Day immediately
preceding such Distribution Date and ending on such Distribution
Date.
“Trust
Fund”: All of the assets of the trust created hereunder consisting of REMIC 1,
REMIC 2, the Excess Reserve Fund Account and the Insurance Account.
“Trust
REMIC”: REMIC 1 or REMIC 2.
“Uncertificated
Accrued Interest”: With respect to each REMIC Regular Interest on each
Distribution Date, an amount equal to one month’s interest at the related
Uncertificated REMIC Pass-Through Rate on the Uncertificated Principal Balance
or Uncertificated Notional Amount of such REMIC Regular Interest. In each case,
Uncertificated Accrued Interest will be reduced by any Net Prepayment Interest
Shortfalls and Relief Act Interest Shortfalls (allocated to such REMIC Regular
Interest as set forth in Section 1.02).
“Uncertificated
Principal Balance”: With respect to each REMIC Regular Interest, the amount of
such REMIC Regular Interest outstanding as of any date of determination. As
of
the Closing Date, the Uncertificated Principal Balance of each REMIC Regular
Interest shall equal the amount set forth in the Preliminary Statement hereto
as
its initial Uncertificated Principal Balance. On each Distribution Date, the
Uncertificated Principal Balance of each REMIC Regular Interest shall be reduced
by all distributions of principal made on such REMIC Regular Interest on such
Distribution Date pursuant to Section 4.04 and, if and to the extent necessary
and appropriate, shall be further reduced on such Distribution Date by Realized
Losses as provided in Section 4.05, and the Uncertificated Principal Balance
of
REMIC 1 Regular Interest LT1ZZ shall be increased by interest deferrals as
provided in Section 4.05. The Uncertificated Principal Balance of each REMIC
Regular Interest that has an Uncertificated Principal Balance shall never be
less than zero.
“Uncertificated
REMIC Pass-Through Rate”: The Uncertificated REMIC 1 Pass-Through
Rate.
“Uncertificated
REMIC 1 Pass-Through Rate”: With respect to each REMIC 1 Regular Interest, a per
annum rate equal to (A) for first Distribution Date, 6.245%
per annum and (B) thereafter, the
weighted average (weighted based on the Stated Principal Balances of the
Mortgage Loans as of the first day of the related Remittance Period, adjusted
to
reflect unscheduled principal payments made thereafter that were included in
the
Principal Distribution Amount on the immediately preceding Distribution Date)
of
the Expense Adjusted Mortgage Rates on the Mortgage Loans minus the Premium
Rate
on such Distribution Date (multiplied by a fraction the numerator of which
is
the aggregate Certificate Principal Balance of the Class A Certificates
immediately prior to such Distribution Date and the denominator of which is
the
aggregate Stated Principal Balance of the Mortgage Loans as of the first day
of
the related Remittance Period, adjusted to reflect unscheduled principal
payments made thereafter that were included in the Principal Distribution Amount
on the immediately preceding Distribution Date).
“Uninsured
Cause”: Any cause of damage to a Mortgaged Property such that the complete
restoration of such property is not fully reimbursable by the insurance policies
required to be maintained pursuant to Section 3.14.
“United
States Person”: A citizen or resident of the United States, a corporation,
partnership (or other entity treated as a corporation or partnership for United
States federal income tax purposes) created or organized in, or under the laws
of, the United States, any state thereof, or the District of Columbia (except
in
the case of a partnership, to the extent provided in Treasury regulations);
provided, that for purposes solely of the restrictions on the transfer of Class
R Certificates, no partnership or other entity treated as a partnership for
United States federal income tax purposes shall be treated as a United States
Person unless (a) all persons that own an interest in such partnership either
directly or through any entity that is not a corporation for United States
federal income tax purposes are required by the applicable operative agreement
to be United States Persons or (b) the partnership treats all income as
effectively connected income within the meaning of Section 864 of the Code,
or
an estate the income of which from sources without the United States is
includible in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within
the
United States, or 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 United States persons have authority to control all substantial decisions
of the trust. The term “United States” shall have the meaning set forth in
Section 7701 of the Code or successor provisions. The term “U.S. Person” refers
to a United States Person.
“Unpaid
Interest Shortfall Amount”: With respect to the Class A Certificates and any
Class of Subordinated Certificates and (i) the first Distribution Date, zero,
and (ii) any Distribution Date after the first Distribution Date, the amount,
if
any, by which (a) the sum of (1) the Accrued Certificate Interest for such
Class
for the immediately preceding Distribution Date and (2) the outstanding Unpaid
Interest Shortfall Amount, if any, for such Class for such preceding
Distribution Date exceeds (b) the aggregate amount distributed to such Class
in
respect of interest pursuant to clause (a) of this definition on such preceding
Distribution Date, plus interest on the amount of interest due but not paid
on
the Certificates of such Class on such preceding Distribution Date, to the
extent permitted by law, at the Pass-Through Rate for such Class for the related
Accrual Period.
“Value”:
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; 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.
“Voting
Rights”: The portion of the voting rights of all of the Certificates which is
allocated to any Certificate. At all times, the Class A Certificates, the
Subordinated Certificates, the Class P Certificates and the Class C Certificates
shall have 99% of the Voting Rights (allocated among the Holders of the Class
A
Certificates, the Subordinated Certificates and the Class C Certificates in
proportion to the then outstanding Certificate Principal Balances of their
respective Certificates), and the Class R Certificates shall have 1% of the
Voting Rights. The Voting Rights allocated to any Class of Certificates (other
than the Class R Certificates) shall be allocated among all Holders of each
such
Class in proportion to the outstanding Certificate Principal Balance or Notional
Amount of such Certificates; provided, that any Certificate registered in the
name of the Seller, the Depositor or its Affiliate shall not be eligible to
vote
or be considered 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 unless
the
Seller, the Depositor or its Affiliates own 100% of the related Class of such
Certificates. The Voting Rights allocated to the Class R Certificates shall
be
allocated among all Holders of such Class in proportion to such Holders’
respective Percentage Interests in the Class R Certificates; provided, however,
that when none of the Regular Certificates are outstanding, 100% of the Voting
Rights shall be allocated among Holders of the Class R Certificates in
accordance with such Holders’ respective Percentage Interests in the Class R
Certificates.
Section
1.02. Allocation
of Certain Interest Shortfalls.
For
purposes of calculating the amount of the Accrued Certificate Interest for
the
Class A Certificates, the Subordinated Certificates and the Class C Certificates
for any Distribution Date, the aggregate amount of any Net Prepayment Interest
Shortfalls and any Relief Act Interest Shortfalls incurred in respect of the
Mortgage Loans for any Distribution Date (together, “Net Interest Shortfalls”)
shall be allocated first, to reduce the interest accrued on the Class C
Certificates in the related Accrual Period up to an amount equal to one month’s
interest at the then applicable Pass-Through Rate on the Notional Amount of
such
Certificates and, thereafter, to reduce the interest accrued during the related
Accrual Period on the Class A Certificates and the Subordinated Certificates
on
a pro
rata
basis
based on, and to the extent of, one month’s interest at the then applicable
respective Pass-Through Rate on the respective Certificate Principal Balance
of
each such Certificate.
For
purposes of calculating the amount of Uncertificated Accrued Interest for the
REMIC 1 Regular Interests for any Distribution Date, the aggregate amount of
any
Net Prepayment Interest Shortfalls and any Relief Act Interest Shortfalls
incurred in respect of the Mortgage Loans for any Distribution Date shall be
allocated among REMIC 1 Regular Interest LT1AA, REMIC 1 Regular Interest LT1A1,
REMIC 1 Regular Interest LT1A2, REMIC 1 Regular Interest LT1A3, REMIC 1 Regular
Interest LT1M, REMIC 1 Regular Interest LT1B, REMIC 1 Regular Interest LT1ZZ
and
REMIC 1 Regular Interest LT1P pro
rata based
on,
and to the extent of, one month’s interest at the then applicable respective
Uncertificated REMIC 1 Pass-Through Rate on the respective Uncertificated
Principal Balance of each such REMIC 1 Regular Interest.
Section
1.03. Accounting.
Unless
otherwise specified herein, for the purpose of any definition or calculation,
whenever amounts are required to be netted, subtracted or added or any
distributions are required to be taken into account, such definition or
calculation, and any related definitions or calculations, shall be determined
without duplication of such functions.
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS;
ORIGINAL
ISSUANCE OF CERTIFICATES
Section
2.01. Conveyance
of Mortgage Loans.
The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey to the Trustee without recourse,
in trust for the benefit of the Certificateholders and the Certificate Insurer,
all the right, title and interest of the Depositor, including any security
interest therein for the benefit of the Depositor, in and to: (i) each Mortgage
Loan identified on the Mortgage Loan Schedule, including the related Stated
Principal Balance as of the Cut-off Date, all interest and principal received
thereon after the Cut-off Date (other than interest and principal due on such
Mortgage Loans on or before the Cut-off Date and other than Prepaid Interest
with respect to such Mortgage Loans); (ii) property which secured each such
Mortgage Loan and which has been acquired by foreclosure or deed in lieu of
foreclosure; (iii) its interest in any insurance policies in respect of the
Mortgage Loans; (iv) all proceeds of any of the foregoing; (v) the rights of
the
Depositor under the Mortgage Loan Purchase Agreement; and (vi) all other assets
included or to be included in the Trust Fund.
In
connection with such transfer and assignment, the Depositor does hereby deliver
to, and deposit with, the Trustee or its designated agent (the “Custodian”), the
following documents or instruments with respect to each Mortgage Loan so
transferred and assigned (with respect to each Mortgage Loan, a “Mortgage
File”):
(i) the
original Mortgage Note, endorsed either (A) in blank or (B) in the following
form: “Pay to the order of Deutsche Bank National Trust Company, as Trustee,
without recourse”, or with respect to any lost Mortgage Note, an original Lost
Note Affidavit stating that the original Mortgage Note was lost, misplaced
or
destroyed, together with a copy of the related Mortgage Note; provided, however,
that such substitutions of Lost Note Affidavits for original Mortgage Notes
may
occur only with respect to Mortgage Loans, the aggregate Stated Principal
Balance of which is less than or equal to 2.0% of the Pool Balance as of the
Cut-off Date;
(ii) the
original Mortgage with evidence of recording thereon, and the original recorded
power of attorney, if the Mortgage was executed pursuant to a power of attorney,
with evidence of recording thereon or, if such Mortgage or power of attorney
has
been submitted for recording but has not been returned from the applicable
public recording office, has been lost or is not otherwise available, a copy
of
such Mortgage or power of attorney, as the case may be, certified to be a true
and complete copy of the original submitted for recording;
(iii) an
original Assignment, in form and substance acceptable for recording. The
Mortgage shall be assigned either (A) in blank or (B) to “Deutsche Bank National
Trust Company, as Trustee, without recourse”;
(iv) an
original copy of any intervening Assignment, showing a complete chain of
assignments;
(v) the
original or a certified copy of the lender’s title insurance policy;
and
(vi) the
original or copies of each assumption, modification, written assurance or
substitution agreement, if any.
With
respect to up to 30% of the Mortgage Loans, the Depositor may deliver all or
a
portion of each related Mortgage File to the Trustee not later than five
Business Days after the Closing Date (such Mortgage Loans, the “Delayed Delivery
Mortgage Loans”).
If
any of
the documents referred to in Section 2.01(ii), (iii) or (iv) above has as of
the
Closing Date been submitted for recording but either (x) has not been returned
from the applicable public recording office or (y) has been lost or such public
recording office has retained the original of such document, the obligations
of
the Depositor to deliver such documents shall be deemed to be satisfied upon
(1)
delivery to the Trustee or the Custodian no later than the Closing Date, of
a
copy of each such document certified by the Servicer, in its capacity as Seller,
in the case of (x) above or the applicable public recording office in the case
of (y) above to be a true and complete copy of the original that was submitted
for recording and (2) if such copy is certified by the Servicer, in its capacity
as Seller, delivery to the Trustee or the Custodian, promptly upon receipt
thereof of either the original or a copy of such document certified by the
applicable public recording office to be a true and complete copy of the
original. If the original lender’s title insurance policy, or a certified copy
thereof, was not delivered pursuant to Section 2.01(v) above, the Depositor
shall deliver or cause to be delivered to the Trustee or the Custodian, 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 a certified copy thereof to be delivered to the Trustee or the
Custodian, promptly upon receipt thereof. The Servicer or the Depositor shall
deliver or cause to be delivered to the Trustee or the Custodian promptly upon
receipt thereof any other documents constituting a part of a Mortgage File
received with respect to any Mortgage Loan, including, but not limited to,
any
original documents evidencing an assumption or modification of any Mortgage
Loan.
Upon
discovery or receipt of notice of any materially defective document in, or
that
a document is missing from, a Mortgage File, the Servicer, in its capacity
as
Seller, shall have 90 days to cure such defect or deliver such missing document
to the Trustee or the Custodian, to the extent required pursuant to Section
2.03. If the Seller does not cure such defect or deliver such missing document
within such time period, the Servicer, in its capacity as Seller, shall either
repurchase or substitute for such Mortgage Loan in accordance with Section
2.03,
to the extent required pursuant to Section 2.03.
The
Depositor (at the expense of the Seller) shall cause the Assignments which
were
delivered in blank to be completed and shall cause all Assignments referred
to
in Section 2.01(iii) hereof and, to the extent necessary, in Section 2.01(iv)
hereof to be recorded. The Depositor shall furnish the Trustee, or its
designated agent, with a copy of each Assignment submitted for recording. In
the
event that any such Assignment is lost or returned unrecorded because of a
defect therein, the Depositor shall promptly have a substitute Assignment
prepared or have such defect cured, as the case may be, and thereafter cause
each such Assignment to be duly recorded.
Notwithstanding
the foregoing, however, for administrative convenience and facilitation of
servicing and to reduce closing costs, the Assignments 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 result in a withdrawal or a
downgrading by any Rating Agency of the rating on any Class of Certificates
(with respect to the Class A Certificates only, without regard to the
Certificate Policy; provided further, however, each Assignment shall be
submitted for recording by the Originator (or by the Servicer at the expense
of
the Originator in the case of clauses (v) and (vi) below) in the manner
described above, at no expense to the Trust Fund, the Servicer or the Trustee,
upon the earliest to occur of: (i) direction by Holders of Certificates entitled
to at least 25% of the Voting Rights, (ii) [reserved], (iii) the occurrence
of a
bankruptcy or insolvency relating to the Originator, (iv) the occurrence of
a
servicing transfer as described in Section 7.02 hereof, (v) with respect to
any
one Assignment, the occurrence of a bankruptcy, insolvency or foreclosure
relating to the Mortgagor under the related Mortgage and (vi) with respect
to
any Assignments, the payment in full of the related Mortgage Note if required
in
the applicable jurisdiction. Notwithstanding the foregoing, if the Originator
is
unable to pay the cost of recording the Assignments, such expense shall be
paid
by the Trustee and shall be reimbursable to the Trustee as an Extraordinary
Trust Fund Expense.
The
Depositor herewith delivers to the Trustee an executed original of the Mortgage
Loan Purchase Agreement.
The
Servicer shall forward to the Custodian original documents evidencing an
assumption, modification, consolidation or extension of any Mortgage Loan
entered into in accordance with this Agreement within two weeks of their
execution; provided, however, that the Servicer shall provide the Custodian
with
a certified true copy of any such document submitted for recordation within
two
weeks of its execution, and shall provide the original of any document submitted
for recordation or a copy of such document certified by the appropriate public
recording office to be a true and complete copy of the original within 270
days
of its submission for recordation. In the event that the Servicer cannot provide
a copy of such document certified by the public recording office within such
270
day period, the Servicer shall deliver to the Custodian, within such 270 day
period, an Officer’s Certificate of the Servicer which shall (A) identify the
recorded document, (B) state that the recorded document has not been delivered
to the Custodian due solely to a delay caused by the public recording office,
(C) state the amount of time generally required by the applicable recording
office to record and return a document submitted for recordation, if known,
and
(D) specify the date the applicable recorded document is expected to be
delivered to the Custodian, and, upon receipt of a copy of such document
certified by the public recording office, the Servicer shall immediately deliver
such document to the Custodian. In the event the appropriate public recording
office will not certify as to the accuracy of such document, the Servicer shall
deliver a copy of such document certified by an officer of the Servicer to
be a
true and complete copy of the original to the Custodian.
Notwithstanding
anything to the contrary in this Agreement, within five Business Days after
the
Closing Date, the Depositor shall either:
(x) deliver
to the Trustee the Mortgage File as required pursuant to this Section 2.01
for
each Delayed Delivery Mortgage Loan; or
(y)(A) cause
the
Seller to repurchase the Delayed Delivery Mortgage Loan or (B) substitute a
Qualified Substitute Mortgage Loan for a Delayed 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 Delayed Delivery Mortgage
Loan as a Deleted Mortgage Loan for purposes of such Section 2.03);
provided,
however, that if the Depositor fails to deliver a Mortgage File for any Delayed
Delivery Mortgage Loan within the period specified herein, the Depositor shall
cause the Seller to use its best reasonable efforts to effect a substitution,
rather than a repurchase of, such Delayed Delivery Mortgage Loan; 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 Delayed
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 certification for the Delayed Delivery Mortgage Loans delivered during
such period in accordance with the provisions of Section 2.02.
Section
2.02. Acceptance
by Trustee.
Subject
to the provisions of Section 2.01 and subject to the review described below
and
any exceptions noted on the exception report described in the next paragraph
below, the Trustee acknowledges receipt of the documents referred to in Section
2.01 above and all other assets included in the definition of “Trust Fund” and
declares that it holds and will hold such documents and the other documents
delivered to it constituting a Mortgage File, and that it holds or will hold
all
such assets and such other assets included in the definition of “Trust Fund” in
trust for the exclusive use and benefit of all present and future
Certificateholders and the Certificate Insurer.
The
Trustee agrees, for the benefit of the Certificateholders and the Certificate
Insurer, to execute and deliver (or cause the Custodian to execute and deliver)
to the Depositor on or prior to the Closing Date an acknowledgment of receipt
of
the original Mortgage Notes (with any exceptions noted), substantially in the
form attached as Exhibit F-3 hereto.
The
Trustee agrees, for the benefit of the Certificateholders and the Certificate
Insurer, to review, or that it has reviewed pursuant to Section 2.01 (or to
cause the Custodian to review or that it has caused the Custodian to have
reviewed), each Mortgage File on or prior to the Closing Date, with respect
to
each Mortgage Loan (or, with respect to any document delivered after the Startup
Day, within 45 days of receipt and with respect to any Qualified Substitute
Mortgage Loan, within 45 days after the assignment thereof). The Trustee further
agrees, for the benefit of the Certificateholders and the Certificate Insurer,
to certify in substantially the form attached hereto as Exhibit F-1, within
45
days after the Closing Date, with respect to each Mortgage Loan (or, with
respect to any document delivered after the Startup Day, within 45 days of
receipt and with respect to any Qualified Substitute Mortgage, within 45 days
after the assignment thereof) that, as to each Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Mortgage Loan paid in full or any
Mortgage Loan specifically identified in the exception report annexed thereto
as
not being covered by such certification), (i) all documents required to be
delivered to it pursuant Section 2.01 of this Agreement are in its possession,
(ii) such documents have been reviewed by it and have not been mutilated,
damaged or torn and relate to such Mortgage Loan and (iii) based on its
examination and only as to the foregoing, the information set forth in the
Mortgage Loan Schedule that corresponds to items (1) and (2) of the Mortgage
Loan Schedule accurately reflects information set forth in the Mortgage File.
It
is herein acknowledged that, in conducting such review, the Trustee (or the
Custodian, as applicable) is under no duty or obligation to inspect, review
or
examine any such documents, instruments, certificates or other papers to
determine that they are genuine, enforceable, or appropriate for the represented
purpose or that they have actually been recorded or that they are other than
what they purport to be on their face.
Within
the year commencing on the Closing Date and ending on the first anniversary
date
of the Closing Date, the Trustee shall deliver (or cause the Custodian to
deliver) to the Depositor, the Seller, the Certificate Insurer and the Servicer
a final certification in the form annexed hereto as Exhibit F-2 evidencing
the
completeness of the Mortgage Files, with any applicable exceptions noted
thereon.
If
in the
process of reviewing the Mortgage Files and making or preparing, as the case
may
be, the certifications referred to above, the Trustee (or the Custodian, as
applicable) finds any document or documents constituting a part of a Mortgage
File to be missing or to not meet the requirements of Section 2.01, at the
conclusion of its review the Trustee shall indicate such on the exception report
annexed to the final certification sent to the Seller, the Depositor, the
Certificate Insurer and the Servicer. In addition, upon the discovery by the
Seller, the Depositor, the Certificate Insurer or the Servicer (or upon receipt
by the Trustee of written notification of such breach) of a breach of any of
the
representations and warranties made by the Seller in the Mortgage Loan Purchase
Agreement in respect of any Mortgage Loan which materially adversely affects
such Mortgage Loan or the interests of the Certificateholders in such Mortgage
Loan, the party discovering such breach shall give prompt written notice to
the
other parties to this Agreement.
Section
2.03. Repurchase
or Substitution of Mortgage Loans by the Seller.
(a) Upon
discovery or receipt of written notice of any document which does not conform
to
the requirements of Section 2.01, or that a document is missing from a Mortgage
File, or of the breach by the Seller of any representation, warranty or covenant
under the Mortgage Loan Purchase Agreement in respect of any Mortgage Loan
which
in any such case materially adversely affects the value of such Mortgage Loan
or
the interest therein of the Certificateholders or the Certificate Insurer,
the
Trustee shall promptly notify the Seller, the Depositor, the Certificate Insurer
and the Servicer of such defect, missing document or breach and request that
the
Seller, if and to the extent required under the Mortgage Loan Purchase
Agreement, deliver such missing document or cure such defect or breach within
90
days from the date the Seller was notified of such missing document, defect
or
breach, and if the Seller does not deliver such missing document or cure such
defect or breach in all material respects during such period, if and to the
extent required under the Mortgage Loan Purchase Agreement, the Servicer or
the
Trustee, in accordance with Section 3.02(b), shall enforce the Seller’s
obligation under the Mortgage Loan Purchase Agreement and cause the Seller
to
repurchase such Mortgage Loan from the Trust Fund at the Purchase Price on
or
prior to the Determination Date following the expiration of such 90 day period;
provided, that in connection with any such breach that could not reasonably
have
been cured within such 90 day period, if the Seller shall have commenced to
cure
such breach within such 90 day period, the Seller shall be permitted to proceed
thereafter diligently and expeditiously to cure the same within the additional
period provided under the Mortgage Loan Purchase Agreement. The Purchase Price
for the repurchased Mortgage Loan shall be deposited in the Certificate Account,
and the Trustee, upon receipt of written certification from the Servicer of
such
deposit, shall release to the Seller the related Mortgage File and shall execute
and deliver such instruments of transfer or assignment, in each case without
recourse, as the Seller shall furnish to it and as shall be necessary to vest
in
the Seller any Mortgage Loan released pursuant hereto and the Trustee shall
have
no further responsibility with regard to such Mortgage File (it being understood
that the Trustee shall have no responsibility for determining the sufficiency
of
such assignment for its intended purpose). In lieu of repurchasing any such
Mortgage Loan as provided above, the Seller may cause such Mortgage Loan to
be
removed from the Trust Fund (in which case it shall become a Deleted Mortgage
Loan) and substitute one or more Qualified Substitute Mortgage Loans in the
manner and subject to the limitations set forth in Section 2.03(d). It is
understood and agreed (i) that the obligation of the Seller to cure or to
repurchase (or to substitute for) any Mortgage Loan as to which a document
is
missing, a material defect in a constituent document exists or as to which
such
a breach has occurred and is continuing shall constitute the sole remedy against
the Seller respecting such omission, defect or breach available to the Trustee
on behalf of the Certificateholders and the Certificate Insurer and (ii) that
the Seller shall not have any obligation to provide any such cure, repurchase
or
substitution remedy with respect to any such defect or breach to the extent
such
defect or breach occurred as a result of the problem associated with the related
Mortgage Loan that is identified on Schedule II to the Mortgage Loan Purchase
Agreement.
(b) As
promptly as practicable following the earlier of discovery by the Depositor
or
receipt of notice by the Depositor of the breach of any representation, warranty
or covenant of the Depositor set forth in Section 2.06 which materially and
adversely affects the interests of the Certificateholders or the Certificate
Insurer in any Mortgage Loan, the Depositor shall cure such breach in all
material respects.
(c) As
promptly as practicable following the earlier of discovery by the Servicer
or
receipt of notice by the Servicer of the breach of any representation, warranty
or covenant of the Servicer set forth in Section 2.05 which materially and
adversely affects the interests of the Certificateholders in any Mortgage Loan,
the Servicer shall cure such breach in all material respects.
(d) Any
substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans
made pursuant to Section 2.03(a) must be effected prior to the last Business
Day
that is two years after the Closing Date. The final maturity date of such
Qualified Substitute Mortgage Loan must be on or before March 2011. As to any
Deleted Mortgage Loan for which the Seller substitutes a Qualified Substitute
Mortgage Loan or Loans, such substitution shall be effected by the Seller
delivering to the Trustee, for such Qualified Substitute Mortgage Loan or Loans,
the Mortgage Note, the Mortgage and the Assignment to the Trustee, and such
other documents and agreements, with all necessary endorsements thereon, as
are
required by Section 2.01, together with an Officers’ Certificate providing that
each such Qualified Substitute Mortgage Loan satisfies the definition thereof
and specifying the Substitution Adjustment (as described below), if any, in
connection with such substitution. The Trustee shall acknowledge receipt for
such Qualified Substitute Mortgage Loan or Loans and, within ten Business Days
thereafter, shall review such documents as specified in Section 2.02 and deliver
to the Servicer, with respect to such Qualified Substitute Mortgage Loan or
Loans, a certification substantially in the form attached hereto as Exhibit
F-1,
with any applicable exceptions noted thereon. Within one year of the date of
substitution, the Trustee shall deliver to the Servicer a certification
substantially in the form of Exhibit F-2 hereto with respect to such Qualified
Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon.
Monthly Payments due with respect to Qualified Substitute Mortgage Loans in
the
month of substitution are not part of the Trust Fund and will be retained by
the
Seller. For the month of substitution, distributions to Certificateholders
will
reflect the collections and recoveries in respect of such Deleted Mortgage
Loan
in the Remittance Period ending in the month of substitution and the Seller
shall thereafter be entitled to retain all amounts subsequently received in
respect of such Deleted Mortgage Loan. The Trustee shall give written notice
to
the Certificateholders and the Certificate Insurer that such substitution has
taken place, and the Servicer shall amend the Mortgage Loan Schedule to reflect
the removal of such Deleted Mortgage Loan from the terms of this Agreement
and
the substitution of the Qualified Substitute Mortgage Loan or Loans and shall
deliver a copy of such amended Mortgage Loan Schedule to the Trustee. Upon
such
substitution by the Seller, such Qualified Substitute Mortgage Loan or Loans
shall constitute part of the Mortgage Pool and shall be subject in all respects
to the terms of this Agreement and the Mortgage Loan Purchase Agreement,
including all applicable representations and warranties thereof included in
the
Mortgage Loan Purchase Agreement as of the date of substitution.
For
any
month in which the Seller substitutes one or more Qualified Substitute Mortgage
Loans for one or more Deleted Mortgage Loans, the Servicer will determine the
amount (the “Substitution Adjustment”), if any, by which the aggregate Purchase
Price of all such Deleted Mortgage Loans exceeds the aggregate, as to each
such
Qualified Substitute Mortgage Loan, of the Stated Principal Balance thereof
as
of the date of substitution, together with one month’s interest on such Stated
Principal Balance at the applicable Net Mortgage Rate. On the date of such
substitution, the Seller will deliver or cause to be delivered to the Servicer
for deposit in the Certificate Account, to the extent required under the
Mortgage Loan Purchase Agreement, an amount equal to the Substitution
Adjustment, if any, and the Trustee, upon receipt of the related Qualified
Substitute Mortgage Loan or Loans and certification by the Servicer of such
deposit, shall release to the Seller the Mortgage File or Files with respect
to
the applicable Deleted Mortgage Loan(s), and shall execute and deliver such
instruments of transfer or assignment, in each case without recourse, as the
Seller shall deliver to it and as shall be necessary to vest therein any Deleted
Mortgage Loan released pursuant hereto.
In
addition, the Seller shall obtain at its own expense and deliver to the Trustee
and the Certificate Insurer an Opinion of Counsel to the effect that such
substitution will not cause (a) any federal tax to be imposed on the Trust
Fund,
including without limitation, any federal tax imposed on “prohibited
transactions” under Section 860F(a)(l) of the Code or on “contributions after
the startup date” under Section 860G(d)(l) of the Code or (b) any REMIC to fail
to qualify as a REMIC at any time that any Certificate is outstanding. If such
Opinion of Counsel can not be delivered, then such substitution may only be
effected at such time as the required Opinion of Counsel can be
given.
(e) Upon
discovery by the Depositor, the Certificate Insurer or the Servicer or receipt
of written notice by 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, within two Business Days, give written notice
thereof to the other parties hereto. In connection therewith, the Servicer
or
the Trustee, in accordance with Section 3.02(b), shall enforce the obligations
of the Seller to repurchase or, subject to the limitations set forth in Section
2.03(d), substitute one or more Qualified Substitute Mortgage Loans for the
affected Mortgage Loan within 90 days of the earlier of discovery or receipt
of
such notice with respect to such affected Mortgage Loan. Such repurchase or
substitution shall be made by the Seller if the affected Mortgage Loan’s status
as a non-qualified mortgage is or results from a breach of any representation,
warranty or covenant made by the Seller under the Mortgage Loan Purchase
Agreement. Any such repurchase or substitution shall be made in the same manner
as set forth in Section 2.03(d). The Trustee shall reconvey to the Seller,
as
the case may be, 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 pursuant to Section 2.03(a).
Section
2.04. [Reserved].
Section
2.05. Representations,
Warranties and Covenants of the Servicer.
The
Servicer hereby represents, warrants and covenants to the Trustee, for the
benefit of each of the Trustee, the Certificate Insurer and the
Certificateholders, and to the Depositor that as of the Closing Date or as
of
such date specifically provided herein:
(i) The
Servicer is duly organized, validly existing and in good standing under the
laws
of the United States and has all licenses necessary to carry on its business
as
now being conducted and is licensed, qualified and in good standing in the
states where each Mortgaged Property is located if the laws of such state
require licensing or qualification in order to conduct business of the type
conducted by the Servicer or to ensure the enforceability or validity of each
Mortgage Loan; the Servicer has the power and authority to execute and deliver
this Agreement and to perform in accordance herewith; the execution, delivery
and performance of this Agreement (including all instruments of transfer to
be
delivered pursuant to this Agreement) by the Servicer and the consummation
of
the transactions contemplated hereby have been duly and validly authorized;
this
Agreement evidences the valid, binding and enforceable obligation of the
Servicer, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors’ rights
generally; and all requisite corporate action has been taken by the Servicer
to
make this Agreement valid and binding upon the Servicer in accordance with
its
terms;
(ii) The
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Servicer and will not result in the breach
of
any term or provision of the charter or by-laws of the Servicer or result in
the
breach of any term or provision of, or conflict with or constitute a default
under or result in the acceleration of any obligation under, any agreement,
indenture or loan or credit agreement or other instrument to which the Servicer
or its property is subject, or result in the violation of any law, rule,
regulation, order, judgment or decree to which the Servicer or its property
is
subject;
(iii) The
execution and delivery of this Agreement by the Servicer and the performance
and
compliance with its obligations and covenants hereunder do not require the
consent or approval of any governmental authority or, if such consent or
approval is required, it has been obtained;
(iv) This
Agreement, and all documents and instruments contemplated hereby which are
executed and delivered by the Servicer, constitute and will constitute valid,
legal and binding obligations of the Servicer, enforceable in accordance with
their respective terms, except as the enforcement thereof may be limited by
applicable bankruptcy laws and general principles of equity;
(v)
[Reserved];
(vi) The
Servicer does not believe, nor does it have any reason or cause to believe,
that
it cannot perform each and every covenant contained in this
Agreement;
(vii) There
is
no action, suit, proceeding or investigation pending or, to its knowledge,
threatened against the Servicer that, either individually or in the aggregate,
(A) may result in any change in the business, operations, financial condition,
properties or assets of the Servicer that might prohibit or materially and
adversely affect the performance by such Servicer of its obligations under,
or
validity or enforceability of, this Agreement, or (B) may result in any material
impairment of the right or ability of the Servicer to carry on its business
substantially as now conducted, or (C) may result in any material liability
on
the part of the Servicer, or (D) would draw into question the validity or
enforceability of this Agreement or of any action taken or to be taken in
connection with the obligations of the Servicer contemplated herein, or (E)
would otherwise be likely to impair materially the ability of the Servicer
to
perform under the terms of this Agreement;
(viii) Neither
this Agreement nor any information, certificate of an officer, statement
furnished in writing or report delivered to the Trustee by the Servicer in
connection with the transactions contemplated hereby contains any untrue
statement of a material fact; and
(ix) The
Servicer covenants that its computer and other systems used in servicing the
Mortgage Loans operate in a manner such that the Servicer can service the
Mortgage Loans in accordance with the terms of this Agreement.
It
is
understood and agreed that the representations, warranties and covenants set
forth in this Section 2.05 shall survive delivery of the Mortgage Files to
the
Trustee and shall inure to the benefit of the Trustee, the Depositor, the
Certificate Insurer and the Certificateholders. Upon discovery by any of the
Depositor, the Servicer, the Seller, the Certificate Insurer or the Trustee
of a
breach of any of the foregoing representations, warranties and covenants which
materially and adversely affects the value of any Mortgage Loan, or the
interests therein of the Certificateholders and the Certificate Insurer, the
party discovering such breach shall give prompt written notice (but in no event
later than two Business Days following such discovery) to the Servicer, the
Seller, the Certificate Insurer and the Trustee.
Section
2.06. Representations
and Warranties of the Depositor.
The
Depositor represents and warrants to the Trust and to the Trustee, for the
benefit of each of the Trustee, the Certificateholders and the Certificate
Insurer, that as of the Closing Date or as of such date specifically provided
herein:
(i) This
Agreement constitutes a legal, valid and binding obligation of the Depositor,
enforceable against the Depositor in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws, now or hereafter in effect,
affecting the enforcement of creditors’ rights in general and except as such
enforceability may be limited by general principles of equity (whether
considered in a proceeding at law or in equity);
(ii) Immediately
prior to the sale and assignment by the Depositor to the Trustee on behalf
of
the Trust of each Mortgage Loan, the Depositor had good and marketable title
to
each Mortgage Loan (insofar as such title was conveyed to it by the Seller)
subject to no prior lien, claim, participation interest, mortgage, security
interest, pledge, charge or other encumbrance or other interest of any
nature;
(iii) As
of the
Closing Date, the Depositor has transferred all right, title and interest in
the
Mortgage Loans to the Trustee on behalf of the Trust;
(iv) The
Depositor has not transferred the Mortgage Loans to the Trustee on behalf of
the
Trust with any intent to hinder, delay or defraud any of its
creditors;
(v) The
Depositor has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of Delaware, with full corporate power and
authority to own its assets and conduct its business as presently being
conducted;
(vi) The
Depositor is not in violation of its articles of incorporation or by-laws or
in
default in the performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Depositor is a party
or
by which it or its properties may be bound, which default might result in any
material adverse changes in the financial condition, earnings, affairs or
business of the Depositor or which might materially and adversely affect the
properties or assets, taken as a whole, of the Depositor or the ability of
the
Depositor to perform its obligations under this Agreement;
(vii) The
execution, delivery and performance of this Agreement by the Depositor, and
the
consummation of the transactions contemplated thereby, do not and will not
result in a material breach or violation of any of the terms or provisions
of,
or constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Depositor is a party
or
by which the Depositor is bound or to which any of the property or assets of
the
Depositor is subject, nor will such actions result in any violation of the
provisions of the articles of incorporation or by-laws of the Depositor or
any
statute or any order, rule or regulation of any court or governmental agency
or
body having jurisdiction over the Depositor or any of its properties or assets
(except for such conflicts, breaches, violations and defaults as would not have
a material adverse effect on the ability of the Depositor to perform its
obligations under this Agreement and as would not have a material adverse effect
on the validity of this Agreement or the Certificates);
(viii) No
consent, approval, authorization, order, registration or qualification of or
with any court or governmental agency or body of the United States or any other
jurisdiction is required for the issuance of the Certificates, or the
consummation by the Depositor of the other transactions contemplated by this
Agreement, except such consents, approvals, authorizations, registrations or
qualifications as (a) may be required under state securities or Blue Sky laws,
(b) have been previously obtained or (c) the failure of which to obtain would
not have a material adverse effect on the performance by the Depositor of its
obligations under, or the validity or enforceability of, this Agreement;
and
(ix) There
are
no actions, proceedings or investigations pending before or, to the Depositor’s
knowledge, threatened by any court, administrative agency or other tribunal
to
which the Depositor is a party or of which any of its properties is the subject:
(a) which if determined adversely to the Depositor would have a material adverse
effect on the business, results of operations or financial condition of the
Depositor; (b) asserting the invalidity of this Agreement or the Certificates;
(c) seeking to prevent the issuance of the Certificates or the consummation
by
the Depositor of any of the transactions contemplated by this Agreement, as
the
case may be; or (d) which might materially and adversely affect the performance
by the Depositor of its obligations under, or the validity or enforceability
of,
this Agreement. It is understood and agreed that the representations and
warranties set forth in this Section 2.06 shall survive delivery of the Mortgage
Files to the Trustee and shall inure to the of the Certificateholders
and
the
Certificate Insurer
notwithstanding any restrictive or qualified endorsement or assignment. Upon
discovery by any of the Depositor, the Servicer, the Certificate Insurer or
the
Trustee of a breach of any of the foregoing representations and warranties
which
materially and adversely affects the value of any Mortgage Loan or the interests
therein of the Certificateholders and the Certificate Insurer, the party
discovering such breach shall give prompt written notice to the other parties
hereto, and in no event later than two Business Days from the date of such
discovery. Unless such breach shall not be susceptible of cure within 90 days,
the obligation of the Depositor set forth in Section 2.03(b) to cure breaches
shall constitute the sole remedy against the Depositor available to the
Certificateholders, the Servicer and the Trustee on behalf of the
Certificateholders respecting a breach of the representations, warranties and
covenants contained in this Section 2.06.
Section
2.07. Issuance
of Certificates.
The
Trustee acknowledges the assignment to it of the Mortgage Loans and the delivery
to it of the Mortgage Files, subject to the provisions of Sections 2.01 and
2.02, together with the assignment to it of all other assets included in the
Trust Fund, receipt of which is hereby acknowledged. Concurrently with such
assignment and delivery and in exchange therefor, the Trustee, pursuant to
the
written request of the Depositor executed by an officer of the Depositor, has
executed, authenticated and delivered to or upon the order of the Depositor,
the
Certificates in authorized denominations. The interests evidenced by the
Certificates, constitute the entire beneficial ownership interest in the Trust
Fund. The rights of the Certificateholders to receive distributions from the
proceeds of the Trust Fund in respect of the Certificates, and all ownership
interests evidenced or constituted by the Certificates, shall be as set forth
in
this Agreement.
Section
2.08. Conveyance
of REMIC 1 Regular Interests and Acceptance of REMIC 2 by
Trustee.
(a) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the assets
described in the definition of REMIC 1 for the benefit of the holders of the
REMIC 1 Regular Interests (which are uncertificated) and the Class R
Certificates (in respect of the Class R-1 Interest). The Trustee acknowledges
receipt of the assets described in the definition of REMIC 1 and declares that
it holds and will hold the same in trust for the exclusive use and benefit
of
the holders of the REMIC 1 Regular Interests and the Class R Certificates (in
respect of the Class R-1 Interest). The interests evidenced by the Class R-1
Interest, together with the REMIC 1 Regular Interests, constitute the entire
beneficial ownership interest in REMIC 1.
(b) Reserved.
(c) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the REMIC
1 Regular Interests (which are uncertificated) for the benefit of the Holders
of
the REMIC 2 Regular Interests (which are uncertificated) and the Class R
Certificates (in respect of the Class R-2 Interest). The Trustee acknowledges
receipt of the REMIC 1 Regular Interests and declares that it holds and will
hold the same in trust for the exclusive use and benefit of the Holders of
the
Regular Certificates and the Class R Certificates (in respect of the Class
R-2
Interest). The interests evidenced by the Class R-2 Interest, together with
the
Regular Certificates, constitute the entire beneficial ownership interest in
REMIC 2.
(d) Reserved.
(e) Concurrently
with (i) the assignment and delivery to the Trustee of REMIC 1 (including the
Residual Interest therein represented by the Class R-1 Interest) and the
acceptance by the Trustee thereof, pursuant to Section 2.08(a), (ii) [reserved]
and (iii) the assignment and delivery to the Trustee of REMIC 2 (including
the
Residual Interest therein represented by the Class R-2 Interest) and the
acceptance by the Trustee thereof, pursuant to Section 2.08(c), the Trustee,
pursuant to the written request of the Depositor executed by an officer of
the
Depositor, has executed, authenticated and delivered to or upon the order of
the
Depositor, the Class R Certificates in authorized denominations evidencing
the
Class R-1 Interest and the Class R-2 Interest.
Section
2.09. Purposes
and Powers of the Trust.
The
purpose of the common law trust, as created hereunder, is to engage in the
following activities:
(i) to
acquire and hold the Mortgage Loans and the other assets of the Trust Fund
and
the proceeds therefrom;
(ii) to
issue
the Certificates sold to the Depositor in exchange for the Mortgage
Loans;
(iii) to
make
payments on the Certificates;
(iv) to
engage
in those activities that are necessary, suitable or convenient to accomplish
the
foregoing or are incidental thereto or connected therewith; and
(v) subject
to compliance with this Agreement, to engage in such other activities as may
be
required in connection with conservation of the Trust Fund and the making of
distributions to the Certificateholders.
The
Trust
is hereby authorized to engage in the foregoing activities. The Trustee and
the
Servicer shall not cause the Trust to engage in any activity other than in
connection with the foregoing or other than as required or authorized by the
terms of this Agreement while any Certificate is outstanding, and this Section
2.10 may not be amended, without the consent of the Certificateholders
evidencing 66 2/3% or more of the aggregate Voting Rights of the
Certificates.
ARTICLE
III
ADMINISTRATION
AND SERVICING
OF
THE
MORTGAGE LOANS
Section
3.01. Servicer
to Act as Servicer.
The
Servicer shall service and administer the Mortgage Loans on behalf of the Trust
and in the best interests of and for the benefit of the Certificateholders
and
the Certificate Insurer (as determined by the Servicer in its reasonable
judgment) in accordance with the terms of this Agreement and the Mortgage Loans
and, to the extent consistent with such terms, in the same manner in which
it
services and administers similar mortgage loans for its own portfolio, giving
due consideration to customary and usual standards of practice of mortgage
lenders and loan servicers administering similar mortgage loans but without
regard to:
(i) any
relationship that the Servicer, any Sub-Servicer or any Affiliate of the
Servicer or any Sub-Servicer may have with the related Mortgagor;
(ii) the
ownership or non-ownership of any Certificate by the Servicer or any Affiliate
of the Servicer;
(iii) the
Servicer’s obligation to make Advances or Servicing Advances; or
(iv) the
Servicer’s or any Sub-Servicer’s right to receive compensation for its services
hereunder or with respect to any particular transaction.
Subject
only to the above-described servicing standards and the terms of this Agreement
and of the Mortgage Loans, the Servicer shall have full power and authority,
acting alone or through Sub-Servicers as provided in Section 3.02, to do or
cause to be done any and all things in connection with such servicing and
administration which it may deem necessary or desirable. Without limiting the
generality of the foregoing, the Servicer in its own name or in the name of
a
Sub-Servicer is hereby authorized and empowered by the Trustee, when the
Servicer believes it appropriate in its best judgment in accordance with the
servicing standards set forth above, to execute and deliver, on behalf of the
Certificateholders, the Certificate Insurer and the Trustee, and upon notice
to
the Trustee and the Certificateholders, any and all 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 the Mortgaged
Properties and to institute foreclosure proceedings or obtain a deed-in-lieu
of
foreclosure so as to convert the ownership of such properties, and to hold
or
cause to be held title to such properties, on behalf of the Trustee and
Certificateholders. The Servicer shall service and administer the Mortgage
Loans
in accordance with applicable state and federal law and shall provide to the
Mortgagors any reports required to be provided to them thereby. Subject to
Section 3.17, the Trustee shall execute, at the written request of the Servicer,
and furnish to the Servicer and any Sub-Servicer any special or limited powers
of attorney and other documents necessary or appropriate to enable the Servicer
or any Sub-Servicer to carry out their servicing and administrative duties
hereunder; provided, such limited powers of attorney or other documents shall
be
prepared by the Servicer and submitted to the Trustee for execution. The Trustee
shall not be liable for the actions of the Servicer or any Sub-Servicers under
such powers of attorney.
Subject
to Section 3.09 hereof, in accordance with the servicing standards of the
preceding paragraphs, the Servicer shall advance or cause to be advanced funds
as necessary for the purpose of effecting the timely payment of taxes and
assessments on the Mortgaged Properties, which advances shall be Servicing
Advances reimbursable in the first instance from related collections from the
Mortgagors pursuant to Section 3.09, and further as provided in Section 3.11.
Any cost incurred by the Servicer or by Sub-Servicers in effecting the timely
payment of taxes and assessments on a Mortgaged Property shall not, for the
purpose of calculating distributions to Certificateholders, be added to the
unpaid Stated Principal Balance of the related Mortgage Loan, notwithstanding
that the terms of such Mortgage Loan so permit.
Notwithstanding
anything in this Agreement to the contrary, the Servicer may not make any future
advances with respect to a Mortgage Loan (except as provided in Section 4.03)
and the Servicer shall not (i) permit any modification with respect to any
Mortgage Loan that would change the Mortgage Rate, reduce or increase the Stated
Principal Balance (except for reductions resulting from actual payments of
principal) or change the final maturity date on such Mortgage Loan (unless,
as
provided in Section 3.07, the Mortgagor is in default with respect to the
Mortgage Loan or such default is, in the judgment of the Servicer, reasonably
foreseeable) or (ii) permit any modification, waiver or amendment of any term
of
any Mortgage Loan that would both (A) effect an exchange or reissuance of such
Mortgage Loan under Section 1001 of the Code (or Treasury regulations
promulgated thereunder) and (B) any REMIC created hereunder to fail to qualify
as a REMIC under the Code or the imposition of any tax on “prohibited
transactions” or “contributions after the startup date” under the REMIC
Provisions. The Servicer shall also not permit extensions beyond the Final
Distribution Date.
Section
3.02. Sub-Servicing
Agreements Between Servicer and Sub-Servicers; Special Servicing.
(a) The
Servicer may enter into Sub-Servicing Agreements with Sub-Servicers for the
servicing and administration of the Mortgage Loans; provided, however, that
such
agreements would not result in a withdrawal or a downgrading by any Rating
Agency of the rating on any Class of Certificates (without regard to the
Policy).
Each
Sub-Servicer shall be (i) authorized and licensed to transact business in the
state or states where the related Mortgaged Properties it is to service are
situated, if and to the extent required by applicable law to enable the
Sub-Servicer to perform its obligations hereunder and under the Sub-Servicing
Agreement and (ii) a Xxxxxxx Mac or Xxxxxx Mae approved mortgage servicer.
Each
Sub-Servicing Agreement must impose on the Sub-Servicer requirements conforming
to the provisions set forth in Section 3.08 and provide for servicing of the
Mortgage Loans consistent with the terms of this Agreement. The Servicer will
examine each Sub-Servicing Agreement and will be familiar with the terms
thereof. The terms of any Sub-Servicing Agreement will not be inconsistent
with
any of the provisions of this Agreement. The Servicer and the Sub-Servicers
may
enter into and make amendments to the Sub-Servicing Agreements or enter into
different forms of Sub-Servicing Agreements; provided, however, that any such
amendments or different forms shall be consistent with and not violate the
provisions of this Agreement, and that no such amendment or different form
shall
be made or entered into which could be reasonably expected to be materially
adverse to the interests of the Certificateholders or the Certificate Insurer
without the consent of the Holders of Certificates entitled to at least 66%
of
the Voting Rights (excluding any Certificates held by the Seller, the Servicer
or any Affiliate thereof) and the Certificate Insurer (unless the Policy has
been canceled upon the payment in full of the Insured Certificates or a
Certificate Insurer Default has occurred and is continuing); provided, further,
that the consent of the Holders of Certificates entitled to at least 66% of
the
Voting Rights (excluding any Certificates held by the Seller, the Servicer
or
any Affiliate thereof) or the Certificate Insurer shall not be required (i)
to
cure any ambiguity or defect in a Sub-Servicing Agreement, (ii) to correct,
modify or supplement any provisions of a Sub-Servicing Agreement, or (iii)
to
make any other provisions with respect to matters or questions arising under
a
Sub-Servicing Agreement, which, in each case, shall not be inconsistent with
the
provisions of this Agreement. Any variation without the consent of the Holders
of Certificates entitled to at least 66% of the Voting Rights (excluding any
Certificates held by the Seller, the Servicer or any Affiliate thereof) and
the
Certificate Insurer (unless the Policy has been canceled upon the payment in
full of the Insured Certificates or a Certificate Insurer Default has occurred
and is continuing) from the provisions set forth in Section 3.08 relating to
insurance or priority requirements of Sub-Servicing Accounts, or credits and
charges to the Sub-Servicing Accounts or the timing and amount of remittances
by
the Sub-Servicers to the Servicer, are conclusively deemed to be inconsistent
with this Agreement and therefore prohibited. The Servicer shall deliver to
the
Trustee copies of all Sub-Servicing Agreements, and any amendments or
modifications thereof, promptly upon the Servicer’s execution and delivery of
such instruments.
(b) As
part
of its servicing activities hereunder, the Servicer, for the benefit of the
Trustee, the Certificate Insurer and the Certificateholders, shall enforce
the
obligations of each Sub-Servicer under the related Sub-Servicing Agreement
and
of the Seller under the Mortgage Loan Purchase Agreement, including, without
limitation, any obligation to make advances in respect of delinquent payments as
required by a Sub-Servicing Agreement, or to purchase a Mortgage Loan on account
of missing or defective documentation or on account of a breach of a
representation, warranty or covenant, as described in Section 2.03(a). Such
enforcement, including, without limitation, the legal prosecution of claims,
termination of Sub-Servicing Agreements, and the pursuit of other appropriate
remedies, shall be in such form and carried out to such an extent and at such
time as the Servicer, in its good faith business judgment, would require were
it
the owner of the related Mortgage Loans. The Servicer shall pay the costs of
such enforcement at its own expense, and shall be reimbursed therefor only
(i)
from a general recovery resulting from such enforcement, to the extent, if
any,
that such recovery exceeds all amounts due in respect of the related Mortgage
Loans, or (ii) from a specific recovery of costs, expenses or attorneys’ fees
against the party against whom such enforcement is directed. Enforcement of
the
Mortgage Loan Purchase Agreement against the Seller shall be effected by the
Servicer to the extent it is not the Seller, and otherwise by the Trustee in
accordance with the foregoing provisions of this paragraph.
Section
3.03. Successor
Sub-Servicers.
The
Servicer shall be entitled to terminate any Sub-Servicing Agreement and the
rights and obligations of any Sub-Servicer pursuant to any Sub-Servicing
Agreement in accordance with the terms and conditions of such Sub-Servicing
Agreement. In the event of termination of any Sub-Servicer, all servicing
obligations of such Sub-Servicer shall be assumed simultaneously by the Servicer
without any act or deed on the part of such Sub-Servicer or the Servicer, and
the Servicer either shall service directly the related Mortgage Loans or shall
enter into a Sub-Servicing Agreement with a successor Sub-Servicer which
qualifies under Section 3.02.
Any
Sub-Servicing Agreement shall include the provision that such agreement may
be
immediately terminated by the Servicer or the Trustee (if the Trustee is acting
as Servicer) without fee, in accordance with the terms of this Agreement, in
the
event that the Servicer (or the Trustee, if such party is then acting as
Servicer) shall, for any reason, no longer be the Servicer (including
termination due to a Servicer Event of Termination).
Section
3.04. Liability
of the Servicer.
Notwithstanding
any Sub-Servicing Agreement or the provisions of this Agreement relating to
agreements or arrangements between the Servicer and a Sub-Servicer or reference
to actions taken through a Sub-Servicer or otherwise, the Servicer shall remain
obligated and primarily liable to the Trustee, the Certificate Insurer and
the
Certificateholders for the servicing and administering of the Mortgage Loans
in
accordance with the provisions of Section 3.01 without diminution of such
obligation or liability by virtue of such Sub-Servicing Agreements or
arrangements or by virtue of indemnification from the Sub-Servicer and to the
same extent and under the same terms and conditions as if the Servicer alone
were servicing and administering the Mortgage Loans. The Servicer shall be
entitled to enter into any agreement with a Sub-Servicer for indemnification
of
the Servicer by such Sub-Servicer and nothing contained in this Agreement shall
be deemed to limit or modify such indemnification.
Section
3.05. No
Contractual Relationship Between Sub-Servicers and the Trustee or
Certificateholders.
Any
Sub-Servicing Agreement that may be entered into and any transactions or
services relating to the Mortgage Loans involving a Sub-Servicer in its capacity
as such shall be deemed to be between the Sub-Servicer and the Servicer alone,
and neither the Trustee nor the Certificateholders shall be deemed parties
thereto, and neither the Trustee nor the Certificateholders shall have any
claims, rights, obligations, duties or liabilities with respect to the
Sub-Servicer except as set forth in Section 3.06. The Servicer shall be solely
liable for all fees owed by it to any Sub-Servicer, irrespective of whether
the
Servicer’s compensation pursuant to this Agreement is sufficient to pay such
fees.
Section
3.06. Assumption
or Termination of Sub-Servicing Agreements by Trustee.
In
the
event the Servicer shall for any reason no longer be the servicer (including
by
reason of the occurrence of a Servicer Event of Termination), the successor
Servicer or the Trustee if it becomes successor Servicer shall thereupon assume
all of the rights and obligations of the Servicer under each Sub-Servicing
Agreement that the Servicer may have entered into, unless the Trustee elects
to
terminate any Sub-Servicing Agreement in accordance with its terms as provided
in Section 3.03. Upon such assumption, the Trustee (or the successor Servicer
appointed pursuant to Section 7.02) shall be deemed, subject to Section 3.03,
to
have assumed all of the departing Servicer’s interest therein and to have
replaced the departing Servicer as a party to each Sub-Servicing Agreement
to
the same extent as if each Sub-Servicing Agreement had been assigned to the
assuming party, except that (i) the departing Servicer shall not thereby be
relieved of any liability or obligations under any Sub-Servicing Agreement
that
arose before it ceased to be the Servicer and (ii) neither the Trustee nor
any
successor Servicer shall be deemed to have assumed any liability or obligation
of the Servicer that arose before it ceased to be the Servicer.
The
Servicer at its expense shall, upon request of the Trustee, deliver to the
assuming party all documents and records relating to each Sub-Servicing
Agreement and the Mortgage Loans then being serviced and an accounting of
amounts collected and held by or on behalf of it, and otherwise use its best
efforts to effect the orderly and efficient transfer of the Sub-Servicing
Agreements to the assuming party. All Servicing Transfer Costs shall be paid
by
the predecessor Servicer (or, if the predecessor Servicer is the Trustee, the
Servicer that immediately preceded the Trustee) upon presentation of reasonable
documentation of such costs, and if such predecessor Servicer defaults in its
obligation to pay such costs, such costs shall be paid by the successor Servicer
or the Trustee (in which case, the successor Servicer or the Trustee, as
applicable, shall be entitled to reimbursement therefor from the assets of
the
Trust Fund).
Section
3.07. Collection
of Certain Mortgage Loan Payments.
The
Servicer shall make reasonable efforts to collect all payments called for under
the terms and provisions of the Mortgage Loans, and shall, to the extent such
procedures shall be consistent with this Agreement and the terms and provisions
of any applicable insurance policies, follow such collection procedures as
it
would follow with respect to mortgage loans comparable to the Mortgage Loans
and
held for its own account. Consistent with the foregoing, the Servicer may in
its
discretion (i) waive any late payment charge or, if applicable, any penalty
interest, or (ii) subject to the last sentence of Section 3.02, extend the
due
dates for the Monthly Payments due on a Mortgage Note for a period of not
greater than 180 days; provided, however, that any extension pursuant to clause
(ii) above shall not affect the amortization schedule of any Mortgage Loan
for
purposes of any computation hereunder, except as provided below. In the event
of
any such arrangement pursuant to clause (ii) above, the Servicer shall make
timely advances on such Mortgage Loan during such extension pursuant to Section
4.03 and in accordance with the amortization schedule of such Mortgage Loan
without modification thereof by reason of such arrangement. Notwithstanding
the
foregoing, in the event that any Mortgage Loan is in default or, in the judgment
of the Servicer, such default is reasonably foreseeable, the Servicer,
consistent with the standards set forth in Section 3.01, may also waive, modify
or vary any term of such Mortgage Loan (including modifications that would
change the Mortgage Rate, forgive the payment of principal or interest or extend
the final maturity date of such Mortgage Loan), accept payment from the related
Mortgagor of an amount less than the Stated Principal Balance in final
satisfaction of such Mortgage Loan, or consent to the postponement of strict
compliance with any such term or otherwise grant indulgence to any Mortgagor
(any and all such waivers, modifications, variances, forgiveness of principal
or
interest, postponements, or indulgences collectively referred to herein as
“forbearance”); provided, however, that (i) the Servicer shall determine that
such forbearance 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,
(ii) the Servicer shall not initiate any new lending to such Mortgagor through
the Trust Fund and (iii) in no event shall the Servicer grant any such
forbearance (other than as permitted by the second sentence of this Section)
with respect to any one Mortgage Loan more than once in any 12 month period
or
more than three times over the life of such Mortgage Loan. The Servicer’s
analysis supporting any forbearance and the conclusion that any forbearance
meets the standards of Section 3.01 shall be reflected in writing in the
Mortgage File.
Section
3.08. Sub-Servicing
Accounts.
In
those
cases where a Sub-Servicer is servicing a Mortgage Loan pursuant to a
Sub-Servicing Agreement, the Sub-Servicer will be required to establish and
maintain one or more accounts (collectively, the “Sub-Servicing Account”). The
Sub-Servicing Account shall be an Eligible Account and shall comply with all
requirements of this Agreement relating to the Certificate Account. The
Sub-Servicer shall deposit in the clearing account in which it customarily
deposits payments and collections on mortgage loans in connection with its
mortgage loan servicing activities on a daily basis, and in no event more than
one Business Day after the Sub-Servicer’s receipt thereof, all proceeds of
Mortgage Loans received by the Sub-Servicer less its servicing compensation
to
the extent permitted by the Sub-Servicing Agreement, and shall thereafter
deposit such amounts in the Sub-Servicing Account, in no event more than two
Business Days after the receipt of such amounts. The Sub-Servicer shall
thereafter deposit such proceeds in the Certificate Account or remit such
proceeds to the Servicer for deposit in the Certificate Account not later than
two Business Days after the deposit of such amounts in the Sub-Servicing
Account. For purposes of this Agreement, the Servicer shall be deemed to have
received payments on the Mortgage Loans when the Sub-Servicer receives such
payments.
Section
3.09. Collection
of Taxes, Assessments and Similar Items; Servicing Accounts.
The
Servicer shall establish and maintain, or cause to be established and
maintained, one or more accounts (the “Servicing Accounts”), into which all
Escrow Payments shall be deposited and retained. Servicing Accounts shall be
Eligible Accounts. The Servicer shall deposit in the clearing account in which
it customarily deposits payments and collections on mortgage loans in connection
with its mortgage loan servicing activities on a daily basis, and in no event
more than one Business Day after the Servicer’s receipt thereof, all Escrow
Payments collected on account of the Mortgage Loans and shall thereafter deposit
such Escrow Payments in the Servicing Accounts, in no event more than two
Business Days after the receipt of such Escrow Payments, all Escrow Payments
collected on account of the Mortgage Loans for the purpose of effecting the
timely payment of any such items as required under the terms of this Agreement.
Withdrawals of amounts from a Servicing Account may be made only to: (i) effect
payment of taxes, assessments and comparable items in a manner and at a time
that assures that the lien priority of the Mortgage is not jeopardized (or,
with
respect to the payment of taxes, in a manner and at a time that avoids the
loss
of the Mortgaged Property due to a tax sale or the foreclosure as a result
of a
tax lien); (ii) reimburse the Servicer (or a Sub-Servicer to the extent provided
in the related Sub-Servicing Agreement) out of related collections for any
Servicing Advances made pursuant to Section 3.01 (with respect to taxes and
assessments); (iii) refund to Mortgagors any sums as may be determined to be
overages; (iv) pay interest, if required and as described below, to Mortgagors
on balances in the Servicing Account; (v) to pay the Servicer excess interest
on
funds in the Servicing Accounts to the extent permitted as provided below;
or
(vi) clear and terminate the Servicing Account at the termination of the
Servicer’s obligations and responsibilities in respect of the Mortgage Loans
under this Agreement in accordance with Article X. In the event the Servicer
shall deposit in a Servicing Account any amount not required to be deposited
therein, it may at any time withdraw such amount from such Servicing Account,
any provision herein to the contrary notwithstanding. The Servicer will be
responsible for the administration of the Servicing Accounts and will be
obligated to make Servicing Advances to such accounts when and as necessary
to
avoid the lapse of insurance coverage on the Mortgaged Property, or which the
Servicer knows, or in the exercise of the required standard of care of the
Servicer hereunder should know, is necessary to avoid the loss of the Mortgaged
Property due to a tax sale or the foreclosure as a result of a tax lien. If
any
such payment has not been made and the Servicer receives notice of a tax lien
with respect to the Mortgage being imposed, the Servicer will, within 10
Business Days of such notice, advance or cause to be advanced funds necessary
to
discharge such lien on the Mortgaged Property. As part of its servicing duties,
the Servicer or Sub-Servicers shall pay to the Mortgagors interest on funds
in
the Servicing Accounts, to the extent required by law and, to the extent that
interest earned on funds in the Servicing Accounts is insufficient, to pay
such
interest from its or their own funds, without any reimbursement therefor. The
Servicer may pay to itself any excess interest on funds in the Servicing
Accounts, to the extent such action is in conformity with the Servicing
Standard, is permitted by law and such amounts are not required to be paid
to
Mortgagors or used for any of the other purposes set forth above.
Section
3.10. Certificate
Account; Distribution Account.
(a) On
behalf
of the Trust Fund, the Servicer shall establish and maintain, or cause to be
established and maintained, one or more accounts (such account or accounts,
the
“Certificate Account”), held in trust for the benefit of the Trustee, the
Certificate Insurer and the Certificateholders. The Certificate Account shall
be
an Eligible Account. On behalf of the Trust Fund, the Servicer shall deposit
or
cause to be deposited in the clearing account in which it customarily deposits
payments and collections on mortgage loans in connection with its mortgage
loan
servicing activities on a daily basis, and in no event more than one Business
Day after the Servicer’s receipt thereof, and shall thereafter deposit in the
Certificate Account, in no event more than two Business Days after the
Servicer’s receipt thereof, as and when received or as otherwise required
hereunder, the following payments and collections received or made by it
subsequent to the Cut-off Date (other than in respect of principal or interest
on the Mortgage Loans due on or before the Cut-off Date and other than Prepaid
Interest with respect to such Mortgage Loans) or payments (other than Principal
Prepayments) received by it on or prior to the Cut-off Date, but allocable
to a
Remittance Period subsequent thereto:
(i) all
payments on account of principal, including Principal Prepayments;
(ii) all
payments on account of interest (net of the related Servicing Fee) on each
Mortgage Loan;
(iii) all
Insurance Proceeds and Liquidation Proceeds (other than proceeds collected
in
respect of any particular REO Property and amounts paid in connection with
a
purchase of Mortgage Loans and REO Properties pursuant to Section 10.01) and
Subsequent Recoveries;
(iv) any
amounts required to be deposited pursuant to Section 3.12 in connection with
any
losses realized on Permitted Investments with respect to funds held in the
Certificate Account;
(v) any
amounts required to be deposited by the Servicer pursuant to the second
paragraph of Section 3.14(a) in respect of any blanket policy
deductibles;
(vi) all
proceeds of any Mortgage Loan repurchased or purchased in accordance with
Section 2.03, Section 3.16(c) or Section 10.01;
(vii) all
amounts required to be deposited in connection with Substitution Adjustments
pursuant to Section 2.03; and
(viii) all
Prepayment Charges collected.
The
foregoing requirements for deposit in the Certificate Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of Servicing Fees, late payment
charges, assumption fees, modification fees, insufficient funds charges and
ancillary income need not be deposited by the Servicer in the Certificate
Account and may be retained by the Servicer as additional compensation. In
the
event the Servicer shall deposit in the Certificate Account any amount not
required to be deposited therein, it may at any time withdraw such amount from
the Certificate Account, any provision herein to the contrary
notwithstanding.
(b) On
behalf
of the Trust Fund, the Trustee shall establish and maintain one or more accounts
(such account or accounts, the “Distribution Account”), held in trust for the
benefit of the Trustee, the Certificate Insurer and the Certificateholders.
The
Distribution Account will be an Eligible Account. On behalf of the Trust Fund,
the Servicer shall deliver to the Trustee in immediately available funds for
deposit in the Distribution Account on or before 3:00 p.m. New York time (i)
on
the Servicer Remittance Date, that portion of the Available Funds (calculated
without regard to the references in the definition thereof to amounts that
may
be withdrawn from the Distribution Account) for the related Distribution Date
then on deposit in the Certificate Account and any other amounts deposited
hereunder that are required to be deposited in the Distribution Account funds
reimbursable pursuant to Section 3.27, and (ii) on each Business Day as of
the
commencement of which the balance on deposit in the Certificate Account exceeds
$75,000 following any withdrawals pursuant to the next succeeding sentence,
the
amount of such excess, but only if the Certificate Account constitutes an
Eligible Account solely pursuant to clause (ii) of the definition of “Eligible
Account.” If the balance on deposit in the Certificate Account exceeds $75,000
as of the commencement of business on any Business Day and the Certificate
Account constitutes an Eligible Account solely pursuant to clause (ii) of the
definition of “Eligible Account,” the Servicer shall, on or before 3:00 p.m. New
York time on such Business Day, withdraw from the Certificate Account any and
all amounts payable or reimbursable to the Servicer, the Trustee, the Seller
or
any Sub-Servicer pursuant to Section 3.11 and shall pay such amounts to the
Persons entitled thereto.
(c) Funds
in
the Certificate Account and the Distribution Account shall be invested in
Permitted Investments in accordance with the provisions set forth in Section
3.12. The Servicer shall give notice to the Trustee and the Certificate Insurer
of the location of the Certificate Account maintained by it when established
and
prior to any change thereof. The Trustee shall give notice to the Servicer,
the
Certificate Insurer and the Depositor of the location of the Distribution
Account when established and prior to any change thereof.
(d) Funds
held in the Certificate Account at any time may be delivered by the Servicer
to
the Trustee for deposit in an account (which may be the Distribution Account
and
must satisfy the standards for the Distribution Account as set forth in the
definition thereof) and for all purposes of this Agreement shall be deemed
to be
a part of the Certificate Account; provided, however, that the Trustee shall
have the sole authority to withdraw any funds held pursuant to this subsection
(d). In the event the Servicer shall deliver to the Trustee for deposit in
the
Distribution Account any amount not required to be deposited therein, it may
at
any time request in writing that the Trustee withdraw such amount from the
Distribution Account and remit to it any such amount, any provision herein
to
the contrary notwithstanding. In addition, the Servicer shall deliver to the
Trustee from time to time for deposit, and the Trustee shall so deposit, in
the
Distribution Account:
(i) any
Advances, as required pursuant to Section 4.03;
(ii) any
amounts required to be deposited pursuant to Section 3.25(d) or (f) in
connection with any REO Property;
(iii) any
amounts to be paid in connection with a purchase of Mortgage Loans and REO
Properties pursuant to Section 10.01;
(iv) any
Compensating Interest to be deposited pursuant to Section 3.24 in connection
with any Prepayment Interest Shortfall;
(v) any
amounts required to be paid or reimbursed to the Trustee pursuant to the
Agreement (to the extent required to be paid by the Servicer), including, but
not limited to Section 3.06 and Section 7.02 (to the extent required to be
paid
by the Servicer); and
(vi) any
amounts required to be deposited pursuant to Section 3.12 in connection with
any
losses realized on Permitted Investments with respect to funds held in the
Distribution Account (other than any such losses incurred during the Trustee
Float Period).
Section
3.11. Withdrawals
from the Certificate Account and Distribution Account.
(a) The
Servicer shall, from time to time, make withdrawals from the Certificate Account
for any of the following purposes or as described in Section 4.03:
(i) to
remit
to the Trustee for deposit in the Distribution Account the amounts required
to
be so remitted pursuant to Section 3.10(b) or permitted to be so remitted
pursuant to the first sentence of Section 3.10(d);
(ii) subject
to Section 3.16(d), to reimburse the Servicer for (a) any unreimbursed Advances
to the extent of amounts received which represent Late Collections (net of
the
related Servicing Fees) of Monthly Payments, Liquidation Proceeds and Insurance
Proceeds on Mortgage Loans with respect to which such Advances were made in
accordance with the provisions of Section 4.03 or (b) any unreimbursed Advances
with respect to the final liquidation of a Mortgage Loan that are Nonrecoverable
Advances, but only to the extent that Late Collections, Liquidation Proceeds,
Subsequent Recoveries and Insurance Proceeds received with respect to such
Mortgage Loan are insufficient to reimburse the Servicer for such unreimbursed
Advances;
(iii) subject
to Section 3.16(d), to pay the Servicer or any Sub-Servicer (a) any unpaid
Servicing Fees, (b) any unreimbursed Servicing Advances with respect to each
Mortgage Loan, but only to the extent of any Late Collections, Liquidation
Proceeds and Insurance Proceeds received with respect to such Mortgage Loan,
and
(c) any Servicing Advances with respect to the final liquidation of a Mortgage
Loan that are Nonrecoverable Advances, but only to the extent that Late
Collections, Liquidation Proceeds and Insurance Proceeds received with respect
to such Mortgage Loan are insufficient to reimburse the Servicer or any
Sub-Servicer for Servicing Advances;
(iv) to
pay to
the Servicer as servicing compensation (in addition to the Servicing Fee) on
the
Servicer Remittance Date any interest or investment income earned on funds
deposited in the Certificate Account;
(v) to
pay to
the Seller or the Servicer, as the case may be, with respect to each Mortgage
Loan that has previously been purchased or replaced pursuant to Section 2.03
or
Section 3.16(c) all amounts received thereon subsequent to the date of purchase
or substitution, as the case may be;
(vi) to
reimburse the Servicer for any Advance or Servicing Advance previously made
which the Servicer has determined to be a Nonrecoverable Advance in accordance
with the provisions of Section 4.03;
(vii) to
pay,
or to reimburse the Servicer for Servicing Advances in respect of, expenses
incurred in connection with any Mortgage Loan pursuant to Section
3.16(b);
(viii) to
reimburse the Servicer or the Depositor for expenses incurred by or reimbursable
to the Servicer or the Depositor pursuant to Section 6.03;
(ix) to
reimburse the Servicer or the Trustee, as the case may be, for expenses
reasonably incurred in connection with any breach or defect giving rise to
the
purchase obligation under Section 2.03 of this Agreement, including any expenses
arising out of the enforcement of the purchase obligation (other than with
respect to a breach caused by the Servicer);
(x) to
pay
itself any Prepayment Interest Excess;
(xi) to
pay
itself to the extent permitted under Section 3.06;
(xii) to
withdraw any funds deposited in the Certificate Account in error;
and
(xiii) to
clear
and terminate the Certificate Account pursuant to Section 10.01.
The
foregoing requirements for withdrawal from the Certificate Account shall be
exclusive. In the event the Servicer shall deposit in the Certificate Account
any amount not required to be deposited therein, it may at any time withdraw
such amount from the Certificate Account, any provision herein to the contrary
notwithstanding.
The
Servicer shall keep and maintain separate accounting, on a Mortgage
Loan-by-Mortgage Loan basis, for the purpose of justifying any withdrawal from
the Certificate Account, to the extent held by or on behalf of it, pursuant
to
subclauses (ii), (iii), (iv), (v), (vi) and (vii) above. The Servicer shall
provide written notification to the Trustee, on or prior to the next succeeding
Servicer Remittance Date, upon making any withdrawals from the Certificate
Account pursuant to subclause (vi) above; provided that an Officer’s Certificate
in the form described under Section 4.03(d) shall suffice for such written
notification to the Trustee in respect hereof.
(b) The
Trustee shall, from time to time, make withdrawals from the Distribution
Account, for any of the following purposes, without priority:
(i) to
make
distributions in accordance with Section 4.01;
(ii) to
pay
itself the Trustee Fee pursuant to Section 4.01 and Section 8.05;
(iii) to
pay
any amounts in respect of taxes pursuant to Section 9.01(g);
(iv) to
clear
and terminate the Distribution Account pursuant to Section 10.01;
(v) to
pay
any amounts required to be paid to the Trustee pursuant to this Agreement,
including but not limited to funds required to be paid pursuant to Section
2.01,
Section 3.06, Section 7.02, Section 8.05 and Section 9.01(c);
(vi) to
pay to
itself as additional compensation any interest or investment income earned
on
funds on deposit in the Distribution Account during the Trustee Float Period
to
the extent provided in Section 3.12(b);
(vii) to
pay to
the Servicer as servicing compensation any interest or investment income earned
on funds on deposit in the Distribution Account (other than during the Trustee
Float Period) to the extent provided in Section 3.12(b); and
(viii) to
withdraw any funds deposited in the Distribution Account in error;
Section
3.12. Investment
of Funds in the Certificate Account and the Distribution Account.
(a) The
Servicer shall direct any depository institution maintaining the Certificate
Account (except with respect to the Trustee Float Period) and the Distribution
Account, and the Trustee may direct any depository institution maintaining
(during the Trustee Float Period) the Distribution Account (each such account,
for purposes of this Section 3.12, an “Investment Account”) to invest the funds
in such Investment Account in one or more Permitted Investments bearing interest
or sold at a discount, and maturing, unless payable on demand, (i) no later
than
the Business Day immediately preceding the date on which such funds are required
to be withdrawn from such account pursuant to this Agreement, if a Person other
than the Trustee is the obligor thereon or if such investment is managed or
advised by a Person other than the Trustee or an Affiliate of the Trustee,
and
(ii) no later than the date on which such funds are required to be withdrawn
from such account pursuant to this Agreement, if the Trustee is the obligor
thereon. Funds in the Distribution Account may also be held uninvested. All
such
Permitted Investments shall be held to maturity, unless payable on demand.
Any
investment of funds in an Investment Account shall be made in the name of the
Trustee (in its capacity as such), or in the name of a nominee of the Trustee.
The Trustee shall be entitled to sole possession (except with respect to
investment direction of funds held in the Certificate Account and, other than
with respect to the Trustee Float Period, the Distribution Account and any
income realized thereon) over each such investment, and any certificate or
other
instrument evidencing any such investment shall be delivered directly to the
Trustee or its agent, together with any document of transfer necessary to
transfer title to such investment to the Trustee or its nominee. In the event
amounts on deposit in an Investment Account are at any time invested in a
Permitted Investment payable on demand, the Trustee shall:
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(x)
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consistent
with any notice required to be given thereunder, demand that payment
thereon be made on the last day such Permitted Investment may otherwise
mature hereunder in an amount equal to the lesser of (1) all amounts
then
payable thereunder and (2) the amount required to be withdrawn on
such
date; and
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(y)
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demand
payment of all amounts due thereunder promptly upon determination
by a
Responsible Officer of the Trustee that such Permitted Investment
would
not constitute a Permitted Investment in respect of funds thereafter
on
deposit in the Investment Account, it being understood and agreed
that the
Trustee shall have no duty to monitor investments in the Investment
Accounts.
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(b) All
income realized from the investment of funds on deposit in the Certificate
Account, the Distribution Account (except with respect to the Trustee Float
Period), and any REO Account held by or on behalf of the Servicer shall be
for
the benefit of the Servicer and shall be subject to its withdrawal in accordance
with Section 3.11 or Section 3.25, as applicable. All income realized from
the
investment of funds on deposit in the Distribution Account during the Trustee
Float Period held by or on behalf of the Trustee shall be for the benefit of
the
Trustee and shall be subject to its withdrawal in accordance with Section 3.12.
The Servicer shall deposit in the Certificate Account, the Distribution Account
(except with respect to the Trustee Float Period) or any REO Account, as
applicable, the amount of any loss of principal incurred in respect of any
such
Permitted Investment made with funds in such account immediately upon
realization of such loss. The Trustee shall deposit in the Distribution Account
the amount of any loss of principal incurred in respect of any such Permitted
Investment made with funds in such account during the Trustee Float Period
immediately upon realization of such loss. 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.
Section
3.13. [Reserved].
Section
3.14. Maintenance
of Errors and Omissions and Fidelity Coverage.
The
Servicer shall keep in force during the term of this Agreement a policy or
policies of insurance covering errors and omissions for failure in the
performance of the Servicer’s obligations under this Agreement, which policy or
policies shall be in such form and amount that would meet the requirements
of
Xxxxxx Xxx or Xxxxxxx Mac if it were the purchaser of the Mortgage Loans, unless
the Servicer has obtained a waiver of such requirements from the Rating
Agencies. The Servicer shall also maintain a fidelity bond in the form and
amount that would meet the requirements of Xxxxxx Mae or Xxxxxxx Mac, unless
the
Servicer has obtained a waiver of such requirements from the Rating Agencies.
The Servicer shall be deemed to have complied with this provision if an
Affiliate of the Servicer has such errors and omissions and fidelity bond
coverage and, by the terms of such insurance policy or fidelity bond, the
coverage afforded thereunder extends to the Servicer. Any such errors and
omissions policy and fidelity bond shall by its terms not be cancelable without
thirty days’ prior written notice to the Trustee. The Servicer shall also cause
each Sub-Servicer to maintain a policy of insurance covering errors and
omissions and a fidelity bond which would meet such requirements.
Section
3.15. Enforcement
of Due-On-Sale Clauses; Assumption Agreements.
The
Servicer will, to the extent it has knowledge of any conveyance or prospective
conveyance of any Mortgaged Property by any Mortgagor (whether by absolute
conveyance or by contract of sale, and whether or not the Mortgagor remains
or
is to remain liable under the Mortgage Note and/or the Mortgage), exercise
its
rights to accelerate the maturity of such Mortgage Loan under the “due-on-sale”
clause, if any, applicable thereto; provided, however, that the Servicer shall
not be required to take such action 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 the Mortgage related thereto
and
the consent of the mortgagee under the Mortgage Note or the Mortgage is not
otherwise so required under the Mortgage Note or the Mortgage as a condition
to
the transfer. The Servicer shall not exercise any such rights if prohibited
by
law from doing so. If the Servicer reasonably believes it is unable under
applicable law to enforce such “due-on-sale” clause, or if any of the other
conditions set forth in the proviso to the preceding sentence apply, the
Servicer will enter into an assumption and modification agreement from or with
the person to whom such property has been conveyed or is proposed to be
conveyed, pursuant to which such person becomes liable under the Mortgage Note
and, to the extent permitted by applicable state law, the Mortgagor remains
liable thereon. The Servicer is also authorized to enter into a substitution
of
liability agreement with such person, pursuant to which the original Mortgagor
is released from liability and such person is substituted as the Mortgagor
and
becomes liable under the Mortgage Note; provided, that no such substitution
shall be effective unless such person satisfies the underwriting criteria of
the
Servicer and has a credit risk rating at least equal to that of the original
Mortgagor. In connection with any assumption or substitution, the Servicer
shall
apply such underwriting standards and follow such practices and procedures
as
shall be normal and usual in its general mortgage servicing activities and
as it
applies to other mortgage loans owned solely by it. Any fee collected by the
Servicer in respect of an assumption, modification or substitution of liability
agreement shall be retained by the Servicer as additional servicing
compensation. In connection with any such assumption, no material term of the
Mortgage Note (including but not limited to the related Mortgage Rate and the
amount of the Monthly Payment) may be amended or modified, except as otherwise
required pursuant to the terms thereof. The Servicer shall notify the Trustee
that any such substitution, modification or assumption agreement has been
completed by forwarding to the Trustee the executed original of such
substitution, modification or assumption agreement, which document shall be
added to the related Mortgage File and shall, for all purposes, be considered
a
part of such Mortgage File to the same extent as all other documents and
instruments constituting a part thereof.
Notwithstanding
the foregoing paragraph or any other provision of this Agreement, the Servicer
shall not be deemed to be in default, breach or any other violation of its
obligations hereunder by reason of any assumption of a Mortgage Loan by
operation of law or by the terms of the Mortgage Note or any assumption which
the Servicer may be restricted by law from preventing, for any reason
whatsoever. For purposes of this Section 3.15, the term “assumption” is deemed
to also include a sale (of the Mortgaged Property) subject to the Mortgage
that
is not accompanied by an assumption or substitution of liability
agreement.
Section
3.16. Realization
Upon Defaulted Mortgage Loans.
(a) The
Servicer shall use reasonable efforts, in accordance with the Servicing
Standard, to foreclose upon or otherwise comparably convert the ownership of
properties 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 pursuant to Section 3.07. The Servicer shall be
responsible for all costs and expenses incurred by it in any such proceedings;
provided, however, that such costs and expenses will be recoverable as Servicing
Advances by the Servicer as contemplated in Section 3.11 and Section 3.25.
The
foregoing is subject to the provision that, in any case in which a Mortgaged
Property shall have suffered damage from an Uninsured Cause, the Servicer shall
not be required to expend its own funds toward the restoration of such property
unless it shall determine in its discretion that such restoration will increase
the proceeds of liquidation of the related Mortgage Loan after reimbursement
to
itself for such expenses.
(b) Notwithstanding
the foregoing provisions of this Section 3.16 or any other provision of this
Agreement, with respect to any Mortgage Loan as to which the Servicer has
received actual notice of, or has actual knowledge of, the presence of any
toxic
or hazardous substance on the related Mortgaged Property, the Servicer shall
not, on behalf of the Trustee, either (i) obtain title to such Mortgaged
Property as a result of or in lieu of foreclosure or otherwise, or (ii)
otherwise acquire possession of, or take any other action with respect to,
such
Mortgaged Property, if, as a result of any such action, the Trustee, the Trust
Fund or the Certificateholders would be considered to hold title to, to be
a
“mortgagee-in-possession” of, or to be an “owner” or “operator” of such
Mortgaged Property within the meaning of the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended from time to time,
or any comparable law, unless the Servicer has also previously determined,
based
on its reasonable judgment and a report prepared by a Person who regularly
conducts environmental audits using customary industry standards,
that:
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(1)
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such
Mortgaged Property is in compliance with applicable environmental
laws or,
if not, that it would be in the best economic interest of the Trust
Fund
to take such actions as are necessary to bring the Mortgaged Property
into
compliance therewith; and
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(2)
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there
are no circumstances present at such Mortgaged Property relating
to the
use, management or disposal of any hazardous substances, hazardous
materials, hazardous wastes, or petroleum-based materials for which
investigation, testing, monitoring, containment, clean-up or remediation
could be required under any federal, state or local law or regulation,
or
that if any such materials are present for which such action could
be
required, that it would be in the best economic interest of the Trust
Fund
to take such actions with respect to the affected Mortgaged
Property.
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The
cost
of the environmental audit report contemplated by this Section 3.16 shall be
advanced by the Servicer, subject to the Servicer’s right to be reimbursed
therefor from the Certificate Account as provided in Section 3.11(a)(vii),
such
right of reimbursement being prior to the rights of Certificateholders to
receive any amount in the Certificate Account received in respect of the
affected Mortgage Loan or other Mortgage Loans.
If
the
Servicer determines, as described above, that it is in the best economic
interest of the Trust Fund to take such actions as are necessary to bring any
such Mortgaged Property into compliance with applicable environmental laws,
or
to take such action with respect to the containment, clean-up or remediation
of
hazardous substances, hazardous materials, hazardous wastes or petroleum-based
materials affecting any such Mortgaged Property, then the Servicer shall take
such action as it deems to be in the best economic interest of the Trust Fund;
provided, that any amounts disbursed by the Servicer pursuant to this Section
3.16(b) shall constitute Servicing Advances, subject to Section 4.03(d). The
cost of any such compliance, containment, cleanup or remediation shall be
advanced by the Servicer, subject to the Servicer’s right to be reimbursed
therefor from the Certificate Account as provided in Section 3.11(a)(iii) and
(a)(vii), such right of reimbursement being prior to the rights of
Certificateholders to receive any amount in the Certificate Account received
in
respect of the affected Mortgage Loan or other Mortgage Loans.
(c) The
Servicer may agree to a modification of any Mortgage Loan (a “Modified Mortgage
Loan”) at the request of the related Mortgagor if (i) the modification is in
lieu of a refinancing and the Mortgage Rate on the Modified Mortgage Loan,
as
modified, is approximately a prevailing market rate for newly-originated
Mortgage Loans having similar terms and (ii) the Servicer purchases the Modified
Mortgage Loan from the Trust Fund as described below. Effective immediately
after the deposit of the Purchase Price by the Servicer, all interest of the
Trustee in the Modified 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 the deposit
of
the Purchase Price 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 the Modified Mortgage Loan.
The
Servicer shall deposit the Purchase Price for any Modified Mortgage Loan in
the
Certificate Account pursuant to Section 3.10(a)(vii) within one Business Day
after the purchase of the Modified Mortgage Loan. Upon receipt by the Trustee
of
written notification of any such deposit signed by a Servicing Officer, the
Trustee shall release to the 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 Modified
Mortgage Loan previously transferred and assigned pursuant hereto. The Servicer
covenants and agrees to indemnify the Trustee and 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
3.16(c), any holding of a Modified Mortgage Loan by the Trust Fund or any
purchase of a Modified Mortgage Loan by the Servicer (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, but not any related indemnification, 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. In
no
event shall the Servicer have the discretion to sell a delinquent or defaulted
Mortgage Loan.
(d) Proceeds
received in connection with any Final Recovery Determination, as well as any
recovery resulting from a partial collection of Insurance Proceeds, Subsequent
Recoveries or Liquidation Proceeds, in respect of any Mortgage Loan, will be
applied in the following order of priority: first, to unpaid Servicing Fees;
second, to the Servicer or any Sub-Servicer for any related unreimbursed
Servicing Advances pursuant to Section 3.11(a)(iii) and Advances pursuant to
Section 3.11(a)(ii); third, to accrued and unpaid interest on the Mortgage
Loan,
to the date of the Final Recovery Determination, or to the Due Date prior to
the
Distribution Date on which such amounts are to be distributed if not in
connection with a Final Recovery Determination; and fourth, as a recovery of
principal of the Mortgage Loan. The portion of the recovery so allocated to
unpaid Servicing Fees shall be reimbursed to the Servicer or any Sub-Servicer
pursuant to Section 3.11(a)(iii).
Section
3.17. Trustee
to Cooperate; Release of Mortgage Files.
(a) Upon
the
payment in full of any Mortgage Loan, or the receipt by the Servicer of a
notification that payment in full shall be escrowed in a manner customary for
such purposes, the Servicer shall deliver to the Trustee two executed copies
of
a Request for Release in the form of Exhibit E (which certification shall
include a statement to the effect that all amounts received or to be received
in
connection with such payment which are required to be deposited in the
Certificate Account pursuant to Section 3.10 have been or will be so deposited)
signed by a Servicing Officer (or in a mutually agreeable electronic format
that
will, in lieu of a signature on its face, originate from a Servicing Officer)
and shall request delivery to it of the Mortgage File. Upon receipt of such
certification and request, the Trustee shall, within five Business Days, release
and send by overnight mail, at the expense of the Servicer, the related Mortgage
File to the Servicer. No expenses incurred in connection with any instrument
of
satisfaction or deed of reconveyance shall be chargeable to the Certificate
Account or the Distribution Account.
(b) From
time
to time and as appropriate for the servicing or foreclosure of any Mortgage
Loan, including, for this purpose, collection under any insurance policy
relating to the Mortgage Loans, the Trustee shall, upon any request made by
or
on behalf of the Servicer and delivery to the Trustee of two copies of a Request
for Release in the form of Exhibit E signed by a Servicing Officer (or in a
mutually agreeable electronic format that will, in lieu of a signature on its
face, originate from a Servicing Officer), release the related Mortgage File
to
the Servicer, and the Trustee shall, at the direction of the Servicer, execute
such documents as shall be necessary to the prosecution of any such proceedings.
Such Request for Release shall obligate the Servicer to return each and every
document previously requested from the Mortgage File to the Trustee when the
need therefor by the Servicer no longer exists, unless the Mortgage Loan has
been liquidated and the Liquidation Proceeds relating to the Mortgage Loan
have
been deposited in the Certificate Account or the Mortgage File or such document
has been delivered to an attorney, or to a public trustee or other public
official as required by law, for purposes of initiating or pursuing legal action
or other proceedings for the foreclosure of the Mortgaged Property either
judicially or non-judicially, and the Servicer has delivered, or caused to
be
delivered, to the Trustee an additional Request for Release certifying as to
such liquidation or action or proceedings. Upon the request of the Trustee,
the
Servicer shall provide notice to the Trustee of the name and address of the
Person to which such Mortgage File or such document was delivered and the
purpose or purposes of such delivery. Upon receipt of two copies of a Request
for Release from a Servicing Officer stating that such Mortgage Loan was
liquidated and that all amounts received or to be received in connection with
such liquidation that are required to be deposited into the Certificate Account
have been so deposited, or that such Mortgage Loan has become an REO Property,
one copy of such Request for Release with respect to such Mortgage Loan shall
be
released by the Trustee to the Servicer or its designee.
(c) Upon
written certification of a Servicing Officer, the Trustee shall execute and
deliver to the Servicer or the Sub-Servicer, as the case may be, copies of,
any
court pleadings, requests for trustee’s sale or other documents necessary to the
foreclosure or trustee’s sale in respect of a Mortgaged Property or to any legal
action brought to obtain judgment against any Mortgagor on the Mortgage Note
or
Mortgage or to obtain a deficiency judgment, or to enforce any other remedies
or
rights provided by the Mortgage Note or Mortgage or otherwise available at
law
or in equity. Each such certification shall include a request that such
pleadings or documents be executed by the Trustee and a statement as to the
reason such documents or pleadings are required and that the execution and
delivery thereof by the Trustee will not invalidate or otherwise affect the
lien
of the Mortgage, except for the termination of such a lien upon completion
of
the foreclosure or trustee’s sale.
Section
3.18. Servicing
Compensation.
As
compensation for the activities of the Servicer hereunder, the Servicer shall
be
entitled to the Servicing Fee with respect to each Mortgage Loan payable solely
from payments of interest in respect of such Mortgage Loan, subject to Section
3.24. In addition, the Servicer shall be entitled to recover unpaid Servicing
Fees out of Insurance Proceeds, Subsequent Recoveries or Liquidation Proceeds
to
the extent permitted by Section 3.11(a)(iii). The right to receive the Servicing
Fee may not be transferred in whole or in part except in connection with the
transfer of all of the Servicer’s responsibilities and obligations under this
Agreement; provided, however, that the Servicer may pay from the Servicing
Fee
any amounts due to a Sub-Servicer pursuant to a Sub-Servicing Agreement entered
into under Section 3.02.
Additional
servicing compensation in the form of assumption fees, late payment charges,
insufficient funds charges, ancillary income or otherwise shall be retained
by
the Servicer only to the extent such fees or charges are received by the
Servicer. The Servicer shall also be entitled pursuant to Section 3.11(a)(iv)
to
withdraw from the Certificate Account and pursuant to Section 3.25(b) to
withdraw from any REO Account, as additional servicing compensation, interest
or
other income earned on deposits therein, subject to Section 3.12 and Section
3.24. The Servicer shall be required to pay all expenses incurred by it in
connection with its servicing activities hereunder (including premiums for
the
insurance required by Section 3.14, to the extent such premiums are not paid
by
the related Mortgagors or by a Sub-Servicer and servicing compensation of each
Sub-Servicer) and shall not be entitled to reimbursement therefor except as
specifically provided herein.
In
addition, the Servicer shall be entitled to any Prepayment Interest Excess,
which it may withdraw from the Certificate Account pursuant to Section
3.11(a)(x).
Section
3.19. Reports
to the Trustee; Certificate Account Statements.
Not
later
than twenty days after each Distribution Date, the Servicer shall forward,
upon
request, to the Trustee, the Certificate Insurer and the Depositor, the most
current available bank statement for the Certificate Account. Copies of such
statement shall be provided by the Trustee to any Certificateholder or
Certificate Owner, to the Certificate Insurer and to any Person identified
to
the Trustee as a prospective transferee of a Certificate, upon request at the
expense of the requesting party; provided, that such statement is delivered
by
the Servicer to the Trustee.
Section
3.20. Statement
as to Compliance.
The
Servicer shall deliver to the Trustee via electronic mail
(XXXXX.Xxxxxxxxxxxxx@xx.xxx), the Depositor, the Certificate Insurer and the
Rating Agencies on or before March 15 of each year, commencing in 2007, an
officer’s certificate, certifying that with respect to the period ending
December 31st of the prior year: (i) the Servicer or such Servicing Officer,
as
applicable, has reviewed the activities of the Servicer during the preceding
calendar year or portion thereof and its performance under this Agreement and
(ii) to the best of the Servicer’s or such Servicing Officer’s knowledge, as
applicable, based on such review, the Servicer has performed and fulfilled
its
duties, responsibilities and obligations under this Agreement in all material
respects throughout such year, or, if there has been a default in the
fulfillment of any such duties, responsibilities or obligations, specifying
each
such default known to such Servicing Officer and the nature and status thereof.
Copies of any such statement shall be provided by the Trustee to any
Certificateholder and to any Person identified to the Trustee as a prospective
transferee of a Certificate, upon request at the expense of the requesting
party, provided such statement is delivered by the Servicer to the Trustee.
In
addition to the foregoing, the Servicer will, to the extent reasonable, give
any
other servicing information required by the Commission pursuant to applicable
law.
Section
3.21. Assessments
of Compliance and Attestation Reports.
The
Servicer shall service and administer the Mortgage Loans in accordance with
all
applicable requirements of the Servicing Criteria (as set forth in Exhibit
R
hereto). Pursuant to Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122
of Regulation AB, the Servicer shall deliver to the Trustee via electronic
mail
(XXXXX.Xxxxxxxxxxxxx@xx.xxx), the Certificate Insurer and the Depositor prior
to
(x) March 15, 2007 and (y) unless and until a Form 15 Suspension Notice shall
have been filed, prior to March 15th of each year thereafter, a report regarding
the Servicer’s assessment of compliance (an “Assessment of Compliance”) with the
Servicing Criteria during the preceding calendar year. The Assessment of
Compliance must be reasonably satisfactory to the Depositor, and as set forth
in
Regulation AB, the Assessment of Compliance must contain the
following:
a. A
statement by such officer of its responsibility for assessing compliance with
the Servicing Criteria applicable to the Servicer;
b. A
statement by such officer that such officer used the Servicing Criteria, and
which will also be attached to the Assessment of Compliance, to assess
compliance with the Servicing Criteria applicable to the Servicer;
c. An
assessment by such officer of the Servicer’s compliance with the applicable
Servicing Criteria for the period consisting of the preceding calendar year,
including disclosure of any material instance of noncompliance with respect
thereto during such period, which assessment shall be based on the activities
it
performs with respect to asset-backed securities transactions taken as a whole
involving the Servicer, that are backed by the same asset type as the Mortgage
Loans;
d. A
statement that a registered public accounting firm has issued an attestation
report on the Servicer’s Assessment of Compliance for the period consisting of
the preceding calendar year; and
e. A
statement as to which of the Servicing Criteria, if any, are not applicable
to
the Servicer, which statement shall be based on the activities it performs
with
respect to asset-backed securities transactions taken as a whole involving
the
Servicer, that are backed by the same asset type as the Mortgage
Loans.
Such
report at a minimum shall address each of the Servicing Criteria specified
on
Exhibit R hereto which are indicated as applicable to the Servicer.
Prior
to
(x) March 15, 2007 and (y) unless and until a Form 15 Suspension Notice shall
have been filed, prior to March 15th of each year thereafter, the Servicer
shall
furnish to the Trustee and the Depositor a report (an “Attestation Report”) by a
registered public accounting firm that attests to, and reports on, the
Assessment of Compliance made by the Servicer, as required by Rules 13a-18
and
15d-18 of the Exchange Act and Item 1122(b) of Regulation AB, which Attestation
Report must be made in accordance with standards for attestation reports issued
or adopted by the Public Company Accounting Oversight Board.
The
Servicer shall cause and any sub-servicer, and each subcontractor determined
by
the Servicer to be “participating in the servicing function” within the meaning
of Item 1122 of Regulation AB, to deliver to the Trustee and the Depositor
an
Assessment of Compliance and Attestation Report as and when provided
above.
Such
Assessment of Compliance, as to any Sub-Servicer, shall at a minimum address
each of the Servicing Criteria specified on Exhibit R hereto which are indicated
as applicable to any “primary servicer.” Notwithstanding the foregoing, as to
any subcontractor, an Assessment of Compliance is not required to be delivered
unless it is required as part of a Form 10-K with respect to the Trust
Fund.
If
the
Servicer cannot deliver any Assessment of Compliance or Attestation Report
by
March 15th of such year, the Depositor, at its sole option, may permit a cure
period for the Servicer to deliver such Assessment of Compliance or Attestation
Report, but in no event later than March 25th of such year.
Failure
of the Servicer to timely comply with this Section 3.21 may be deemed an Event
of Default. The Trustee shall, with the consent of the Depositor, in addition
to
whatever rights the Trustee may have under this Agreement and at law or equity
or to damages, including injunctive relief and specific performance, give notice
to Certificateholders that they have ten Business Days to object. If no such
objection is received and so long as no Certificate Insurer Default is
continuing, if the Certificate Insurer consents in writing, the Trustee shall
immediately terminate all the rights and obligations of the Servicer under
this
Agreement and in and to the Mortgage Loans and the proceeds thereof without
compensating the Servicer for the same. This paragraph shall supersede any
other
provision in this Agreement or any other agreement to the contrary.
The
Trustee shall, prior to (x) March 15, 2007 and (y) unless and until a Form
15
Suspension Notice shall have been filed, prior to March 15th of each year
thereafter, shall also provide an Assessment of Compliance and Attestation
Report, as and when provided above, which shall at a minimum address each of
the
Servicing Criteria specified on Exhibit R hereto which are indicated as
applicable to the “trustee.”
The
Servicer shall indemnify and hold harmless the Depositor and its 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
a
breach of the Servicer’s obligations under this Section 3.21.
Section
3.22. Commission
Reporting.
(i) Unless
and until a Form 15 Suspension Notice shall have been filed, the Trustee shall,
within 15 days after each Distribution Date and in accordance with industry
standards, file with the Commission via the Electronic Data Gathering and
Retrieval System (“XXXXX”), a Distribution Report on Form 10-D (the
“Distribution Report”) with a copy of the Monthly Statement to be furnished by
the Trustee to the Certificateholders for such Distribution Date and, if
applicable, including the information required by each of the items set forth
in
Part II thereof, subject to the receipt of the information set forth in (f)
below, in the case of information not required to be provided by the
Trustee.
(ii)
Except
with respect to the Distribution Report to be filed following the first
Distribution Date, the Trustee shall prepare each Distribution Report and,
no
later than 5 Business Days prior to the date on which such Distribution Report
is required to be filed, deliver a copy of such Distribution Report 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
Distribution Report. The Trustee shall make any changes thereto requested by
the
Depositor and deliver the final Distribution Report to the Depositor for
signature no later than three Business Days prior to the date on which such
Distribution Report must be filed by the Trustee in accordance with clause
(i)
above. The Depositor shall execute the final Distribution Report 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 Distribution Report is
required to be filed), with an original executed hard copy to follow by
overnight mail. With respect to the Distribution Report to be filed following
the first Distribution Date, the Depositor shall prepare and execute such
Distribution Report and, no later than 5 Business Days prior to the date on
which such Distribution Report is required to be filed, deliver a copy of such
Distribution Report to the Trustee. The Trustee shall attach thereto the Monthly
Statement furnished by the Trustee to the Certificateholders for such
Distribution Date and file such Distribution Report in accordance with clause
(a) above.
(iii) The
Depositor shall prepare and file Current Reports on Form 8-K, as and when
required.
(iv) Prior
to
January 30th of the first year in which the Trustee is able to do so under
applicable law, the Trustee shall, in accordance with industry standards, file
a
Form 15 Suspension Notice with respect to the Trust Fund.
(v) Prior
to
(x) March 15, 2007 and (y) unless and until a Form 15 Suspension Notice shall
have been filed, prior to March 15th of each year thereafter, the Servicer
shall
provide the Trustee with an Annual Compliance Statement, together with a copy
of
the Assessment of Compliance and Attestation Report to be delivered by the
Servicer pursuant to Sections 3.20 and 3.21. Prior to (x) March 31, 2007 and
(y)
unless and until a Form 15 Suspension Notice shall have been filed, March 31st
of each year thereafter, the Trustee shall, subject to subsection (e) below,
file a Form 10-K, with respect to the Trust Fund. 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 clause (iv). 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
Form 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 3.20 and 3.21 and
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.
(vi) 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 S 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 S as the
responsible party for providing that information. In the case of information
to
be included in the Form 10-D, such information shall be delivered to the Trustee
no later than no later than 5 calendar days following each Distribution Date.
In
the case of information to be included in the Form 8-K, such information shall
be delivered to the Depositor no later than 2 Business Days following the
occurrence of a reportable event. In the case of information to be included
in
the Form 10-K, such information, other than the documentation provided pursuant
to Sections 3.20, 3.21 and 3.22, shall be delivered to the Trustee no later
than
(x) March 1, 2007 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.
(vii) 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 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).
(viii) The
Trustee shall indemnify and hold harmless the Depositor and its officers,
directors and Affiliates from and against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments
and other costs and expenses arising out of or based upon (i) a breach of the
Trustee’s obligations under this Section 3.22, Section 3.21 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 3.21. If the indemnification provided for herein is
unavailable or insufficient to hold harmless the Depositor, then the Trustee,
in
connection with (i) a breach of the Trustee’s obligations under this
Section 3.22, Section 3.21 or (ii) any material misstatement or omission
contained in any information provided by the Trustee including, without
limitation, in the certification provided by the Trustee in the form of Exhibit
O-2, or in the Assessment of Compliance or Attestation report provided pursuant
to Section 3.21, agrees that it shall contribute to the amount paid or payable
by the Depositor as a result of the losses, claims, damages or liabilities
of
the Depositor in such proportion as is appropriate to reflect the relative
fault
of the Depositor on the one hand and the Trustee on the other. This
indemnification shall survive the termination of this Agreement or the
termination of any party to this Agreement.
The
Servicer shall indemnify and hold harmless the Depositor, the Trustee, the
Certificate Insurer 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 3.20, 3.21 or 3.22 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
3.20 and 3.21. 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, the
Certificate Insurer 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 3.22 or (ii) any material
misstatement or omission contained in any information provided by the
Depositor.
(ix) 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 obtain
any
information in a timely manner from the party responsible for delivery of such
disclosure 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 addressed set forth in Section
11.05. Fees and expenses incurred by the Trustee in connection with this Section
3.24 shall not be reimbursable from the Trust Fund.
(x) Upon
any
filing with the Commission, the Trustee shall promptly deliver to the Depositor
a copy of any executed report, statement or information.
(xi) To
the
extent that, following the Closing Date, the Depositor certifies that reports
and certifications differing from those required under this Section 3.22 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 3.22 in order to comply with such amended reporting
requirements and such amendment of this Section 3.22. 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 3.20, 3.21
and
this Section 3.22 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.
Section
3.23. Reserved.
Section
3.24. Access
to Certain Documentation.
The
Servicer shall provide to the Office of Thrift Supervision, the FDIC, and any
other federal or state banking or insurance regulatory authority that may
exercise authority over any Certificateholder or Certificate Owner, access
to
the documentation regarding the Mortgage Loans required by applicable laws
and
regulations. Such access shall be afforded without charge, but only upon
reasonable request and reasonable advance notice and during normal business
hours at the offices of the Servicer designated by it. In addition, access
to
the documentation regarding the Mortgage Loans will be provided to any
Certificateholder or Certificate Owner, the Certificate Insurer, the Trustee
and
any Person identified to the Servicer as a prospective transferee of a
Certificate, upon reasonable request and reasonable advance notice during normal
business hours at the offices of the Servicer designated by it at the expense
of
the Person requesting such access.
Section
3.25. Title,
Maintenance and Disposition of REO Property.
(a) The
deed
or certificate of sale of any REO Property shall be taken in the name of the
Trustee, or its nominee, in trust for the benefit of the Certificateholders
and
the Certificate Insurer. 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 in such a manner or pursuant to any terms that would (i) cause the
Mortgaged Property to fail to qualify as “foreclosure property” within the
meaning of Section 860G(a)(8) of the Code or (ii) subject any REMIC to the
imposition of any federal, state, or local income taxes on the proceeds received
from the Mortgaged Property under Section 860G(c) of the Code or otherwise,
unless the Servicer has agreed to indemnify and hold harmless the Trust Fund
with respect to the imposition of any such taxes.
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
Distribution Account.
(b) The
Servicer shall separately account for any funds collected in connection with
any
REO Property and shall establish and maintain, or cause to be established and
maintained, with respect to REO Properties an account held in trust for the
Trustee for the benefit of the Certificateholders and the Certificate Insurer
(the “REO Account”), which shall be an Eligible Account. The Servicer shall be
permitted to allow the Certificate Account to serve as the REO Account, subject
to separate ledgers for each REO Property. The Servicer shall be entitled to
retain or withdraw any interest income paid on funds deposited in the REO
Account.
(c) The
Servicer shall deposit, or cause to be deposited in the clearing account in
which it customarily deposits payments and collections on mortgage loans in
connection with its mortgage loan servicing activities on a daily basis, and
in
no event more than one Business Day after the Servicer’s receipt thereof, and
shall thereafter deposit in the REO Account, in no event more than two Business
Days after the Servicer’s receipt thereof, any amounts collected in respect of
an REO Property and shall withdraw therefrom funds necessary for the proper
maintenance and preservation of such REO Property including, without
limitation:
(i) all
insurance premiums due and payable in respect of such REO Property;
(ii) all
real
estate taxes and assessments in respect of such REO Property that may result
in
the imposition of a lien thereon; and
(iii) all
costs
and expenses necessary to maintain such REO Property.
To
the
extent that amounts on deposit in the REO Account with respect to an REO
Property are insufficient for the purposes set forth in clauses (i) through
(iii) above with respect to such REO Property, the Servicer shall advance from
its own funds such amount as is necessary for such purposes if, but only if,
the
Servicer would make such advances if the Servicer owned the REO Property and
if
in the Servicer’s judgment, the payment of such amounts will be recoverable from
the proceeds of the REO Property.
Notwithstanding
the foregoing, following the date of acquisition by the Trust Fund, neither
the
Servicer nor the Trustee shall knowingly:
(i) authorize
the Trust Fund to enter into, renew or extend any New Lease with respect to
any
REO Property;
(ii) authorize
any amount to be received or accrued under any New Lease other than amounts
that
will constitute Rents from Real Property;
(iii) authorize
any construction on any REO Property; or
(iv) authorize
any Person to Directly Operate any REO Property on any date more than 90 days
after its date of acquisition by the Trust Fund.
(d) In
addition to the withdrawals permitted under Section 3.25(d), the Servicer may
from time to time make withdrawals from the REO Account for any REO Property:
(i) to pay itself or any Sub-Servicer unpaid Servicing Fees in respect of the
related Mortgage Loan; and (ii) to reimburse itself or any Sub-Servicer for
unreimbursed Servicing Advances and Advances made in respect of such REO
Property or the related Mortgage Loan. On the Servicer Remittance Date, the
Servicer shall withdraw from each REO Account maintained by it and deposit
into
the Distribution Account in accordance with Section 3.10(d)(ii), for
distribution on the related Distribution Date in accordance with Section 4.01,
any proceeds from the related REO Property received during the prior calendar
month, net of any withdrawals made pursuant to Section 3.25(c) or this Section
3.25(d).
(e) [Reserved].
(f) The
proceeds from the REO Disposition, net of any amount required by law to be
remitted to the Mortgagor under the related Mortgage Loan and net of any payment
or reimbursement to the Servicer or any Sub-Servicer as provided above, shall
be
deposited in the Distribution Account in accordance with Section 3.10(d)(ii)
on
the Servicer Remittance Date in the month following the receipt thereof for
distribution on the related Distribution Date in accordance with Section 4.01.
Any REO Disposition shall be for cash only (unless changes in the REMIC
Provisions made subsequent to the Startup Day allow a sale for other
consideration).
(g) The
Servicer shall file information returns with respect to the receipt of mortgage
interest received in a trade or business, reports of foreclosures and
abandonments of any Mortgaged Property and cancellation of indebtedness income
with respect to any Mortgaged Property as required by Sections 6050H, 6050J
and
6050P of the Code, respectively. Such reports shall be in form and substance
sufficient to meet the reporting requirements imposed by such Sections 6050H,
6050J and 6050P of the Code.
Section
3.26. Obligations
of the Servicer in Respect of Prepayment Interest Shortfalls.
Not
later
than 3:00 p.m. New York time on each Servicer Remittance Date, the Servicer
shall remit from its own funds to the Distribution Account an amount
(“Compensating Interest”) equal to the lesser of (A) the aggregate of the
Prepayment Interest Shortfalls for the related Distribution Date and (B)
one-half of its aggregate Servicing Fee received in the related Remittance
Period. The Servicer shall not have the right to reimbursement for any amounts
remitted to the Trustee in respect of Compensating Interest. Such amounts so
remitted shall be included in the Available Funds and distributed therewith
on
the next Distribution Date. The Servicer shall not be obligated to pay any
compensating amounts with respect to Relief Act Interest
Shortfalls.
Section
3.27. [Reserved].
Section
3.28. Obligations
of the Servicer in Respect of Mortgage Rates and Monthly
Payments.
In
the
event that a shortfall in any collection on or liability with respect to the
Mortgage Loans in the aggregate results from or is attributable to adjustments
to Mortgage Rates, Monthly Payments or Stated Principal Balances that were
made
by the Servicer in a manner not consistent with the terms of the related
Mortgage Note and this Agreement, the Servicer, upon discovery or receipt of
notice thereof, immediately shall deposit in the Certificate Account from its
own funds the amount of any such shortfall and shall indemnify and hold harmless
the Trust Fund, the Trustee, the Depositor, the Certificate Insurer and any
successor Servicer in respect of any such liability. Such indemnities shall
survive the termination or discharge of this Agreement. Notwithstanding the
foregoing, this Section 3.26 shall not limit the ability of the Servicer to
seek
recovery of any such amounts from the related Mortgagor under the terms of
the
related Mortgage Note, as permitted by law.
Section
3.29. Excess
Reserve Fund Account.
(a) No
later
than the Closing Date, the Trustee shall establish and maintain with itself
a
separate, segregated trust account titled, “Excess Reserve Fund Account,
Deutsche Bank National Trust Company, as Trustee, in trust for registered
Holders of IndyMac Residential Mortgage-Backed Trust Certificates, Series
2006-L3.” The Excess Reserve Fund Account shall be an Eligible Account. On the
Closing Date, the Depositor will deposit, or cause to be deposited, into the
Excess Reserve Fund Account, $5,000.
On
each
Distribution Date as to which there is a Net WAC Rate Carryover Amount that
will
remain unpaid to the Holders of the Class A Certificates or the Subordinated
Certificates, the Trustee has been directed by the Class C Certificateholders
to, and therefore will, deposit into the Excess Reserve Fund Account the amounts
described in Section 4.01(d)(vii), rather than distributing such amounts to
the
Class C Certificateholders. On each such Distribution Date, the Trustee shall
hold all such amounts for the benefit of the Holders of the Class A Certificates
and the Subordinated Certificates, and will distribute such amounts to the
Holders of the Class A Certificates and the Subordinated Certificates in the
amounts and priorities set forth in Section 4.01(e). If no unpaid Net WAC Rate
Carryover Amounts are payable from the Excess Reserve Fund Account on a
Distribution Date, the Trustee shall deposit into the Excess Reserve Fund
Account on behalf of the Class C Certificateholders, from amounts otherwise
distributable to the Class C Certificateholders, an amount such that when added
to other amounts already on deposit in the Excess Reserve Fund Account, the
aggregate amount on deposit therein is equal to $5,000.
It
is the
intention of the parties hereto that, for federal and state income and state
and
local franchise tax purposes, the Excess Reserve Fund Account be disregarded
as
an entity separate from the Holder of the Class C Certificates unless and until
the date when either (a) there is more than one Class C Certificateholder or
(b)
any Class of Certificates in addition to the Class C Certificates is
recharacterized as an equity interest in the Excess Reserve Fund Account for
federal income tax purposes, in which case it is the intention of the parties
hereto that, for federal and state income and state and local franchise tax
purposes, the Excess Reserve Fund Account be treated as a partnership. All
amounts deposited into the Excess Reserve Fund Account shall be treated as
amounts distributed by REMIC 2 to the Holders of the Class C Certificates.
The
Excess Reserve Fund Account will be an “outside reserve fund” within the meaning
of Treasury regulation Section 1.860G-2(h). Upon the termination of the Trust
Fund, or the payment in full of the Class A Certificates and the Subordinated
Certificates, all amounts remaining on deposit in the Excess Reserve Fund
Account will be released by the Trust Fund and distributed to the Class C
Certificateholders or their designees. The Excess Reserve Fund Account will
be
part of the Trust Fund but not part of any REMIC, and any payments to the
Holders of the Class A Certificates or the Subordinated Certificates of Net
WAC
Rate Carryover Amounts from the Excess Reserve Fund Account will not be payments
with respect to a “regular interest” in a REMIC within the meaning of Code
Section 860(G)(a)(1).
By
accepting a Class C Certificate, each Class C Certificateholder hereby agrees
to
direct the Trustee, and the Trustee hereby is directed, to deposit into the
Excess Reserve Fund Account the amounts described above on each Distribution
Date as to which there is any Net WAC Rate Carryover Amount that will remain
unpaid to the Holders of the Class A Certificates or the Subordinated
Certificates, rather than distributing such amounts to the Class C
Certificateholders. By accepting a Class C Certificate, each Class C
Certificateholder further agrees that such direction is given for good and
valuable consideration, the receipt and sufficiency of which are acknowledged
by
such acceptance.
The
Servicer shall direct any depository institution maintaining the Excess Reserve
Fund Account to invest the funds in such account in one or more Permitted
Investments bearing interest or sold at a discount, and maturing, unless payable
on demand, (i) no later than the Business Day immediately preceding the date
on
which such funds are required to be withdrawn from such account pursuant to
this
Agreement, if a Person other than the Trustee or an Affiliate manages or advises
such investment, and (ii) no later than the date on which such funds are
required to be withdrawn from such account pursuant to this Agreement, if the
Trustee or an Affiliate manages or advises such investment. If no investment
direction of the Servicer with respect to the Excess Reserve Fund Account is
received by the Trustee, the Trustee shall invest the funds in Deutsche Bank
Institutional Cash Management Fund No. 541. The Trustee shall not be responsible
for any losses incurred with respect to any investment of funds pursuant to
this
Section 3.27(a), except to the extent that the Trustee is the obligor on such
Permitted Investment. All income realized from investment of funds in the Excess
Reserve Fund Account shall be distributed to the Holders of the Class C
Certificates.
For
federal tax return and information reporting, the right of the Holders of the
Class A Certificates and the Subordinated Certificates to receive payments
from
the Excess Reserve Fund Account in respect of any unpaid Net WAC Rate Carryover
Amount shall be assigned a value of $0, which value the Trustee shall identify
to any Certificateholder that requests such information by contacting the
Trustee in writing.
Section
3.30. Prepayment
Charges
(a)
The
Servicer shall not waive any part of any Prepayment Charge unless the waiver
relates to a default or a reasonably foreseeable default, 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
shall
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)
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.
(c)
Upon
discovery by the Seller or a Responsible Officer of the Trustee of a breach
of
the foregoing clause (b) that materially and adversely affects right of the
Holders of the Class P Certificate to any Prepayment Charge, the party
discovering the breach shall give prompt written notice to the other parties.
Within sixty (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 Servicing Account the amount of the
scheduled Prepayment Charge, less any amount previously collected and paid
by
the Servicer into the Servicing Account. If the covenant made by the Servicer
in
clause (a) above is breached, the Servicer must pay into the Servicing Account
the amount of the waived Prepayment Charge.
ARTICLE
IV
FLOW
OF
FUNDS
Section
4.01. Distributions.
(a) On
each
Distribution Date, prior to making any distributions on the Certificates, the
Trustee shall withdraw from the Distribution Account, from amounts on deposit
therein, amounts representing the Trustee Fee payable for such Distribution
Date
and any and all expenses owing to it under the terms of this Agreement, which
the Trustee shall pay to itself. Following such payments, on each Distribution
Date the Trustee shall withdraw from the Distribution Account that portion
of
Available Funds for such Distribution Date, consisting of the Interest
Remittance Amount for such Distribution Date, and shall make the following
disbursements and transfers in the order of priority described below, in each
case to the extent of the Interest Remittance Amount remaining for such
Distribution Date:
(i) to
the
Certificate Insurer, the amount owing under the Insurance Agreement for the
Premium payable in respect of the Insured Certificates;
(ii) to
the
Holders of the Class A-1, Class A-2 and Class A-3 Certificates, pro
rata,
based
on the entitlement of each such Class, the Accrued Certificate Interest and
the
Unpaid Interest Shortfall Amount, if any, related to such Class for such
Distribution Date;
(iii) to
the
Certificate Insurer, the amount owing under the Insurance Agreement for
reimbursement for prior claims paid under the Policy and any other amounts
owing
to the Certificate Insurer under the Insurance Agreement;
(iv) to
the
Holders of the Class M Certificates, the Accrued Certificate Interest for such
Class for such Distribution Date; and
(v) to
the
Holders of the Class B Certificates, the Accrued Certificate Interest for such
Class for such Distribution Date.
(b) On
each
Distribution Date (a) prior to the Stepdown Date or (b) on which a Trigger
Event
is in effect, the Trustee shall withdraw from the Distribution Account an amount
equal to the Principal Distribution Amount and distribute to the
Certificateholders the following amounts, in the following order of priority,
in
each case to the extent of the Principal Distribution Amount remaining for
such
Distribution Date:
(i) sequentially,
to the Holders of the Class A-1, Class A-2 and Class A-3 Certificates, in that
order, until the Certificate Principal Balance of each such Class has been
reduced to zero;
(ii) to
the
Certificate Insurer, the amount owing under the Insurance Agreement for
reimbursement for prior claims paid under the Policy and any other amounts
owing
to the Certificate Insurer under the Insurance Agreement, to the extent not
paid
pursuant to clause Section 4.01(a) above and to the extent of the Principal
Distribution Amount remaining after the distribution in Section 4.01(b)(i)
above;
(iii) to
the
Holders of the Class M Certificates, until the Certificate Principal Balance
thereof has been reduced to zero;
(iv) to
the
Holders of the Class B Certificates, until the Certificate Principal Balance
thereof has been reduced to zero.
(c) On
each
Distribution Date (a) on or after the Stepdown Date and (b) on which a Trigger
Event is not in effect, the Trustee shall withdraw from the Distribution Account
an amount equal to the Principal Distribution Amount and distribute to the
Certificateholders the following amounts, in the following order of priority,
in
each case to the extent of the Principal Distribution Amount remaining for
such
Distribution Date:
(i) sequentially,
to the Holders of the Class A-1, Class A-2 and Class A-3 Certificates, the
Class
A Principal Distribution Amount for such Distribution Date, in that order,
until
the aggregate Certificate Principal Balance of such Class has been reduced
to
zero;
(ii) to
the
Certificate Insurer, the amount owing to the Certificate Insurer under the
Insurance Agreement for reimbursement for prior claims paid under the Policy
and
any other amounts owing to the Certificate Insurer under the Insurance
Agreement, to the extent not paid pursuant to Section 4.01(a) above and to
the
extent of the Principal Distribution Amount remaining after the distribution
in
Section 4.01(c)(i) above;
(iii) to
the
Holders of the Class M Certificates, the Class M Principal Distribution Amount
for such Distribution Date, until the Certificate Principal Balance thereof
has
been reduced to zero;
(iv) to
the
Holders of the Class B Certificates, the Class B Principal Distribution Amount
for such Distribution Date, until the Certificate Principal Balance thereof
has
been reduced to zero.
(d) On
each
Distribution Date, the Total Monthly Excess Spread shall be distributed as
follows:
(i) in
the
case of each Distribution Date occurring in January, February or March 2007,
to
the holders of the Class C Certificates, 100% of the Total Monthly Excess
Spread;
(ii) in
the
case of a Distribution Date other than a Distribution Date occurring in January,
February or March 2007, to the Holders of the Certificates then entitled to
distributions of principal, the Extra Principal Distribution Amount payable
to
such Holders as part of the Principal Distribution Amount to the extent of
their
respective entitlements to principal as set forth in Section 4.01(b) and Section
4.01(c) above;
(iii) to
the
Holders of the Class M Certificates, in an amount equal to the Unpaid Interest
Shortfall Amount for such Distribution Date and such Class of
Certificates;
(iv) to
the
Holders of the Class M Certificates, in an amount equal to the Allocated
Realized Loss Amount for such Distribution Date and such Class of
Certificates;
(v) to
the
Holders of the Class B Certificates, in an amount equal to the Unpaid Interest
Shortfall Amount for such Distribution Date and such Class of
Certificates;
(vi) to
the
Holders of the Class B Certificates, in an amount equal to the Allocated
Realized Loss Amount for such Distribution Date and such Class of
Certificates;
(vii) to
the
Excess Reserve Fund Account, for distribution therefrom to the Holders of the
Class A Certificates and the Subordinated Certificates, the amount of any Net
WAC Rate Carryover Amounts for such Distribution Date, to the extent of their
respective entitlements as set forth in Section 4.01(e);
(viii) reserved;
(ix) to
the
Holders of the Class C Certificates, (a) the Accrued Certificate Interest for
such Class and any Excess Overcollateralization Amount for such Distribution
Date and (b) on any Distribution Date on which the Certificate Principal
Balances of the Class A Certificates and the Subordinated Certificates have
been
reduced to zero, any remaining Available Funds;
(x) if
such
Distribution Date follows the Prepayment Period during which occurs the latest
date on which a Prepayment Charge may be required to be paid in respect of
any
Mortgage Loans, to the Holders of the Class P Certificates, in reduction of
the
Certificate Principal Balance thereof, until the Certificate Principal Balance
thereof is reduced to zero; and
(xi) any
remaining amounts to the Holders of the Class R Certificates (in respect of
the
Class R-2 Interest).
On
each
Distribution Date, an amount equal to all Prepayment Charges received during
the
related Prepayment Period together with the amounts paid in respect thereof
pursuant to Section 3.30 shall be distributed to the Holders of the Class P
Certificates. The distribution of the foregoing amounts to the Holders of the
Class P Certificates shall not reduce the Class Certificate Balance
thereof.
On
each
Distribution Date, following the foregoing distributions, an amount equal to
the
amount of Subsequent Recoveries deposited into the Certificate Account pursuant
to Section 3.05 and included in the Available Funds for such Distribution Date
shall be applied to increase the Certificate Principal Balance of the Class
of
Subordinated Certificates with the Highest Priority up to the extent of such
Realized Losses previously allocated to that Class of Certificates pursuant
to
Section 4.04. An amount equal to the amount of any remaining Subsequent
Recoveries shall be applied to increase the Certificate Principal Balance of
the
Class of Certificates with the next Highest Priority, up to the amount of such
Realized Losses previously allocated to that Class of Certificates pursuant
to
Section 4.04, and so on. Holders of such Certificates will not be entitled
to
any distribution in respect of interest on the amount of such increases for
any
Accrual Period preceding the Distribution Date on which such increase occurs.
Any such increases shall be applied to the Certificate Principal Balance of
each
Certificate of such Class in accordance with its respective Percentage
Interest.
(e) On
each
Distribution Date, following the distributions made pursuant to Section 4.01(a),
Section 4.01(b) or Section 4.01(c), as applicable, and Section 4.01(d), the
Trustee shall withdraw from the Excess Reserve Fund Account the lesser of (A)
the amount on deposit therein and (B) the aggregate of any Net WAC Rate
Carryover Amounts for such Distribution Date and shall distribute the amount
so
withdrawn to the Holders of the Class A Certificates and the Subordinated
Certificates in the following order of priority, in each case to the extent
of
the amount withdrawn:
From
amounts on deposit in the Excess Reserve Fund Account as follows:
(i) concurrently,
to the Class A-1, Class A-2 and Class A-3 Certificates, pro
rata,
based
on entitlement, the Net WAC Rate Carryover Amount for each such Class and each
such Distribution Date; and
(ii) sequentially,
to the Class M and Class B Certificates, in that order, the Net WAC Rate
Carryover Amount for each such Class and each such Distribution
Date.
(f) All
distributions made with respect to the Certificates of each Class on each
Distribution Date shall be allocated pro
rata
among
the outstanding Certificates of such Class based on their respective Percentage
Interests. Payments in respect of the Certificates of each Class on each
Distribution Date will be made to the Holders of record on the related Record
Date (except as otherwise provided in this Section 4.01(f), in Section 4.01(h)
or in Section 10.01, respecting the final distribution on the Certificates),
based on the aggregate Percentage Interest represented by their respective
Certificates in such Class, and shall be made by wire transfer of immediately
available funds to the account of any such Holder at a bank or other entity
having appropriate facilities therefor, or otherwise by check mailed by first
class mail to the address of such Holder appearing in the Certificate Register,
if such Holder shall have so notified the Trustee in writing at least five
Business Days prior to the Record Date immediately prior to such Distribution
Date. 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 of the Trustee or such other location specified in the notice
to
Certificateholders of such final distribution.
(g) The
rights of the Certificateholders to receive distributions in respect of the
Certificates, and all interests of the Certificateholders in such distributions,
shall be as set forth in this Agreement. In no event shall the Holders of any
Class of Certificates, the Trustee, the Depositor or the Servicer in any way
be
responsible or liable to the Holders of any other Class of Certificates in
respect of amounts properly previously distributed on the
Certificates.
Except
as
otherwise provided in Section 10.01, whenever the Trustee expects that the
final
distribution with respect to any Class of Certificates will be made on the
next
Distribution Date, the Trustee shall, no later than four days prior to the
related Distribution Date, send, by overnight delivery or by registered mail,
to
each Holder on such date of such Class of Certificates and the Certificate
Insurer a notice to the effect that:
(i) the
Trustee expects that the final distribution with respect to the Certificates
of
such Class will be made on such Distribution Date but only upon presentation
and
surrender of such Certificates at the office of the Trustee therein specified,
and
(ii) no
interest shall accrue on such Certificates from and after the end of the
calendar month preceding such final Distribution Date.
Any
funds
not distributed to any Holder or Holders of any Class of Certificates on such
final Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held in trust
by
the Trustee and credited to the account of the appropriate non-tendering Holder
or Holders. If any Certificates as to which notice has been given pursuant
to
this Section 4.01(h) shall not have been surrendered for cancellation within
six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Certificateholders to surrender their
Certificates for cancellation in order to receive the final distribution with
respect thereto. If within one year after the second notice all such
Certificates shall not have been surrendered for cancellation, the Trustee
shall, directly or through an agent, mail a final notice to the remaining
non-tendering Certificateholders concerning surrender of their Certificates
but
shall continue to hold any remaining funds for the benefit of non-tendering
Certificateholders. The costs and expenses of maintaining the funds in trust
and
of contacting such Certificateholders shall be paid out of the assets remaining
in such trust funds. If within one year after the final notice any such
Certificates shall not have been surrendered for cancellation, the Trustee
shall
pay to Xxxxxx Brothers Inc. all such amounts, and Xxxxxx Brothers Inc. shall
be
entitled to all unclaimed funds and other assets which remain subject hereto,
and the Trustee upon transfer of such funds shall be discharged of any
responsibility for such funds, and the Certificateholders shall look only to
Xxxxxx Brothers Inc. for payment. No interest shall accrue or be payable to
any
Certificateholder on any amount held in trust by the Trustee as a result of
such
Certificateholder’s failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 4.01(h). Any such amounts held in trust
by the Trustee shall be held in an Eligible Account and shall be held
uninvested.
Section
4.02. Statements.
(a) On
each
Distribution Date, based, as applicable, on information provided to it by the
Servicer, the Trustee shall prepare and make available to each Holder of the
Regular Certificates, the Servicer, the Certificate Insurer and the Rating
Agencies, a statement as to the distributions made on such Distribution
Date:
(i) the
amount of the distribution made on such Distribution Date to the Holders of
each
Class of the Certificates allocable to principal;
(ii) the
amount of the distribution made on such Distribution Date to the Holders of
each
Class of the Certificates allocable to interest;
(iii) reserved;
(iv) the
aggregate amount of servicing compensation received by the Servicer with respect
to the related Remittance Period (separately identifying Servicing Fees and
other servicing compensation) and such other customary information as the
Trustee reasonably deems necessary or desirable, or which a Certificateholder
reasonably requests, to enable Certificateholders to prepare their tax
returns;
(v) the
aggregate amount of Advances for the related Remittance Period;
(vi) the
Pool
Balance at the Close of Business at the end of the related Remittance
Period;
(vii) the
number, aggregate Stated Principal Balance, weighted average remaining term
to
maturity and weighted average Mortgage Rate of the Mortgage Loans as of the
related Determination Date;
(viii) the
number and aggregate unpaid Stated Principal Balance of Mortgage Loans (a)
that
were (A) Delinquent (exclusive of Mortgage Loans in bankruptcy or foreclosure
and REO Properties) (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more
days, (B) as to which foreclosure proceedings have been commenced and Delinquent
(1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (C) in bankruptcy
and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days,
in
each preceding case as of the Close of Business on the last day of the calendar
month preceding such Distribution Date, and (b) the related Mortgaged Properties
of which are REO Properties;
(ix) the
total
number and cumulative Stated Principal Balance of all REO Properties as of
the
Close of Business of the last day of the preceding Prepayment
Period;
(x) the
aggregate amount of Principal Prepayments made during the related Prepayment
Period;
(xi) the
aggregate amount of Realized Losses incurred during the related Prepayment
Period and the cumulative amount of Realized Losses;
(xii) the
aggregate amount of Subsequent Recoveries received during the related Prepayment
Period and the cumulative amount of Subsequent Recoveries received since the
Closing Date
(xiii) the
aggregate Certificate Principal Balance of each Class of Regular Certificates
after giving effect to the distributions, and allocations of Realized Losses,
made on such Distribution Date separately identifying any reduction thereof
due
to allocations of Realized Losses (in the case of the Subordinated Certificates
and the Class C Certificates);
(xiv) the
Certificate Factor for each Class of the Regular Certificates applicable to
such
Distribution Date;
(xv) the
Accrued Certificate Interest for the Class A Certificates, the Subordinated
Certificates and the Class C Certificates for such Distribution Date and Unpaid
Interest Shortfall Amount, if any, with respect to the Class A Certificates
and
the Subordinated Certificates for such Distribution Date;
(xvi) the
aggregate amount of any Net Prepayment Interest Shortfalls for such Distribution
Date;
(xvii) the
aggregate amount of any Relief Act Interest Shortfalls for such Distribution
Date;
(xviii) the
Overcollateralized Amount and the Excess Overcollateralization Amount for such
Distribution Date;
(xix) the
Credit Enhancement Percentage for such Distribution Date;
(xx) the
Net
WAC Rate Carryover Amount for the Class A Certificates and the Subordinated
Certificates, if any, for such Distribution Date and the amount remaining unpaid
after payments from the Excess Reserve Fund Account are made pursuant to Section
4.01(e);
(xxi) when
the
Stepdown Date has occurred and when a Trigger Event is in effect;
(xxii) the
deposits to and withdrawals from the Excess Reserve Fund Account on such
Distribution Date;
(xxiii) the
Available Funds for such Distribution Date;
(xxiv) the
respective Pass-Through Rates applicable to the Class A Certificates, the
Subordinated Certificates and the Class C Certificates for such Distribution
Date and the respective Pass-Through Rates applicable to the Class A
Certificates and the Subordinated Certificates for the immediately succeeding
Distribution Date;
(xxv) the
aggregate Notional Amount of the Class C Certificates, in each case after giving
effect the reductions thereof to occur on such Distribution Date;
and
(xxvi) the
amount of the Reimbursement Amount for such Distribution Date and the amount
received by the Certificate Insurer in respect thereof on such Distribution
Date.
The
Trustee will make such statement (and, at its option, any additional files
containing the same information in an alternative format) available each month
to Certificateholders, the Servicer, the Trustee, the Certificate Insurer and
the Rating Agencies via the Trustee’s internet website.
The
Trustee’s internet website shall initially be located at xxxxx://xxx.xxx.xx.xxx/xxxx.
Assistance in using the website can be obtained by calling the Trustee’s
customer service desk at 0-000-000-0000. Parties that are unable to use the
above distribution options are entitled to have a paper copy mailed to them
via
first class mail by calling the customer service desk and indicating such.
The
Trustee shall have the right to change the way such statements are distributed
in order to make such distribution more convenient and/or more accessible to
the
above parties and the Trustee shall provide timely and adequate notification
to
all above parties regarding any such changes.
In
the
case of information furnished pursuant to subclauses (i) and (ii) above, the
amounts shall be expressed in a separate section of the report as a dollar
amount for each hypothetical Certificate having an initial Certificate Principal
Balance or Notional Amount (in the case of the Class C Certificates) equal
to
$1,000.
(b) Within
a
reasonable period of time after the end of each calendar year, the Trustee
shall, upon written request, furnish to each Person who at any time during
the
calendar year was a Certificateholder of a Regular Certificate, if requested
in
writing by such Person, such information as is reasonably necessary to provide
to such Person a statement containing the information set forth in subclauses
(i) and (ii) above, 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 prepared and furnished by the Trustee to
Certificateholders pursuant to any requirements of the Code as are in force
from
time to time.
On
each
Distribution Date, the Trustee shall make available to the Class R
Certificateholders a copy of the reports forwarded to the Regular
Certificateholders in respect of such Distribution Date with such other
information as the Trustee deems necessary or appropriate.
Within
a
reasonable period of time after the end of each calendar year, the Trustee
shall
deliver to each Person who at any time during the calendar year was a Class
R
Certificateholder, if requested in writing by such Person, such information
as
is reasonably necessary to provide to such Person a statement containing the
information provided pursuant to the previous paragraph aggregated for such
calendar year or applicable portion thereof during which such Person was a
Class
R Certificateholder. Such obligation of the Trustee shall be deemed to have
been
satisfied to the extent that substantially comparable information shall be
prepared and furnished to Certificateholders by the Trustee pursuant to any
requirements of the Code as from time to time in force.
The
Trustee shall maintain at its Corporate Trust Office and shall make available
free of charge during normal business hours for review by any Certificateholder,
Certificate Owner or any Person identified to the Trustee as a prospective
transferee of a Certificate, originals or copies of the following items: (i)
the
private placement memorandum or other disclosure document relating to such
Certificates, if any, in the form most recently provided to the Trustee; and
(ii) in all cases, (A) this Agreement and any amendments hereof entered into
pursuant to Section 11.01, (B) all monthly statements required to be delivered
to Certificateholders of the relevant Class pursuant to this Section 4.02 since
the Closing Date, and all other notices, reports, statements and written
communications delivered to the Certificateholders of the relevant Class
pursuant to this Agreement since the Closing Date, (C) all certifications
delivered by a Responsible Officer of the Trustee since the Closing Date
pursuant to Section 9.01(h) and (D) any and all Officers’ Certificates delivered
to the Trustee by the Servicer since the Closing Date to evidence the Servicer’s
determination that any Advance or Servicing Advance was, or if made, would
be a
Nonrecoverable Advance or Nonrecoverable Servicing Advance, respectively. Copies
and mailing of any and all of the foregoing items will be available from the
Trustee upon request at the expense of the person requesting the
same.
Section
4.03. Remittance
Reports; Advances.
(a) By
each
Determination Date, the Servicer shall provide to the Trustee and the
Certificate Insurer in electronic form the information needed to determine
the
distributions to be made pursuant to Section 4.01 and any other information
on
which the Servicer and the Trustee mutually agree. 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 and the Certificate Insurer (which
delivery may be by electronic data transmission) a report in substantially
the
form agreed to by the Servicer and the Trustee. The Trustee shall not be
responsible to recompute, recalculate or verify any information provided to
it
by the Servicer.
(b) The
amount of Advances to be made by the Servicer for any Distribution Date shall
equal, subject to Section 4.03(d), the sum of (i) the aggregate amount of
Monthly Payments (net of the related Servicing Fee), due during the related
Remittance Period in respect of the Mortgage Loans, which Monthly Payments
were
delinquent on a contractual basis as of the Close of Business on the related
Determination Date and (ii) with respect to each REO Property, which REO
Property was acquired during or prior to the related Remittance Period and
as to
which REO Property an REO Disposition did not occur during the related
Remittance Period, an amount equal to the excess, if any, of the REO Imputed
Interest on such REO Property for the most recently ended calendar month, over
the net income from such REO Property transferred to the Distribution Account
pursuant to Section 3.25 for distribution on such Distribution
Date.
On
or
before 3:00 p.m. New York time on the Servicer Remittance Date, the Servicer
shall remit in immediately available funds to the Trustee for deposit in the
Distribution Account an amount equal to the aggregate amount of Advances, if
any, to be made in respect of the Mortgage Loans and REO Properties for the
related Distribution Date either (i) from its own funds or (ii) from the
Certificate Account, to the extent of funds held therein for future distribution
(in which case it will cause to be made an appropriate entry in the records
of
Certificate Account that amounts held for future distribution have been, as
permitted by this Section 4.03, used by the Servicer in discharge of any such
Advance) or (iii) in the form of any combination of (i) and (ii) aggregating
the
total amount of Advances to be made by the Servicer with respect to the Mortgage
Loans and REO Properties. Any amounts held for future distribution used by
the
Servicer to make an Advance as permitted in the preceding sentence shall be
appropriately reflected in the Servicer’s records and replaced by the Servicer
by deposit in the Certificate Account on or before any future Servicer
Remittance Date to the extent that the Available Funds for the related
Distribution Date (determined without regard to Advances to be made on the
Servicer Remittance Date) shall be less than the total amount that would be
distributed to the Certificateholders pursuant to Section 4.01 on such
Distribution Date if such amounts held for future distributions had not been
so
used to make Advances. The Trustee will provide notice to the Servicer by
telecopy by the Close of Business on any Servicer Remittance Date in the event
that the amount remitted by the Servicer to the Trustee on such date is less
than the Advances required to be made by the Servicer for the related
Distribution Date, as set forth in the related Remittance Report.
(c) The
obligation of the Servicer to make such Advances is mandatory, notwithstanding
any other provision of this Agreement but subject to (d) below, and, with
respect to any Mortgage Loan, shall continue until a Final Recovery
Determination in connection therewith or the removal thereof from the Trust
Fund
pursuant to any applicable provisions of this Agreement, except as otherwise
provided in this Section.
(d) Notwithstanding
anything herein to the contrary, no Advance or Servicing Advance shall be
required to be made hereunder by the Servicer if such Advance or Servicing
Advance would, if made, constitute a Nonrecoverable Advance. The determination
by the Servicer that it has made a Nonrecoverable Advance or that any proposed
Advance or Servicing Advance, if made, would constitute a Nonrecoverable
Advance, shall be evidenced by an Officers’ Certificate of the Servicer
delivered to the Depositor, the Certificate Insurer and the
Trustee.
Section
4.04. Distributions
on the REMIC Regular Interests.
On
each
Distribution Date, the Trustee shall cause the Available Funds from the
Distribution Account to make the following disbursements and transfers, in
the
following order of priority, to be distributed by REMIC 1 to REMIC 2 on account
of the REMIC 1 Regular Interests or withdrawn from the Distribution Account
and
distributed to the Holders of the Class R Certificates (in respect of the Class
R-1 Interest), as the case may be:
(i) first,
to
the extent of Available Funds, to Holders of REMIC 1 Regular Interest LT1AA,
REMIC 1 Regular Interest LT1A1, REMIC 1 Regular Interest LT1A2, REMIC 1 Regular
Interest LT1A3, REMIC 1 Regular Interest LT1M, REMIC 1 Regular Interest LT1B,
REMIC 1 Regular Interest LT1ZZ and REMIC 1 Regular Interest LT1P, pro
rata,
in an
amount equal to (A) the Uncertificated Accrued Interest for such Distribution
Date, plus (B) any amounts in respect thereof remaining unpaid from previous
Distribution Dates. Amounts payable as Uncertificated Accrued Interest in
respect of REMIC 1 Regular Interest LT1ZZ shall be reduced when the REMIC 1
Overcollateralized Amount is less than the REMIC 1 Target Overcollateralized
Amount, by the lesser of (x) the amount of such difference and (y) the Maximum
LT1ZZ Uncertificated Accrued Interest Deferral Amount and such amount will
be
payable to the Holders of REMIC 1 Regular Interest LT1AA, REMIC 1 Regular
Interest LT1A1, REMIC 1 Regular Interest LT1A2, REMIC 1 Regular Interest LT1A3,
REMIC 1 Regular Interest LT1M and REMIC 1 Regular Interest LT1B, in the same
proportion as the Overcollateralization Deficiency Amount is allocated to the
Corresponding Certificates and the Uncertificated Principal Balance of the
REMIC
1 Regular Interest LT1ZZ shall be increased by such amount;
(ii) second,
to the Holders of REMIC 1 Regular Interest LT1P, on each Distribution Date,
100%
of the amount paid in respect of Prepayment Charges; and
(iii) third,
to
the Holders of REMIC 1 Regular Interests, in an amount equal to the remainder
of
the Available Funds for such Distribution Date after the distributions made
pursuant to clause (i) above, allocated as follows:
(a) 98.00%
of
such remainder to the Holders of REMIC 1 Regular Interest LT1AA, until the
Uncertificated Principal Balance of such Uncertificated REMIC 1 Regular Interest
is reduced to zero;
(b) 2.00%
of
such remainder, first, to the Holders of REMIC 1 Regular Interest LT1A1, REMIC
1
Regular Interest LT1A2, REMIC 1 Regular Interest LT1A3, REMIC 1 Regular Interest
LT1M, REMIC 1 Regular Interest LT1B and REMIC 1 Regular Interest LT1P, 1.00%
of
such remainder, in the same proportion as principal payments are allocated
to
the Corresponding Certificates, until the Uncertificated Principal Balances
of
such REMIC 1 Regular Interests are reduced to zero; and second, to the Holders
of REMIC 1 Regular Interest LT1ZZ, 1.00% of such remainder, until the
Uncertificated Principal Balance of such REMIC 1 Regular Interest is reduced
to
zero; then
(c) any
remaining amount to the Holders of the Class R Certificates (in respect of
the
Class R-1 Interest).
provided,
however, that (i) 98.00% and (ii) 2.00% of any principal payments that are
attributable to an Excess Overcollateralization Amount shall be allocated to
Holders of REMIC 1 Regular Interest LT1AA and REMIC 1 Regular Interest LTZZ,
respectively.
If
the
Trustee becomes aware that interest and principal collections that it receives
in respect of the Mortgage Loans are not flowing from (a) REMIC 1 to REMIC
2 and
(b) from REMIC 2 to each Class of Certificates, then the Trustee shall notify
the Servicer and cooperate in consulting with the Servicer’s tax counsel. The
advice or any opinion of said counsel shall be full and complete authorization
and protection to the Trustee in respect of any action taken or omitted by
it
hereunder in good faith and in accordance with such advice or opinion of
counsel. All parties hereby agree to resolve such issues within 30 days of
notice thereof. Furthermore, to the extent any provisions of this document
are
inconsistent with (a) above, such provisions will be amended in accordance
with
Section 11.01 of this Agreement. Notwithstanding anything herein to the
contrary, the Trustee shall incur no liability for any payments made in
accordance with the provisions of this Agreement.
Notwithstanding
the distributions described in this Section 4.04, distribution of funds shall
be
made so that the Uncertificated Principal Balance of each of REMIC 1 Regular
Interest LT1A1, REMIC 1 Regular Interest LT1A2, REMIC 1 Regular Interest LT1A3,
REMIC 1 Regular Interest LT1M and REMIC 1 Regular Interest LT1B remains equal
to
1% of the Certificate Principal Balance of the related Corresponding Certificate
and for REMIC 1 Regular Interest LT1ZZ to equal the sum of (i) 1% of the
Mortgage Pool and (ii) 1% of the Overcollateralized Amount for such Distribution
Date.
Section
4.05. Allocation
of Realized Losses.
For
each
Distribution Date, the Servicer shall calculate the amount of Realized Losses
on
the Mortgage Loans that occurred during the preceding Prepayment Period, and
shall include such calculation in its Remittance Report.
If
on any
Distribution Date, the aggregate Certificate Principal Balance of the Class
A
Certificates and the Subordinated Certificates, determined after all
distributions pursuant to Section 4.01 have been made, exceed the aggregate
Stated Principal Balance of all of the Mortgage Loans as of such Distribution
Date after all distributions pursuant to Section 4.01 have been made, such
excess shall be allocated by the Trustee as follows: first, to the Class B
Certificates, until the Certificate Principal Balance thereof has been reduced
to zero; and second, to the Class M Certificates, until the Certificate
Principal Balance thereof has been reduced to zero. All Realized Losses to
be so
allocated to the Certificate Principal Balance of any such Class on any
Distribution Date shall be so allocated after the actual distributions to be
made on such date as provided herein. No allocations of any Realized Losses
shall be made to the Certificate Principal Balance of the Class A Certificates.
All references in Section 4.01 to the Certificate Principal Balance of any
Class
of Certificates, unless otherwise stated, shall be to the Certificate Principal
Balance of such Class immediately prior to the relevant Distribution Date,
before reduction thereof by any Realized Losses as provided in this Section
4.05, in each case to be allocated to such Class of Certificates, on such
Distribution Date.
Any
allocation of Realized Losses to a Subordinated Certificate on any Distribution
Date shall be made by reducing the Certificate Principal Balance thereof by
the
amount so allocated.
All
Realized Losses on the Mortgage Loans shall be allocated by the Trustee on
each
Distribution Date, in the specified percentages, as follows: first, to
Uncertificated Accrued Interest payable to the REMIC 1 Regular Interest LT1AA
and REMIC 1 Regular Interest LT1ZZ up to an aggregate amount equal to the REMIC
1 Interest Loss Allocation Amount, 98% and 2%, respectively; second, to the
Uncertificated Principal Balances of REMIC 1 Regular Interest LT1AA and REMIC
1
Regular Interest LT1ZZ up to an aggregate amount equal to the REMIC 1 Principal
Loss Allocation Amount, 98% and 2%, respectively; third, to the Uncertificated
Principal Balances of REMIC 1 Regular Interest LT1AA, REMIC 1 Regular Interest
LT1B and REMIC 1 Regular Interest LT1ZZ, 98%, 1% and 1%, respectively, until
the
Uncertificated Principal Balance of REMIC 1 Regular Interest LT1B has been
reduced to zero; and fourth, to the Uncertificated Principal Balances of REMIC
1
Regular Interest LT1AA, REMIC 1 Regular Interest LT1M and REMIC 1 Regular
Interest LT1ZZ, 98%, 1% and 1%, respectively, until the Uncertificated Principal
Balance of REMIC 1 Regular Interest LT1M has been reduced to zero.
All
Realized Losses on the Mortgage Loans shall be allocated by the Trustee on
each
Distribution Date among the REMIC 1 Regular Interests in the same manner and
priority as such amounts are allocated with respect to the Corresponding
Certificates.
Section
4.06. The
Policy.
(a) If
the
Trustee determines that a Deficiency Amount to be covered by the Policy will
exist for the related Distribution Date, the Trustee shall complete the notice
in the form of Exhibit A to the Policy (the “Notice”) and submit such Notice in
accordance with the Policy to the Certificate Insurer no later than 12:00 P.M.,
New York City time, on the second Business Day immediately preceding such
Distribution Date, as a claim for the amount of such Insured
Amount.
(b) The
Trustee shall establish and maintain the Insurance Account on behalf of the
Holders of the Insured Certificates over which the Trustee shall have the
exclusive control and sole right of withdrawal. Upon receipt of an Insured
Amount from the Certificate Insurer on behalf of the Holders of the Insured
Certificates, the Trustee shall deposit such Insured Amount in the Insurance
Account and distribute such amount only for purposes of payment to the Insured
Certificates of the Insured Amount for which a claim was made and such amount
may not be applied to satisfy any costs, expenses or liabilities of the
Servicer, the Seller, the Depositor, the Trustee or the Trust Fund or to pay
any
other Class of Certificates. Amounts paid under the Policy, to the extent needed
to pay the Insured Amount, shall be transferred to the Distribution Account
on
the related Distribution Date and disbursed by the Trustee to the holders of
the
Insured Certificates in accordance with Section 4.01. It shall not be necessary
for such payments to be made by checks or wire transfers separate from the
checks or wire transfers used to pay other distributions to the holders of
the
Insured Certificates with other funds available to make such payment. However,
the amount of any payment of principal or of interest on the Insured
Certificates to be paid from funds transferred from the Insurance Account shall
be noted as provided in paragraph (d) below and in the statement to be furnished
to holders of the Insured Certificates pursuant to Section 4.02. Funds held
in
the Insurance Account shall not be invested. Any funds remaining in the
Insurance Account on the first Business Day following the later of (i) the
related Distribution Date or (ii) the date received by the Trustee, shall be
returned to the Certificate Insurer pursuant to the written instructions of
the
Certificate Insurer by the end of such Business Day.
(c) The
Trustee shall keep a complete and accurate record of the amount of interest
and
principal paid in respect of any Insured Certificate from moneys received under
the Policy. The Certificate Insurer shall have the right to inspect such records
at reasonable times during normal business hours upon one Business Day’s prior
notice to the Trustee.
(d) In
the
event that the Trustee has received a certified copy of an order of the
appropriate court that any Insured Amount has been voided in whole or in part
as
a preference payment under applicable bankruptcy law, the Trustee shall so
notify the Certificate Insurer, shall comply with the provisions of the Policy
to obtain payment by the Certificate Insurer of such Preference Amount in the
amount of such voided Insured Amount, and shall, at the time it provides notice
to the Certificate Insurer, notify, by mail the holders of the affected Insured
Certificates that, in the event any holder’s Insured Amount is so recovered,
such holder of an Insured Certificate will be entitled to payment pursuant
to
the Policy, a copy of which shall be made available through the Trustee or
the
Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer,
its records evidencing the payments which have been made by the Trustee and
subsequently recovered from the holders of the Insured Certificates, and dates
on which such payments were made.
(e) The
Trustee shall promptly notify the Certificate Insurer of any proceeding or
the
institution of any action, of which a Responsible Officer of the Trustee has
actual knowledge, seeking the avoidance as a preferential transfer under
applicable bankruptcy, insolvency, receivership or similar law (a “Preference
Claim”)
of any
distribution made with respect to the Insured Certificates. Each holder of
an
Insured Certificate, by its purchase of such Insured Certificate, the Servicer,
the Depositor and the Trustee agree that the Certificate Insurer (so long as
no
Certificate Insurer Default exists) may at any time during the continuation
of
any proceeding relating to a Preference Claim direct all matters relating to
such Preference Claim, including, without limitation, (i) the direction of
any
appeal of any order relating to such Preference Claim and (ii) the posting
of
any surety or performance bond pending any such appeal. In addition and without
limitation of the foregoing, the Certificate Insurer shall be subrogated to,
and
each holder of an Insured Certificate and the Trustee hereby delegates and
assigns to the Certificate Insurer, to the fullest extent permitted by law,
the
rights of the Trustee and each holder of an Insured Certificate in the conduct
of any such Preference Claim, including, without limitation, all rights of
any
party to any adversary proceeding or action with respect to any court order
issued in connection with any such Preference Claim.
(f) The
Trustee shall, upon retirement of the Insured Certificates, furnish to the
Certificate Insurer a notice of such retirement, and, upon retirement of the
Insured Certificates and the expiration of the term of the Policy, surrender
the
Policy to the Certificate Insurer for cancellation.
(g) The
Trustee will hold the Policy in trust as agent for the holders of the Insured
Certificates for the purpose of making claims thereon and distributing the
proceeds thereof. Neither the Policy nor the amounts paid on the Policy will
constitute part of the Trust Fund created by this Agreement. Each Holder of
the
Insured Certificates, by accepting its Insured Certificates, appoints the
Trustee as attorney in fact for the purpose of making claims on the
Policy.
(h) Anything
herein to the contrary notwithstanding, any payment with respect to principal
of
or interest on the Insured Certificates which is made with moneys received
pursuant to the terms of the Policy shall not be considered payment of the
Insured Certificates from the Trust Fund. The Depositor, the Servicer and the
Trustee acknowledge, and each holder by its acceptance of an Insured Certificate
agrees, that without the need for any further action on the part of the
Certificate Insurer, the Depositor, the Servicer or the Trustee (a) to the
extent the Certificate Insurer makes payments, directly or indirectly, on
account of principal of or interest on the Insured Certificates to the holders
of such Insured Certificates, the Certificate Insurer will be fully subrogated
to, and each holder of an Insured Certificate, the Servicer and the Trustee
hereby delegate and assign to the Certificate Insurer, to the fullest extent
permitted by law, the rights of such holders to receive such principal and
interest from the Trust Fund, including, without limitation, any amounts due
to
the holders of the Insured Certificates in respect of securities law violations
arising from the offer and sale of the Insured Certificates, and (b) the
Certificate Insurer shall be paid such amounts from the sources and in the
manner provided herein for the payment of such amounts and as provided in this
Agreement. The Trustee and the Servicer shall cooperate in all respects with
any
reasonable request by the Certificate Insurer for action to preserve or enforce
the Certificate Insurer’s rights or interests under this Agreement without
limiting the rights or affecting the interests of the holders as otherwise
set
forth herein.
(i) By
accepting its Insured Certificate, each holder of an Insured Certificate agrees
that, unless a Certificate Insurer Default exists, the Certificate Insurer
shall
be deemed to be the holder of the Insured Certificate for all purposes (other
than with respect to the receipt of payment on the Insured Certificates) and
shall have the right to exercise all rights (including, without limitation,
voting rights) of the holders of the Insured Certificates under this Agreement
and under the Insured Certificates without any further consent of the holders
of
the Insured Certificates. All notices, statement reports, certificates or
opinions required by this Agreement to be sent to any holders of Insured
Certificates shall also be sent to the Certificate Insurer.
ARTICLE
V
THE
CERTIFICATES
Section
5.01. The
Certificates.
Each
of
the Class A Certificates, the Subordinated Certificates, the Class C
Certificates and the Class R Certificates shall be substantially in the forms
annexed hereto as exhibits, and shall, on original issue, be executed,
authenticated and delivered by the Trustee to or upon the order of the Depositor
concurrently with the sale and assignment to the Trustee of the Trust Fund.
The
Class A Certificates and the Subordinated Certificates shall be initially
evidenced by one or more Certificates representing a Percentage Interest with
a
minimum dollar denomination of $100,000 initial Certificate Principal Balance
and integral dollar multiples of $1,000.00 in excess thereof, except that one
Certificate of each such Class of Certificates may be in a different
denomination so that the sum of the denominations of all outstanding
Certificates of such Class shall equal the Certificate Principal Balance of
such
Class on the Closing Date. The Class C Certificates and the Class R Certificates
are issuable in any Percentage Interests; provided, however, that the sum of
all
such percentages for each such Class totals 100% and no more than ten
Certificates of each such Class may be issued.
The
Certificates shall be executed on behalf of the Trust by manual or facsimile
signature on behalf of the Trustee by a Responsible Officer. Certificates
bearing the manual or facsimile signatures of individuals who were, at the
time
when such signatures were affixed, authorized to sign on behalf of the Trustee
shall bind the Trust, notwithstanding that such individuals or any of them
have
ceased to be so authorized prior to the authentication and delivery of 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 such Certificate shall have been manually authenticated
by the Trustee substantially in the form provided for herein, and such
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
Subject to Section 5.02(c), the Class A Certificates and the Subordinated
Certificates shall be Book-Entry Certificates. The other Classes of Certificates
shall not be Book-Entry Certificates.
Section
5.02. Registration
of Transfer and Exchange of Certificates.
(a) The
Certificate Registrar shall cause to be kept at the Corporate Trust Office
a
Certificate Register in which, subject to such reasonable regulations as it
may
prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
The Trustee shall initially serve as Certificate Registrar for the purpose
of
registering Certificates and transfers and exchanges of Certificates as herein
provided.
Upon
surrender for registration of transfer of any Certificate at the Trustee’s
offices located at 000 Xxxxxxxxx Xxxx Xxxx, Xxxxxxxxx, Xxxxxxxxx 00000,
Attention: Transfer Department, at the offices of the Trustee’s agent located at
DB Services Tennessee, 000 Xxxxxxxxx Xxxx Xxxx, Xxxxxxxxx, Xxxxxxxxx 00000-0000
or at such other office designated by the Trustee for such purposes and, in
the
case of a Class R Certificate, upon satisfaction of the conditions set forth
below, the Trustee on behalf of the Trust shall execute, authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Certificates of the same aggregate Percentage Interest.
At
the
option of the Certificateholders, Certificates may be exchanged for other
Certificates in authorized denominations and the same aggregate Percentage
Interests, upon surrender of the Certificates to be exchanged at any such office
or agency. Whenever any Certificates are so surrendered for exchange, the
Trustee on behalf of the Trust shall execute on behalf of the Trust and
authenticate and deliver the Certificates which the Certificateholder making
the
exchange is entitled to receive. Every Certificate presented or surrendered
for
registration of transfer or exchange shall (if so required by the Trustee or
the
Certificate Registrar) be duly endorsed by, or be accompanied by a written
instrument of transfer satisfactory to the Trustee and the Certificate Registrar
duly executed by, the Holder thereof or his attorney duly authorized in writing.
In addition, with respect to each Class R Certificate, the holder thereof may
exchange, in the manner described above, such Class R Certificate for two
separate certificates, each representing such holder’s respective Percentage
Interest in the Class R-1 Interest and the Class R-2 Interest, respectively,
in
each case that was evidenced by the Class R Certificate being
exchanged.
(b) Except
as
provided in paragraph (c) 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 such 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 Certificates; (iii) ownership and transfers of registration
of
such 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 for all purposes deal with the Depository as representative
of
the Certificate Owners of the Certificates for purposes of exercising the rights
of Holders under this Agreement, and requests and directions for and votes
of
such representative shall not be deemed to be inconsistent if they are made
with
respect to different Certificate Owners; (vi) the Trustee may conclusively
rely
and shall be fully protected in relying upon information furnished by the
Depository with respect to its Depository Participants and furnished by the
Depository Participants with respect to indirect participating firms and Persons
shown on the books of such indirect participating firms as direct or indirect
Certificate Owners; and (vii) the direct participants of the Depository shall
have no rights under this Agreement under or with respect to any of the
Certificates held on their behalf by the Depository, and the Depository may
be
treated by the Trustee and its agents, employees, officers and directors as
the
absolute owner of the Certificates for all purposes whatsoever.
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 such Certificate Owners. Each Depository Participant
shall only transfer Book-Entry Certificates of Certificate Owners that it
represents or of brokerage firms for which it acts as agent in accordance with
the Depository’s normal procedures. The parties hereto are hereby authorized to
execute a Letter of Representations with the Depository or take such other
action as may be necessary or desirable to register a Book-Entry Certificate
to
the Depository. In the event of any conflict between the terms of any such
Letter of Representation and this Agreement, the terms of this Agreement shall
control.
(c) If
(i)(x)
the Depository or the Depositor advises the Trustee in writing that the
Depository is no longer willing or able to discharge properly its
responsibilities as Depository and (y) the Trustee or the Depositor is unable
to
locate a qualified successor or (ii) after the occurrence of a Servicer Event
of
Termination, the Certificate Owners of the Book-Entry Certificates representing
Percentage Interests of such Classes aggregating not less than 51% advise the
Trustee and Depository through the applicable financial intermediaries and
the
Depository Participants in writing that the continuation of a book-entry system
through the Depository to the exclusion of definitive, fully registered
certificates (the “Definitive Certificates”) to Certificate Owners is no longer
in the best interests of the Certificate Owners. Upon surrender to the
Certificate Registrar of the Book-Entry Certificates by the Depository,
accompanied by registration instructions from the Depository for registration,
the Trustee shall, at the Servicer’s expense, execute on behalf of the Trust and
authenticate the Definitive Certificates. Neither the Depositor nor the Trustee
shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be fully protected in relying on, such
instructions. Upon the issuance of Definitive Certificates, the Trustee, the
Certificate Registrar, the Servicer, any Paying Agent and the Depositor shall
recognize the Holders of the Definitive Certificates as Certificateholders
hereunder.
(d) No
transfer, sale, pledge or other disposition of any Private Certificate or any
Ownership Interest therein shall be made unless such disposition is exempt
from
the registration requirements of the 1933 Act, and any applicable state
securities laws or is made in accordance with the 1933 Act and such state
securities laws.
In
the
event of any such transfer of any Ownership Interest in any Private Certificate
that is a Definitive Certificate, except with respect to the initial transfer
of
any Private Certificate by the Depositor (i) unless such transfer is made in
reliance upon Rule 144A under the 1933 Act (as evidenced by the investment
letter delivered to the Trustee, in substantially the form of the Form of Rule
144A Investment Letter included as part of Exhibit J hereto), the Trustee and
the Depositor shall require a written Opinion of Counsel (which may be in-house
counsel) acceptable to and in form and substance reasonably satisfactory to
the
Trustee and the Depositor 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 not be an expense of the Trustee or the Depositor or (ii) the Trustee
shall require the transferor to execute a transferor certificate (in
substantially the form attached hereto as Exhibit L) and the transferee to
execute an investment letter (in substantially the form attached hereto as
Exhibit J) acceptable to and in form and substance reasonably satisfactory
to
the Depositor and the Trustee certifying to the Depositor and the Trustee the
facts surrounding such transfer, which transferor certificate and investment
letter shall not be an expense of the Trustee or the Depositor. The Holder
of
such Private Certificate 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.
In
the
event of any such transfer of any Ownership Interest in any Private Certificate
that is a Book-Entry Certificate, except with respect to the initial transfer
of
any such Certificate by the Depositor, such transfer shall be required to be
made in reliance upon Rule 144A under the 1933 Act, and the transferor will
be
deemed to have made each of the representations and warranties set forth on
Exhibit L hereto in respect of such interest as if it was evidenced by such
Private Certificate and the transferee will be deemed to have made each of
the
representations and warranties set forth in the Form of Rule 144A Investment
Letter included as part of Exhibit J hereto in respect of such interest as
if it
was evidenced by a Definitive Certificate. The Certificate Owner of any such
Ownership Interest in any such Private Certificate 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 any Certificate or any interest therein shall be made to any Plan
subject to ERISA or Section 4975 of the Code, any Person acting, directly or
indirectly, on behalf of any such Plan or any Person acquiring such Certificates
with “Plan Assets” of a Plan within the meaning of the Department of Labor
regulation promulgated at 29 C.F.R. § 2510.3-101 (“Plan Assets”), as certified
by such transferee in the form of Exhibit I, unless the Trustee is provided
with
an Opinion of Counsel on which the Depositor, the Trustee, the Certificate
Insurer and the Servicer may rely, which is satisfactory to the Trustee, that
the purchase of such Certificates is permissible under applicable law, will
not
constitute or result in any prohibited transaction under ERISA or Section 4975
of the Code and will not subject the Depositor, the Servicer, the Trustee,
the
Certificate Insurer or the Trust Fund to any obligation or liability (including
obligations or liabilities under ERISA or Section 4975 of the Code) in addition
to those undertaken in this Agreement, which Opinion of Counsel shall not be
an
expense of the Depositor, the Servicer, the Trustee, the Certificate Insurer
or
the Trust Fund. Neither a certification nor an Opinion of Counsel will be
required in connection with the initial transfer of any such Certificate by
the
Depositor to an affiliate of the Depositor (in which case, the Depositor or
any
affiliate thereof shall have deemed to have represented that such affiliate
is
not a Plan or a Person investing Plan Assets) and the Trustee shall be entitled
to conclusively rely upon a written representation from the Depositor of the
status of such transferee as an affiliate of the Depositor.
In
the
event of any such transfer of any Ownership Interest in any Book-Entry
Certificate, except with respect to the initial transfer of any such Certificate
by the Depositor, the transferee will be deemed to have made each of the
representations and warranties set forth on Exhibit I hereto.
If
any
Certificate subject to the restrictions set forth in the preceding paragraph
or
any interest therein is acquired or held in violation of the provisions of
the
preceding paragraph, the next preceding permitted beneficial owner will be
treated as the beneficial owner of that Certificate retroactive to the date
of
transfer to the purported beneficial owner. Any purported beneficial owner
whose
acquisition or holding of any such Certificate or interest therein was effected
in violation of the provisions of the preceding paragraph shall indemnify and
hold harmless the Depositor, the Servicer, the Trustee and the Trust Fund from
and against any and all liabilities, claims, costs or expenses incurred by
those
parties as a result of that acquisition or holding.
Each
Person who has or who acquires any Ownership Interest in a Class R Certificate
shall be deemed by the acceptance or acquisition of such Ownership Interest
to
have agreed to be bound by the following provisions and to have irrevocably
appointed the Depositor or its designee as its attorney-in-fact to negotiate
the
terms of any mandatory sale under clause (v) below and to execute all
instruments of transfer and to do all other things necessary in connection
with
any such sale, and the rights of each Person acquiring any Ownership Interest
in
a Class R Certificate are expressly subject to the following
provisions:
(i) Each
Person holding or acquiring any Ownership Interest in a Class R Certificate
shall be a Permitted Transferee and shall promptly notify the Trustee of any
change or impending change in its status as a Permitted Transferee.
(ii) No
Person
shall acquire an Ownership Interest in a Class R Certificate unless such
Ownership Interest is a pro
rata
undivided interest.
(iii) In
connection with any proposed transfer of any Ownership Interest in a Class
R
Certificate, the Trustee shall as a condition to registration of the transfer,
require delivery to it, in form and substance satisfactory to it, of each of
the
following:
(x) an
affidavit in the form of Exhibit M hereto from the proposed transferee to the
effect that such transferee is a Permitted Transferee and that it is not
acquiring its Ownership Interest in the Class R Certificate that is the subject
of the proposed transfer as a nominee, trustee or agent for any Person who
is
not a Permitted Transferee; and
(y) a
covenant of the proposed transferee to the effect that the proposed transferee
agrees to be bound by and to abide by the transfer restrictions applicable
to
the Class R Certificates.
(iv) Any
attempted or purported transfer of any Ownership Interest in a Class R
Certificate in violation of the provisions of this Section shall be absolutely
null and void and shall vest no rights in the purported transferee. If any
purported transferee shall, in violation of the provisions of this Section,
become a Holder of a Class R Certificate, then the prior Holder of such Class
R
Certificate that is a Permitted Transferee shall, upon discovery that the
registration of transfer of such Class R Certificate was not in fact permitted
by this Section, be restored to all rights as Holder thereof retroactive to
the
date of registration of transfer of such Class R Certificate. The Trustee shall
be under no liability to any Person for any registration of transfer of a Class
R Certificate that is in fact not permitted by this Section or for making any
distributions due on such Class R 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 Trustee received the documents specified in clause
(iii). The Trustee shall be entitled to recover from any Holder of a Class
R
Certificate that was in fact not a Permitted Transferee at the time such
distributions were made all distributions made on such Class R Certificate.
Any
such distributions so recovered by the Trustee shall be distributed and
delivered by the Trustee to the prior Holder of such Class R Certificate that
is
a Permitted Transferee.
(v) If
any
Person other than a Permitted Transferee acquires any Ownership Interest in
a
Class R Certificate in violation of the restrictions in this Section, then
the
Trustee shall have the right but not the obligation, without notice to the
Holder of such Class R Certificate or any other Person having an Ownership
Interest therein, to notify the Depositor to arrange for the sale of such Class
R Certificate. The proceeds of such sale, net of commissions (which may include
commissions payable to the Depositor or its affiliates in connection with such
sale), expenses and taxes due, if any, will be remitted by the Trustee to the
previous Holder of such Class R Certificate that is a Permitted Transferee,
except that in the event that the Trustee determines that the Holder of such
Class R Certificate may be liable for any amount due under this Section or
any
other provisions of this Agreement, the Trustee may withhold a corresponding
amount from such remittance as security for such claim.
(vi) If
any
Person other than a Permitted Transferee acquires any Ownership Interest in
a
Class R Certificate in violation of the restrictions in this Section, then
the
Trustee upon receipt of reasonable compensation will provide to the Internal
Revenue Service, and to the persons specified in Sections 860E(e)(3) and (6)
of
the Code, information needed to compute the tax imposed under Section 860E(e)(5)
of the Code on transfers of residual interests to disqualified
organizations.
The
foregoing provisions of this Section which are applicable solely to the Class
R
Certificates shall cease to apply to transfers occurring on or after the date
on
which there shall have been delivered to the Trustee, in form and substance
satisfactory to the Trustee, (i) written notification from each Rating Agency
that the removal of the restrictions on Transfer which are applicable solely
to
the Class R Certificates set forth in this Section will not cause such Rating
Agency to downgrade its rating of the Certificates and (ii) an Opinion of
Counsel to the effect that such removal will not cause any REMIC created
hereunder to fail to qualify as a REMIC.
(e) No
service charge shall be made for any registration of transfer or exchange of
Certificates, but the Certificate Registrar may require 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. All Certificates
surrendered for registration of transfer or exchange shall be cancelled by
the
Certificate Registrar and disposed of pursuant to its standard
procedures.
Section
5.03. Mutilated,
Destroyed, Lost or Stolen Certificates.
If
(i)
any mutilated Certificate is surrendered to the Certificate Registrar or the
Certificate Registrar receives evidence to its satisfaction of the destruction,
loss or theft of any Certificate and (ii) there is delivered to the Trustee,
the
Depositor and the Certificate Registrar such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of notice
to the Trustee or the Certificate Registrar that such Certificate has been
acquired by a bona fide purchaser, the Trustee shall execute on behalf of the
Trust, authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
tenor and Percentage Interest. Upon the issuance of any new Certificate under
this Section, the Trustee or the Certificate Registrar 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 and the Certificate Registrar) in connection therewith.
Any duplicate Certificate issued pursuant to this Section, shall constitute
complete and indefeasible evidence of ownership in the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Certificate shall be found
at any time.
Section
5.04. Persons
Deemed Owners.
The
Servicer, the Depositor, the Trustee, the Certificate Registrar, any Paying
Agent and any agent of the Servicer, the Depositor, the Trustee, the Certificate
Registrar or any Paying Agent may treat the Person, including the Depository,
in
whose name any Certificate is registered as the owner of such Certificate for
the purpose of receiving distributions pursuant to Section 4.01 and for all
other purposes whatsoever, and none of the Servicer, the Trust, the Trustee
nor
any agent of any of them shall be affected by notice to the
contrary.
Section
5.05. Appointment
of Paying Agent.
(a) The
Paying Agent shall make distributions to Certificateholders from the
Distribution Account pursuant to Section 4.01 and shall report the amounts
of
such distributions to the Trustee. The duties of the Paying Agent may include
the obligation to distribute statements and provide information to
Certificateholders as required hereunder. The Paying Agent hereunder shall
at
all times be an entity duly incorporated and validly existing under the laws
of
the United States of America or any state thereof, authorized under such laws
to
exercise corporate trust powers and subject to supervision or examination by
federal or state authorities. The Paying Agent shall initially be the Trustee.
The Trustee may appoint a successor to act as Paying Agent, which appointment
shall be reasonably satisfactory to the Depositor.
(b) The
Trustee shall cause the Paying Agent (if other than the Trustee) to execute
and
deliver to the Trustee an instrument in which such Paying Agent shall agree
with
the Trustee that such Paying Agent shall hold all sums, if any, held by it
for
payment to the Certificateholders in trust for the benefit of the
Certificateholders and the Certificate Insurer entitled thereto until such
sums
shall be paid to such Certificateholders and shall agree that it shall comply
with all requirements of the Code regarding the withholding of payments in
respect of Federal income taxes due from Certificate Owners and otherwise comply
with the provisions of this Agreement applicable to it.
ARTICLE
VI
THE
SERVICER AND THE DEPOSITOR
Section
6.01. Liability
of the Servicer and the Depositor.
The
Servicer shall be liable in accordance herewith only to the extent of the
obligations specifically imposed upon and undertaken by the Servicer herein.
The
Depositor shall be liable in accordance herewith only to the extent of the
obligations specifically imposed upon and undertaken by the Depositor
herein.
Section
6.02. Merger
or Consolidation of, or Assumption of the Obligations of, the Servicer or the
Depositor.
Any
entity into which the Servicer or Depositor may be merged or consolidated,
or
any entity resulting from any merger, conversion or consolidation to which
the
Servicer or the Depositor shall be a party, or any corporation succeeding to
the
business of the Servicer or the Depositor, shall be the successor of the
Servicer or the Depositor, 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 Servicer shall satisfy all the requirements of Section 7.02 with
respect to the qualifications of a successor Servicer.
Section
6.03. Limitation
on Liability of the Servicer and Others.
Neither
the Servicer or the Depositor nor any of the directors or officers or employees
or agents of the Servicer or the Depositor shall be under any liability to
the
Trust or the Certificateholders for any action taken or for refraining from
the
taking of any action by the Servicer or the Depositor in good faith pursuant
to
this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Servicer, the Depositor or any such Person
against any liability which would otherwise be imposed by reason of its willful
misfeasance, bad faith or negligence in the performance of duties of the
Servicer or the Depositor, as the case may be, or by reason of its reckless
disregard of its obligations and duties of the Servicer or the Depositor, as
the
case may be, hereunder; provided, further, that this provision shall not be
construed to entitle the Servicer to indemnity in the event that amounts
advanced by the Servicer to retire any senior lien exceed Liquidation Proceeds
(in excess of related liquidation expenses) realized with respect to the related
Mortgage Loan. The Servicer and any director or officer or employee or agent
of
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 Servicer and the Depositor, and any director or officer or
employee or agent of the Servicer or the Depositor, shall be indemnified by
the
Trust and held harmless against any loss, liability or expense incurred in
connection with 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 by reason of its willful misfeasance, bad faith or negligence
in the performance of duties hereunder or by reason of its reckless disregard
of
obligations and duties hereunder. None of the Depositor, the Seller or the
Servicer shall be under any obligation to appear in, prosecute or defend any
legal action that is not incidental to its respective duties hereunder and
which
in its opinion may involve it in any expense or liability; provided, however,
that any of the Depositor, the Seller or the Servicer may in its discretion
undertake any such 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 or with respect to the Mortgage
Loans including, without limitation, any rights or causes of action arising
out
of the origination of the Mortgage Loans. In such event, unless the
Depositor, the Servicer or the Seller, as applicable, acts without the consent
of the Certificate Insurer (unless the Policy has been canceled upon the payment
in full of the Insured Certificates or a Certificate Insurer Default has
occurred and is continuing), 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. The Servicer’s right to
indemnity or reimbursement pursuant to this Section shall survive any
resignation or termination of the Servicer pursuant to Section 6.04 or 7.01
with
respect to any losses, expenses, costs or liabilities arising prior to such
resignation or termination (or arising from events that occurred prior to such
resignation or termination). This paragraph shall apply to the Servicer solely
in its capacity as Servicer hereunder and in no other capacities.
Section
6.04. Servicer
Not to Resign.
Subject
to the provisions of Section 7.01 and Section 7.02, the Servicer shall not
resign from the obligations and duties hereby imposed on it except (i) upon
determination that the performance of its obligations or duties hereunder are
no
longer permissible under applicable law or are in material conflict by reason
of
applicable law with any other activities carried on by it or its subsidiaries
or
Affiliates, the other activities of the Servicer so causing such a conflict
being of a type and nature carried on by the Servicer or its subsidiaries or
Affiliates at the date of this Agreement or (ii) upon satisfaction of the
following conditions: (a) the Servicer has proposed a successor Servicer to
the
Trustee and the Certificate Insurer in writing and such proposed successor
Servicer is reasonably acceptable to the Trustee and the Certificate Insurer;
and (b) each Rating Agency shall have delivered a letter to the Trustee prior
to
the appointment of the successor Servicer stating that the proposed appointment
of such successor Servicer as Servicer hereunder will not result in the
reduction or withdrawal of the then current rating of any of the Certificates
(without regard to the Policy); provided, however, that no such resignation
by
the Servicer shall become effective until such successor Servicer or the
Trustee, if it becomes successor Servicer, shall have assumed the Servicer’s
responsibilities and obligations hereunder or the Trustee shall have designated
a successor Servicer in accordance with Section 7.02. Any such resignation
shall
not relieve the Servicer of responsibility for any of the obligations specified
in Sections 7.01 and 7.02 as obligations that survive the resignation or
termination of the Servicer. Any such determination permitting the resignation
of the Servicer pursuant to clause (i) above shall be evidenced by an Opinion
of
Counsel to such effect delivered to the Trustee and the Certificate
Insurer.
Section
6.05. Delegation
of Duties.
In
the
ordinary course of business, the Servicer at any time may delegate any of its
duties hereunder to any Person, including any of its Affiliates, who agrees
to
conduct such duties in accordance with standards comparable to those set forth
in Section 3.01. Such delegation shall not relieve the Servicer of its
liabilities and responsibilities with respect to such duties and shall not
constitute a resignation within the meaning of Section 6.04. Except as provided
in Section 3.02, no such delegation is permitted that results in the delegate
subservicing any Mortgage Loans. The Servicer shall provide the Trustee with
60
days prior written notice prior to the delegation of any of its duties to any
Person other than any of the Servicer’s Affiliates or their respective
successors and assigns.
Section
6.06. Inspection.
The
Servicer, in its capacity as Seller and Servicer, shall afford the Trustee
and
the Certificate Insurer, upon reasonable advance notice, during normal business
hours, access to all records maintained by the Servicer in respect of its rights
and obligations hereunder and access to officers of the Servicer responsible
for
such obligations. Upon request, the Servicer shall furnish to the Trustee and/or
the Certificate Insurer, as applicable, its most recent publicly available
financial statements and such other information relating to its capacity to
perform its obligations under this Agreement.
ARTICLE
VII
DEFAULT
Section
7.01. Servicer
Events of Termination.
(a) If
any
one of the following events (“Servicer Events of Termination”) shall occur and
be continuing:
(i) (A)The
failure by the Servicer to make any Advance; or (B) any other failure by the
Servicer to deposit in the Certificate Account or Distribution Account any
deposit required to be made under the terms of this Agreement which continues
unremedied for a period of five (5) Business Days after the date upon which
written notice of such failure shall have been given to the Servicer by the
Trustee, or to the Servicer, the Certificate Insurer and the Trustee by the
Holders of Certificates evidencing at least 25% of the Voting Rights;
or
(ii) The
failure by the Servicer to make any required Servicing Advance which failure
continues unremedied for a period of 30 days, or the failure by the Servicer
duly to observe or perform, in any material respect, any other covenants,
obligations or agreements of the Servicer as set forth in this Agreement, which
failure continues unremedied for a period of 30 days, after the date (A) on
which written notice of such failure, requiring the same to be remedied, shall
have been given to the Servicer by the Trustee, or to the Servicer and the
Trustee by the Holders of Certificates evidencing at least 25% of the Voting
Rights or (B) actual knowledge of such failure by a Servicing Officer of the
Servicer; or
(iii) The
entry
against the Servicer of a decree or order by a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a trustee,
conservator, receiver or liquidator in any insolvency, conservatorship,
receivership, readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding up or liquidation of its affairs, and
the continuance of any such decree or order unstayed and in effect for a period
of 60 days; or
(iv) The
Servicer shall voluntarily go into liquidation, consent to the appointment
of a
conservator or receiver or liquidator or similar person in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings of or relating to the Servicer or of or relating to all or
substantially all of its property; or a decree or order of a court or agency
or
supervisory authority having jurisdiction in the premises for the appointment
of
a conservator, receiver, liquidator or similar person 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, unbonded or unstayed for a period of 60 days; or the
Servicer shall admit in writing its inability to pay its debts generally as
they
become due, file a petition to take advantage of any applicable insolvency
or
reorganization statute, make an assignment for the benefit of its creditors
or
voluntarily suspend payment of its obligations;
(b) then,
in
each and every such case, so long as a Servicer Event of Termination shall
not
have been remedied within the applicable grace period, or with respect solely
to
clause (i)(A) above, if such Advance is not made by 5:00 P.M., New York time,
on
the Business Day immediately following the Servicer Remittance Date (provided,
that the Trustee shall give the Servicer notice of such failure to advance
by
5:00 P.M. New York time on the Servicer Remittance Date), the Trustee may,
and
at the direction of the Holders of Certificates evidencing Percentage Interests
aggregating not less than 51%, by notice then given in writing to the Servicer,
the Certificate Insurer and to the Trustee or, if no Certificate Insurer Default
has occurred and is continuing, at the direction of the Certificate Insurer,
the
Trustee shall, terminate all of the rights and obligations of the Servicer
as
servicer under this Agreement but only upon consent of the Certificate Insurer
if no Certificate Insurer Default has occurred and is continuing. Any such
notice to the Servicer shall also be given to each Rating Agency, the
Certificate Insurer, the Depositor and the Seller. On or after the receipt
by
the Servicer (and by the Trustee if such notice is given by the Holders) of
such
written notice, all authority and power of the Servicer under this Agreement,
whether with respect to the Certificates or the Mortgage Loans or otherwise,
shall pass to and be vested in the Trustee (or if another successor Servicer
shall at such time have already been appointed in accordance with Section 7.02,
such successor Servicer) pursuant to and under this Section (subject to Section
7.02); and, without limitation, the Trustee (or such other successor Servicer
appointed in accordance with Section 7.02) is hereby authorized and empowered
to
execute and deliver, on behalf of the Servicer, as attorney-in-fact or
otherwise, any and all 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 of
each
Mortgage Loan and related documents or otherwise. The Servicer agrees to
cooperate with the Trustee (or such other successor Servicer appointed in
accordance with Section 7.02) in effecting the termination of the
responsibilities and rights of the Servicer hereunder, including, without
limitation, the delivery to the Trustee (or such other successor Servicer
appointed in accordance with Section 7.02) of all documents, funds, information
and records requested by it to enable it to assume the Servicer’s functions
under this Agreement within ten Business Days subsequent to such notice, the
transfer within one Business Day subsequent to such notice to the Trustee (or
such other successor Servicer appointed in accordance with Section 7.02) for
the
administration by it of all cash amounts that shall at the time be held by
the
Servicer and to be deposited by it in the Certificate Account, the Distribution
Account, any REO Account or any Servicing Account or that have been deposited
by
the Servicer in such accounts or thereafter received by the Servicer with
respect to the Mortgage Loans or any REO Property received by the Servicer.
All
reasonable costs and expenses (including attorneys’ fees) incurred in connection
with transferring the Mortgage Files to the successor Servicer and amending
this
Agreement to reflect such succession as Servicer pursuant to this Section shall
be paid by the predecessor Servicer (or if the predecessor Servicer is the
Trustee, the Servicer that immediately preceded the Trustee) upon presentation
of reasonable documentation of such costs and expenses and to the extent not
paid by such Servicer, by the Trust.
Section
7.02. Trustee
to Act; Appointment of Successor.
(a) On
and
after the time the Servicer (and the Trustee, if notice is sent by the Holders)
receives a notice of termination pursuant to Section 6.04 or Section 7.01,
the
Certificate Insurer shall have the right to appoint a successor Servicer and
if
the Certificate Insurer does not exercise such right, the Trustee shall be
the
successor in all respects 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 (except for any representations or warranties of the
Servicer under this Agreement, the responsibilities, duties and liabilities
contained in Section 2.03(c) and the obligation to deposit amounts in respect
of
losses pursuant to Section 3.12) by the terms and provisions hereof arising
on
and after its succession including, without limitation, the Servicer’s
obligations to make Advances pursuant to Section 4.03; provided, however, that
if the Trustee is prohibited by law or regulation from obligating itself to
make
advances regarding delinquent mortgage loans, then the Trustee shall not be
obligated to make Advances pursuant to Section 4.03; provided further, that
any
failure to perform such duties or responsibilities during the period following
the termination of the Servicer reasonably necessary for the Trustee as
successor to the Servicer hereunder to assume the duties and responsibilities
of
the Servicer or caused by the Servicer’s failure to provide information,
documents or funds (or any other items reasonably requested by the Trustee
in
order to succeed to the Servicer’s responsibilities, duties and liabilities
hereunder) required by Section 7.01 shall not be considered a default by the
Trustee as successor to the Servicer hereunder and shall not result in any
liability to the Trustee, and the Trustee, in its capacity as successor
Servicer, shall not be responsible for the lack of information and/or documents
that it cannot obtain through reasonable efforts. As compensation therefor,
the
Trustee (or such other successor Servicer as may be appointed as provided
herein) shall be entitled to such compensation as the Servicer would have been
entitled to hereunder if no such notice of termination had been given.
Notwithstanding the above, (i) if the Trustee is unwilling to act as successor
Servicer or (ii) if the Trustee is legally unable so to act, the Trustee shall
appoint or petition a court of competent jurisdiction to appoint, any
established housing and home finance institution, bank or other mortgage loan
or
home equity loan servicer having a net worth of not less than $50,000,000 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 and such
successor Servicer must be acceptable to the Certificate Insurer; provided,
that
the appointment of any such successor Servicer will not result in the
qualification, reduction or withdrawal of the ratings assigned to any of the
Certificates by the Rating Agencies as evidenced by a letter to such effect
from
each Rating Agency (without regard to the Policy). Pending appointment of a
successor to the Servicer hereunder, unless the Trustee is prohibited by law
from so acting, the Trustee shall act in such capacity as hereinabove provided.
In connection with such appointment and assumption, the successor shall be
entitled to receive compensation out of payments on Mortgage Loans in an amount
equal to the compensation which the Servicer would otherwise have received
pursuant to Section 3.18 (or such other compensation as the Trustee and such
successor shall agree, not to exceed the Servicing Fee). The appointment of
a
successor Servicer shall not affect any liability of the predecessor Servicer
which may have arisen under this Agreement prior to its termination as Servicer
to pay any deductible under an insurance policy pursuant to Section 3.14 or
to
indemnify the Trustee pursuant to Section 8.05, nor shall any successor Servicer
be liable for any acts or omissions of the predecessor Servicer or for any
breach by such Servicer of any of its representations or warranties contained
herein or in any related document or agreement. The Trustee and such successor
shall take such action, consistent with this Agreement, as shall be necessary
to
effectuate any such succession. All Servicing Transfer Costs shall be paid
by
the predecessor Servicer (or, if the predecessor Servicer is the Trustee, the
Servicer that preceded the Trustee) upon presentation of reasonable
documentation of such costs, and if such predecessor Servicer defaults in its
obligation to pay such costs, such costs shall be paid by the successor Servicer
or the Trustee (in which case the successor Servicer or the Trustee, as
applicable, shall be entitled to reimbursement therefor from the assets of
the
Trust Fund). If no Certificate Insurer Default has occurred and is continuing,
the Certificate Insurer shall have the right to consent to any successor
Servicer which the Trustee may propose to appoint.
(b) Any
successor to the Servicer, including the Trustee, shall during the term of
its
service as servicer continue to service and administer the Mortgage Loans for
the benefit of Certificateholders and the Certificate Insurer, and maintain
in
force a policy or policies of insurance covering errors and omissions in the
performance of its obligations as Servicer hereunder and a fidelity bond in
respect of its officers, employees and agents to the same extent as the Servicer
is so required pursuant to Section 3.14.
Section
7.03. Waiver
of Defaults.
The
Majority Certificateholders (excluding any Certificates held by the Seller,
the
Servicer or any Affiliate thereof) may, on behalf of all Certificateholders
and
the Certificate Insurer, waive any events permitting removal of the Servicer
as
servicer pursuant to this Article VII; provided, however, that the Majority
Certificateholders (excluding any Certificates held by the Servicer or any
Affiliate thereof) may not waive a default in making a required distribution
on
a Certificate without the consent of the Holder of such Certificate. Upon any
waiver of a past default, such default shall cease to exist and any Servicer
Event of Termination arising therefrom shall be deemed to have been remedied
for
every purpose of this Agreement. No such waiver shall extend to any subsequent
or other default or impair any right consequent thereto except to the extent
expressly so waived. Notice of any such waiver shall be given by the Trustee
to
the Rating Agencies.
Section
7.04. Notification
to Certificateholders.
(a) Upon
any
termination or appointment of a successor to the Servicer pursuant to Section
6.04 or this Article VII, the Trustee shall give prompt written notice thereof
to the Certificateholders and the Certificate Insurer at their respective
addresses appearing in the Certificate Register and to each Rating
Agency.
(b) No
later
than the later of (i) 60 days after the occurrence of any event which
constitutes or which, with notice or a lapse of time or both, would constitute
a
Servicer Event of Termination and (ii) five days after a Responsible Officer
of
the Trustee becomes aware of the occurrence of such an event, the Trustee shall
transmit by mail to all Certificateholders notice of such occurrence unless
such
default or Servicer Event of Termination shall have been waived or
cured.
Section
7.05. Survivability
of Servicer Liabilities.
Notwithstanding
anything herein to the contrary, upon termination of the Servicer hereunder,
any
liabilities of the Servicer which accrued prior to such termination shall
survive such termination.
ARTICLE
VIII
THE
TRUSTEE
Section
8.01. Duties
of Trustee.
The
Trustee, prior to the occurrence of a Servicer Event of Termination and after
the curing of all Servicer Events of Termination which may have occurred,
undertakes to perform such duties and only such duties as are specifically
set
forth in this Agreement. If a Servicer Event of Termination has occurred (which
has not been cured) of which a Responsible Officer of the Trustee has actual
knowledge, 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 his own affairs.
The
Trustee, upon receipt of all resolutions, certificates, statements, opinions,
reports, documents, orders or other instruments furnished to the Trustee which
are specifically required to be furnished pursuant to any provision of this
Agreement, shall examine them to determine whether they conform to the
requirements of this Agreement; provided, however, that the Trustee will not
be
responsible for the accuracy or content of any such resolutions, certificates,
statements, opinions, reports, documents or other instruments. If any such
instrument is found not to conform to the requirements of this Agreement in
a
material manner, the Trustee shall take such action as it deems appropriate
to
have the instrument corrected, and if the instrument is not corrected to the
Trustee’s satisfaction, the Trustee will provide notice thereof to the
Certificateholders.
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 misconduct; provided, however, that:
(i) prior
to
the occurrence of a Servicer Event of Termination, and after the curing of
all
such Servicer Events of Termination which may have occurred, 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
such duties and obligations as are specifically set forth in this Agreement,
no
implied covenants or obligations shall be read into this Agreement against
the
Trustee and, in the absence of bad faith on the part of the Trustee, 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;
(ii) the
Trustee shall not be personally liable for an error of judgment made in good
faith by a Responsible Officer of the Trustee, unless it shall be proved that
the Trustee was negligent in ascertaining or investigating the facts related
thereto;
(iii) the
Trustee shall not be personally liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with the
direction of the Majority Certificateholders relating to the time, method and
place of conducting any proceeding for any remedy available to the Trustee,
or
exercising or omitting to exercise any trust or power conferred upon the
Trustee, under this Agreement; and
(iv) the
Trustee shall not be charged with knowledge of any failure by the Servicer
to
comply with the obligations of the Servicer referred to in clauses (i) and
(ii)
of Section 7.01(a) unless a Responsible Officer of the Trustee at the Corporate
Trust Office obtains actual knowledge of such failure or the Trustee receives
written notice of such failure from the Servicer or the Majority
Certificateholders.
The
Trustee shall not be required to expend or risk its own funds or otherwise
incur
financial liability in the performance of any of its duties hereunder, or in
the
exercise of any of its rights or powers (other than expenses, disbursements
and
advances incurred or made by the Trustee, including the compensation and the
expenses and disbursements of its agents and counsel, in the ordinary course
of
the Trustee’s performance in accordance with the provisions of this Agreement),
if there is reasonable ground for believing that the repayment of such funds
or
adequate indemnity against such risk or liability is not reasonably assured
to
it, and none of the provisions contained in this Agreement shall in any event
require the Trustee to perform, or be responsible for the manner of performance
of, any of the obligations of the Servicer under this Agreement, except during
such time, if any, as the Trustee shall be the successor to, and be vested
with
the rights, duties, powers and privileges of, the Servicer in accordance with
the terms of this Agreement.
Section
8.02. Certain
Matters Affecting the Trustee.
Except
as
otherwise provided in Section 8.01:
(i) 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
reasonably believed by it to be genuine and to have been signed or presented
by
the proper party or parties, and the manner of obtaining consents and of
evidencing the authorization of the execution thereof by Certificateholders
shall be subject to such reasonable regulations as the Trustee may
prescribe;
(ii) the
Trustee may consult with counsel 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;
(iii) the
Trustee shall be under no obligation to exercise any of the 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 the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which may
be
incurred therein or thereby; nothing contained herein shall, however, relieve
the Trustee of the obligation, upon the occurrence of a Servicer Event of
Termination (which has not been cured or waived), to exercise such of the rights
and powers vested in it by this Agreement, and to 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;
(iv) the
Trustee shall not be personally 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;
(v) prior
to
the occurrence of a Servicer Event of Termination and after the curing of all
Servicer Events of Termination which may have occurred, 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 documents, unless
requested in writing to do so by the Majority Certificateholder (provided,
however, that no Certificates held by the Servicer, the Seller, the Depositor
or
any Affiliate thereof shall be given effect for the purpose of calculating
any
such aggregation of Voting Rights); provided, however, that if the payment
within a reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to the Trustee by the security
afforded to it by the terms of this Agreement, the Trustee may require
reasonable indemnity against such cost, expense or liability from such
Certificateholders as a condition to making such investigation. Nothing in
this
clause (v) shall derogate from the obligation of the Servicer to observe any
applicable law prohibiting disclosure of information regarding the
Mortgagors;
(vi) the
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys or a
custodian;
(vii) the
Trustee shall not be accountable, shall have no liability and makes no
representation as to any acts or omissions hereunder of the Servicer until
such
time as the Trustee may be required to act as Servicer pursuant to Section
7.02
and thereupon only for the acts or omissions of the Trustee as successor
Servicer;
(viii) the
right
of the Trustee to perform any discretionary act enumerated in this Agreement
shall not be construed as a duty, and the Trustee shall not be answerable for
its action or inaction other than its negligence or willful misconduct in the
performance of such act; and
(ix) the
Trustee shall not be personally liable for any loss resulting from the
investment of funds held in the Certificate Account or the Distribution Account
at the direction of the Servicer pursuant to Section 3.12.
In
order
to comply with its duties under the U.S. Patriot Act, the Trustee shall obtain
and verify certain information and documentation from the other parties hereto,
including, but not limited to, such parties’ name, address and other identifying
information.
In
order
to comply with laws, rules and regulations applicable to banking institutions,
including those relating to the funding of terrorist activities and money
laundering, 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
party’s complete name, address, tax identification number and such other
identifying information together with copies of such party’s constituting
documentation, securities disclosure documentation or such other identifying
documentation as may be available for such party.
Section
8.03. Trustee
Not Liable for Certificates or Mortgage Loans.
The
recitals contained herein and in the Certificates (other than the authentication
of the Trustee on the Certificates) shall be taken as the statements of the
Depositor, and the Trustee assumes no responsibility for the correctness of
the
same. The Trustee makes no representations as to the validity or sufficiency
of
this Agreement or of the Certificates (other than the signature and
authentication of the Trustee on the Certificates) or of any Mortgage Loan
or
related document. The Trustee shall not be accountable for the use or
application by the Servicer, or for the use or application of any funds paid
to
the Servicer in respect of the Mortgage Loans or deposited in or withdrawn
from
the Certificate Account by the Servicer. The Trustee shall at no time have
any
responsibility or liability for or with respect to the legality, validity and
enforceability of any Mortgage or any Mortgage Loan, or the perfection and
priority of any Mortgage or the maintenance of any such perfection and priority,
or for or with respect to the sufficiency of the Trust or its ability to
generate the payments to be distributed to Certificateholders under this
Agreement, including, without limitation: the existence, condition and ownership
of any Mortgaged Property; the validity of the assignment of any Mortgage Loan
to the Trustee or of any intervening assignment; the completeness of any
Mortgage Loan; the performance or enforcement of any Mortgage Loan (other than
if the Trustee shall assume the duties of the Servicer pursuant to Section
7.02
and in such case only to the extent of the Servicer’s obligations hereunder);
the compliance by the Depositor, the Seller, the Seller or the Servicer with
any
warranty or representation made under this Agreement or in any related document
or the accuracy of any such warranty or representation prior to the Trustee’s
receipt of notice or other discovery of any non-compliance therewith or any
breach thereof; any investment of moneys by or at the direction of the Servicer
or any loss resulting therefrom, it being understood that the Trustee shall
remain responsible for any Trust property that it may hold in its individual
capacity; the acts or omissions of any of the Servicer (other than if the
Trustee shall assume the duties of the Servicer pursuant to Section 7.02 and
in
such case only to the extent of the Servicer’s obligations hereunder), any
Sub-Servicer or any Mortgagor; any action of the Servicer (other than if the
Trustee shall assume the duties of the Servicer pursuant to Section 7.02 and
in
such case only to the extent of the Servicer’s obligations hereunder), or any
Sub-Servicer taken in the name of the Trustee; the failure of the Servicer
or
any Sub-Servicer to act or perform any duties required of it as agent of the
Trustee hereunder; or any action by the Trustee taken at the instruction of
the
Servicer (other than if the Trustee shall assume the duties of the Servicer
pursuant to Section 7.02 and in such case only to the extent of the Servicer’s
obligations hereunder); provided, however, that the foregoing shall not relieve
the Trustee of its obligation to perform its duties under this Agreement,
including, without limitation, the Trustee’s duty to review the Mortgage Files
pursuant to Section 2.01. The Trustee shall have no responsibility for filing
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 and in such case only to the extent of the Servicer’s obligations
hereunder).
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 Trustee
and
may transact any banking and trust business with the Seller, the Servicer,
the
Depositor or their Affiliates.
Section
8.05. Trustee
Fee and Expenses.
As
compensation for its activities under this Agreement, on each Distribution
Date
the Trustee may withdraw from the Distribution Account and pay to itself 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) (i)
resulting from any error in any tax or information return prepared by the
Servicer or (ii) incurred in connection with any claim or legal action relating
to:
(a) this
Agreement;
(b) the
Certificates; or
(c) the
performance of any of the Trustee’s duties under this Agreement, other than any
loss, liability or expense incurred because of willful misfeasance, bad faith
or
negligence in the performance of any of the Trustee’s duties hereunder or
incurred by reason of any action of the Trustee taken at the direction of the
Certificateholders under this Agreement.
This
indemnity shall survive the termination of this Agreement or the resignation
or
removal of the Trustee under this Agreement. Without limiting the foregoing,
except as otherwise agreed upon in writing by the Depositor and the Trustee,
and
except for any expense, disbursement, or advance arising from the Trustee’s
negligence, bad faith, or willful misconduct, the Servicer shall pay or
reimburse the Trustee, for all reasonable expenses, disbursements, and advances
incurred or made by the Trustee in accordance with this Agreement with respect
to:
(i) the
reasonable compensation, expenses, and disbursements of its counsel not
associated with the closing of the issuance of the Certificates;
(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; and
(iii) printing
and engraving expenses in connection with preparing any Definitive
Certificates.
Except
as
otherwise provided in this Agreement, the Trustee shall not be entitled to
payment or reimbursement for any routine ongoing expenses incurred by the
Trustee in the ordinary course of its duties as Trustee, Certificate Registrar
or Paying Agent under this Agreement or for any other expenses.
Section
8.06. Eligibility
Requirements for Trustee.
The
Trustee hereunder shall at all times be an entity duly organized and validly
existing under the laws of the United States of America or any state thereof,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000 and subject to supervision or
examination by federal or state authority and has a credit rating which would
not cause any Rating Agency to reduce its current rating of the Certificates.
If
such entity 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
entity shall be deemed to be its combined capital and surplus as set forth
in
its most recent report of condition so published. The principal office of the
Trustee (other than the initial Trustee) shall be in a state with respect to
which an Opinion of Counsel has been delivered to such Trustee at the time
such
Trustee is appointed Trustee to the effect that the Trust will not be a taxable
entity under the laws of such state. In case at any time the Trustee shall
cease
to be eligible in accordance with the provisions of this Section 8.06, the
Trustee shall resign immediately in the manner and with the effect specified
in
Section 8.07.
Section
8.07. Resignation
or Removal of Trustee.
The
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice thereof to the Depositor, the Servicer, the Certificate
Insurer and each Rating Agency. Upon receiving such notice of resignation,
the
Depositor shall promptly appoint a successor Trustee by written instrument,
in
duplicate, one copy of which instrument shall be delivered to the resigning
Trustee, the Certificate Insurer and one copy to the successor Trustee. If
no
successor Trustee shall have been so appointed and having accepted appointment
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment
of
a successor Trustee.
If
at any
time the Trustee shall cease to be eligible in accordance with the provisions
of
Section 8.06 and shall fail to resign after written request therefor by the
Depositor or if at any time the Trustee shall be legally unable to act, or
shall
be adjudged a 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, then the Depositor or the Servicer may remove
the
Trustee but only upon consent of the Certificate Insurer if no Certificate
Insurer default has occurred and is continuing. If the Depositor or the Servicer
removes the Trustee under the authority of the immediately preceding sentence,
the Depositor shall promptly appoint a successor Trustee by written instrument,
in duplicate, one copy of which instrument shall be delivered to the Trustee
so
removed and one copy to the successor Trustee. The Trustee that is the subject
of such removal shall deliver a copy of such instrument to the
Certificateholders, the Certificate Insurer and the Servicer. If no successor
Trustee shall have been so appointed and having accepted appointment within
30
days after the giving of such notice of resignation, then the Certificate
Insurer may appoint a successor Trustee.
The
Majority Certificateholders (excluding any Certificates held by the Seller,
the
Servicer or any Affiliate thereof) may at any time remove the Trustee by written
instrument or instruments delivered to the Servicer, the Depositor, the
Certificate Insurer and the Trustee but only upon consent of the Certificate
Insurer if no Certificate Insurer Default has occurred and is continuing; the
Depositor shall thereupon use its best efforts to appoint a successor Trustee
in
accordance with this Section. The Trustee that is the subject of such removal
shall deliver a copy of such instrument to the Certificateholders and the
Servicer.
Any
resignation or removal of the Trustee and appointment of a successor Trustee
pursuant to any of the provisions of this Section 8.07 shall not become
effective until 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, the Servicer, the Certificate Insurer
and to its predecessor Trustee 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 like effect as if
originally named as Trustee. 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 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 such acceptance such successor Trustee shall be eligible
under the provisions of Section 8.06 and the appointment of such successor
Trustee shall not result in a downgrading of any Class of the Certificates
by
either Rating Agency, as evidenced by a letter from each Rating
Agency.
Upon
acceptance of appointment by a successor Trustee as provided in this Section
8.08, the successor Trustee shall mail notice of the appointment of a successor
Trustee hereunder to all Holders of Certificates and the Certificate Insurer
at
their addresses as shown in the Certificate Register and to each Rating
Agency.
Notwithstanding
anything to the contrary contained herein, so long as no Certificate Insurer
Default exists, the appointment of any successor Trustee pursuant to any
provision of this Agreement will be subject to the prior written consent of
the
Certificate Insurer.
Section
8.09. Merger
or Consolidation of Trustee.
Any
entity into which the Trustee may be merged or converted or with which it may
be
consolidated, or any entity resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any entity succeeding
to
the business of the Trustee, shall be the successor of the Trustee hereunder,
provided such entity shall be eligible under the provisions of Section 8.06
and
8.08, 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.
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 or
any
Mortgaged Property may at the time be located, the Depositor 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, and to vest in such Person
or Persons, in such capacity and for the benefit of the Certificateholders
and
the Certificate Insurer, such title to the Trust, or any part thereof, 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
necessary or desirable. Any such co-trustee or separate trustee shall be subject
to the written approval of the Servicer. If the Servicer shall not have joined
in such appointment within 15 days after the receipt by it of a request so
to
do, or in the case a Servicer Event of Termination 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. The Servicer shall be responsible for
the
fees of any co-trustee or separate trustee appointed hereunder.
Every
separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and
conditions:
(i) all
rights, powers, duties and obligations conferred or imposed upon the Trustee
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
Trust 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;
(ii) no
trustee hereunder shall be held personally liable by reason of any act or
omission of any other trustee hereunder; and
(iii) the
Servicer and the Trustee, acting jointly, may at any time accept the resignation
of or remove any separate trustee or co-trustee except that following the
occurrence of a Servicer Event of Termination, the Trustee acting alone may
accept the resignation or remove any 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 then separate trustees and co-trustees, 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
Depositor and the Servicer.
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. Limitation
of Liability.
The
Certificates are executed by the Trustee, not in its individual capacity but
solely as Trustee of the Trust, 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 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.
Section
8.12. Trustee
May Enforce Claims Without Possession of Certificates.
All
rights of action and claims under this Agreement or the Certificates may be
prosecuted and enforced by the Trustee without the possession of any of the
Certificates or the production thereof in any proceeding relating thereto,
and
such proceeding instituted by the Trustee shall be brought in its own name
or in
its capacity as Trustee for the benefit of all Holders of such Certificates
and
the Certificate Insurer, subject to the provisions of this Agreement. Any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursement and advances of the Trustee, its agents
and
counsel, be for the ratable benefit of the Certificateholders in respect of
which such judgment has been recovered.
Section
8.13. Suits
for Enforcement.
In
case a
Servicer Event of Termination or other default by the Servicer or the Depositor
hereunder shall occur and be continuing, the Trustee, shall, at the direction
of
the Majority Certificateholders, or may, proceed to protect and enforce its
rights and the rights of the Certificateholders under this Agreement by a suit,
action or proceeding in equity or at law or otherwise, whether for the specific
performance of any covenant or agreement contained in this Agreement or in
aid
of the execution of any power granted in this Agreement or for the enforcement
of any other legal, equitable or other remedy, as the Trustee, being advised
by
counsel, and subject to the foregoing, shall deem most effectual to protect
and
enforce any of the rights of the Trustee and the
Certificateholders.
Section
8.14. Waiver
of Bond Requirement.
The
Trustee shall be relieved of, and each Certificateholder hereby waives, any
requirement of any jurisdiction in which the Trust, or any part thereof, may
be
located that the Trustee post a bond or other surety with any court, agency
or
body whatsoever.
Section
8.15. Waiver
of Inventory, Accounting and Appraisal Requirement.
The
Trustee shall be relieved of, and each Certificateholder hereby waives, any
requirement of any jurisdiction in which the Trust, or any part thereof, may
be
located that the Trustee file any inventory, accounting or appraisal of the
Trust with any court, agency or body at any time or in any manner
whatsoever.
Section
8.16. Reserved.
Section
8.17. Access
to Records of Trustee.
The
Trustee shall afford the Seller, the Depositor, the Servicer, the Certificate
Insurer and each Certificateholder or Certificate Owner, upon reasonable notice
during normal business hours, access to all records maintained by the Trustee
in
respect of its duties under this Agreement and access to officers of the Trustee
responsible for performing its duties. Upon request, the Trustee shall furnish
the Depositor, the Servicer, the Certificate Insurer and any requesting
Certificateholder or Certificate Owner with its most recent financial
statements. The Trustee shall cooperate fully with the Seller, the Servicer,
the
Depositor, the Certificate Insurer and the Certificateholder or Certificate
Owner for review and copying any books, documents or records requested with
respect to the Trustee’s duties under this Agreement at the expense of the
requesting party. The Seller, the Depositor, the Servicer and the
Certificateholder or Certificate Owner shall not have any responsibility or
liability for any action for failure to act by the Trustee and are not obligated
to supervise the performance of the Trustee under this Agreement or
otherwise.
ARTICLE
IX
REMIC
ADMINISTRATION
Section
9.01. REMIC
Administration.
(a) REMIC
elections as set forth in the Preliminary Statement shall be made by the Trustee
on Form 1066 or other appropriate federal tax or information return for the
taxable year ending on the last day of the calendar year in which the
Certificates are issued. The regular interests and residual interest in each
REMIC shall be as designated in the Preliminary Statement. For the purposes
of
the REMIC election in respect of REMIC 1, (i) the REMIC 1 Regular Interests
shall be designated as the Regular Interests in REMIC 1 and the Class R-1
Interest shall be designated as the Residual Interest in REMIC 1, and (ii)
the
Regular Certificates (exclusive of the right to receive payments from the Excess
Reserve Fund Account) shall be designated as the Regular Interests in REMIC
2
and the Class R-2 Interest shall be designated as the Residual Interest in
REMIC
2. The Trustee shall not permit the creation of any “interests” in any Trust
REMIC (within the meaning of Section 860G of the Code) other than the REMIC
1
Regular Interests, the Class R-1 Interest, the Class R-2 Interest, and the
interests represented by the Certificates.
(b) The
Closing Date is hereby designated as the “Startup Day” of each REMIC within the
meaning of section 860G(a)(9) of the Code.
(c) The
Trustee shall pay any and all tax related expenses (not including taxes) of
each
REMIC, including but not limited to any professional fees or expenses related
to
audits or any administrative or judicial proceedings with respect to each REMIC
that involve the Internal Revenue Service or state tax authorities, but only
to
the extent that (i) such expenses are ordinary or routine expenses, including
expenses of a routine audit but not expenses of litigation (except as described
in (ii)); or (ii) such expenses or liabilities (including taxes and penalties)
are attributable to the negligence or willful misconduct of the Trustee in
fulfilling its duties hereunder. The Trustee shall be entitled to reimbursement
of expenses to the extent provided in clause (i) above from the Distribution
Account.
(d) The
Trustee shall prepare, sign and file, all of the REMICs’ federal and state tax
and information returns as the direct representative of each REMIC created
hereunder. The expenses of preparing and filing such returns shall be borne
by
the Trustee.
(e) The
Holder of the Class R Certificate at any time holding the largest Percentage
Interest thereof shall be the “tax matters person” as defined in the REMIC
Provisions (the “Tax Matters Person”) with respect to each REMIC and shall act
as Tax Matters Person for each REMIC. The Trustee, as agent for the Tax Matters
Person, shall perform on behalf of each REMIC all reporting and other tax
compliance duties that are the responsibility of such REMIC under the Code,
the
REMIC Provisions, or other compliance guidance issued by the Internal Revenue
Service or any state or local taxing authority. Among its other duties, if
required by the Code, the REMIC Provisions, or other such guidance, the Trustee,
as agent for the Tax Matters Person, shall provide (i) to the Treasury or other
governmental authority such information as is necessary for the application
of
any tax relating to the transfer of a Class R Certificate to any disqualified
person or organization and (ii) to the Certificateholders such information
or
reports as are required by the Code or REMIC Provisions.
(f) The
Trustee, the Servicer and the Holders of Certificates shall take any action
or
cause the REMIC to take any action necessary to create or maintain the status
of
each REMIC as a REMIC under the REMIC Provisions and shall assist each other
as
necessary to create or maintain such status. Neither the Trustee, the Servicer
nor the Holder of any Class R Certificate shall knowingly take any action,
cause
any REMIC created hereunder to take any action or fail to take (or fail to
cause
to be taken) any action that, under the REMIC Provisions, if taken or not taken,
as the case may be, could (i) endanger the status of such REMIC as a REMIC
or
(ii) result in the imposition of a tax upon such REMIC (including but not
limited to the tax on prohibited transactions as defined in Code Section
860F(a)(2) and the tax on prohibited contributions set forth on Section 860G(d)
of the Code) (either such event, an “Adverse REMIC Event”) unless the Trustee,
the Certificate Insurer and the Servicer have received an Opinion of Counsel
(at
the expense of the party seeking to take such action but in no event at the
expense of the Trustee) to the effect that the contemplated action will not
endanger such status or result in the imposition of such a tax. In addition,
prior to taking any action with respect to any REMIC created hereunder or the
assets therein, or causing such REMIC to take any action, which is not expressly
permitted under the terms of this Agreement, any Holder of a Class R Certificate
will consult with the Servicer and the Certificate Insurer, or its respective
designees, in writing, with respect to whether such action could cause an
Adverse REMIC Event to occur with respect to any REMIC, and no such Person
shall
take any such action or cause any REMIC to take any such action as to which
the
Servicer or the Certificate Insurer has advised it in writing that an Adverse
REMIC Event could occur.
(g) Each
Holder of a Class R Certificate shall pay when due any and all taxes imposed
on
each REMIC created hereunder by federal, state or local governmental
authorities. To the extent that such Trust taxes are not paid by a Class R
Certificateholder, the Trustee shall pay any remaining REMIC taxes out of
current or future amounts otherwise distributable to the Holder of the Class
R
Certificate in the REMICs or, if no such amounts are available, out of other
amounts held in the Distribution Account, and shall reduce amounts otherwise
payable to Holders of regular interests in the related REMIC. If any tax is
imposed on “prohibited transactions” (as defined in Section 860F(a)(2) of the
Code) of any REMIC created hereunder, on the “net income form foreclosure
property” of any REMIC created hereunder as defined in Section 860G(c) of the
Code, on any contribution to any REMIC created hereunder after the Startup
Day
pursuant to Section 860G(d) of the Code, or any other tax is imposed, including
any minimum tax imposed on any REMIC created hereunder pursuant to Sections
23153 and 24874 of the California Revenue and Taxation Code, if not paid as
otherwise provided for herein, the tax shall be paid by (i) the Trustee, if
any
such other tax arises out of or results from negligence of the Trustee in the
performance of 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
2.03, 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 3.11(b).
(h) The
Trustee, as agent for the Tax Matters Person, shall, for federal income tax
purposes, maintain books and records with respect to each REMIC created
hereunder on a calendar year and on an accrual basis.
(i) No
additional contributions of assets shall be made to any REMIC created hereunder,
except as expressly provided in this Agreement with respect to eligible
substitute mortgage loans.
(j) Neither
the Trustee nor the Servicer shall enter into any arrangement by which any
REMIC
created hereunder will receive a fee or other compensation for
services.
(k) On
or
before April 15th
of each
calendar year beginning in 2006, the Servicer shall deliver to the Trustee
and
each Rating Agency an Officers’ Certificate stating the Servicer’s compliance
with the provisions of this Section 9.01.
(l) The
Trustee will apply for an Employee Identification Number from the Internal
Revenue Service via a Form SS-4 or other acceptable method for all tax entities
and shall complete and timely file the Form 8811.
Section
9.02. Prohibited
Transactions and Activities.
None
of
the Depositor, the Servicer or the Trustee shall sell, dispose of, or substitute
for any of the Mortgage Loans, except in a disposition pursuant to (i) the
foreclosure of a Mortgage Loan, (ii) the bankruptcy of the Trust Fund, (iii)
the
termination of any REMIC created hereunder pursuant to Article X of this
Agreement, (iv) a substitution pursuant to Article II or Section 3.10 of this
Agreement or (v) a repurchase of Mortgage Loans pursuant to Article II of this
Agreement, or acquire any assets for any REMIC, sell or dispose of any
investments in the Distribution Account, or accept any contributions to either
REMIC after the Closing Date, unless it has received an Opinion of Counsel
(at
the expense of the party causing such sale, disposition, acquisition,
substitution or acceptance) acceptable to the Certificate Insurer that such
sale, disposition, acquisition, substitution or acceptance will not (a) affect
adversely the status of any REMIC created hereunder as a REMIC or of the
interests therein other than the Class R Certificates as the regular interests
therein, (b) affect the distribution of interest or principal on the
Certificates, (c) result in the encumbrance of the assets transferred or
assigned to the Trust Fund (except pursuant to the provisions of this
Agreement), (d) cause any REMIC created hereunder to be subject to a tax on
prohibited transactions or prohibited contributions pursuant to the REMIC
Provisions or (e) disqualify the Trust from being a qualifying special purpose
entity under generally accepted accounting principles.
Section
9.03. Indemnification
with respect to Certain Taxes and Loss of REMIC Status.
(a) In
the
event that any REMIC created hereunder fails to qualify as a REMIC, loses its
status as a REMIC, or incurs federal, state or local taxes as a result of a
prohibited transaction or prohibited contribution under the REMIC Provisions
due
to the negligent performance by the Servicer of its duties and obligations
set
forth herein or due to the location of the Servicer, the Servicer shall
indemnify the Trustee and the Holder of the related Class R Certificate against
any and all losses, claims, damages, liabilities or expenses (“Losses”)
resulting from such negligence; provided, however, that the Servicer shall
not
be liable for any such Losses attributable to the action or inaction of the
Trustee, the Depositor or the Holder of such Class R Certificate, as applicable,
or for any such Losses resulting from misinformation provided by the Holder
of
such Class R Certificate on which the Servicer has relied. The foregoing shall
not be deemed to limit or restrict the rights and remedies of the Holder of
such
Class R Certificate now or hereafter existing at law or in equity.
Notwithstanding the foregoing, however, in no event shall the Servicer have
any
liability (1) for any action or omission that is taken in accordance with and
in
compliance with the express terms of, or which is expressly permitted by the
terms of, this Agreement, (2) for any Losses other than arising out of a
negligent performance by the Servicer of its duties and obligations set forth
herein, and (3) for any special or consequential damages to Certificateholders
(in addition to payment of principal and interest on the
Certificates).
(b) In
the
event that any REMIC created hereunder fails to qualify as a REMIC, loses its
status as a REMIC, or incurs federal, state or local taxes as a result of a
prohibited transaction or prohibited contribution under the REMIC Provisions
due
to the negligent performance by the Trustee of its duties and obligations set
forth herein, the Trustee shall indemnify the Trust Fund against any and all
Losses resulting from such negligence; provided, however, that the Trustee
shall
not be liable for any such Losses attributable to the action or inaction of
the
Servicer, the Depositor or the Holder of such Class R Certificate, as
applicable, or for any such Losses resulting from misinformation provided by
the
Holder of such Class R Certificate on which the Trustee has relied. The
foregoing shall not be deemed to limit or restrict the rights and remedies
of
the Holder of such Class R Certificate now or hereafter existing at law or
in
equity. Notwithstanding the foregoing, however, in no event shall the Trustee
have any liability (1) for any action or omission that is taken in accordance
with and in compliance with the express terms of, or which is expressly
permitted by the terms of, this Agreement, (2) for any Losses other than arising
out of a negligent performance by the Trustee of its duties and obligations
set
forth herein, and (3) for any special or consequential damages to
Certificateholders (in addition to payment of principal and interest on the
Certificates).
ARTICLE
X
TERMINATION
Section
10.01. Termination.
(a) The
respective obligations and responsibilities of the Servicer, the Depositor
and
the Trustee created hereby (other than the obligation of the Trustee to make
certain payments to Certificateholders after the final Distribution Date and
the
obligation of the Servicer to send certain notices as hereinafter set forth)
shall terminate upon notice to the Trustee upon the earliest of (i) the
Distribution Date on which the Certificate Principal Balances of the
Certificates have been reduced to zero and any amounts owed to the Certificate
Insurer have been paid in full, (ii) the final payment or other liquidation
of
the last Mortgage Loan in the Trust and any amounts owed to the Certificate
Insurer have been paid in full and (iii) the optional purchase by the Terminator
of the Mortgage Loans as described below. Notwithstanding the foregoing, in
no
event shall the trust created hereby continue beyond the earlier of (i) the
Latest Possible Maturity Date and (ii) the expiration of 21 years from the
death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
ambassador of the United States to the Court of St. James’s, living on the date
hereof.
Either
(i) the Servicer, or (ii) if the Servicer fails to exercise such option and
any
portion of the Class A Certificates remain outstanding, the Certificate Insurer
(either the Servicer or the Certificate Insurer, as applicable, the
“Terminator”), shall have the right to terminate this Agreement on any
Distribution Date following the date on which the aggregate Stated Principal
Balance of the Mortgage Loans and REO Properties as of the last day of the
related Remittance Period is less than 10% of the aggregate Stated Principal
Balance of the Mortgage Loans on the Cut-off Date, by purchasing, on or before
such Distribution Date, all of the outstanding Mortgage Loans and REO Properties
at a price (the “Termination 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) as of such date of purchase (assuming for this
purpose that all amounts on deposit in the Certificate Account, net of amounts
payable or reimbursable to the Servicer, have been distributed pursuant to
Section 4.01 on or before such date of purchase) plus one month’s accrued
interest thereon at the applicable Mortgage Rate (or if the Terminator is the
Servicer, at the applicable Mortgage Rate less the Servicing Fee Rate), (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 Mortgage Rate (or if the Terminator is the
Servicer, at the applicable Mortgage Rate less the Servicing Fee Rate) and
(iii)
any related Net WAC Rate Carryover Amount and any outstanding amounts owed
to
the Certificate Insurer; provided that the purchase of the Mortgage Loans by
the
Terminator will not be permitted unless the total proceeds of such sale will
be
an amount sufficient to pay all principal and interest owed on the Class A
Certificates and all amounts owed to the Certificate Insurer.
In
connection with any such purchase pursuant to the preceding paragraph, the
Servicer shall remit to the Trustee for deposit in the Distribution Account
all
amounts then on deposit in the Certificate Account (after paying itself or
reimbursing itself for unreimbursed Advances and Servicing Advances and unpaid
Servicing Fees and withdrawing any other amounts payable to itself that it
is
permitted to withdraw from the Certificate Account), which deposit shall be
deemed to have occurred immediately preceding such purchase. Any such purchase
shall be accomplished by deposit of the Termination Price into the Distribution
Account on the Business Day before the date of final distribution pursuant
to
Section 10.01(c).
Upon
the
termination of the Trust Fund, any amounts remaining on deposit in the Excess
Reserve Fund Account shall be released by the Trust Fund and distributed by
the
Trustee to the Class C Certificateholders or their designees. Upon termination
of the Trust Fund, the Trustee will return the original Policy to the
Certificate Insurer.
With
such
repurchase by the Servicer, 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.
(b) Notice
of
any termination, specifying the date upon which the Certificateholders may
surrender their Certificates to the Trustee for payment of the final
distribution and cancellation, shall be given promptly by the Trustee upon
the
Trustee receiving notice of such date from the Servicer, by letter to the
Certificateholders mailed not earlier than the 15th
day and
not later than the 25th
day of
the month next preceding the month of such final distribution specifying (1)
the
date upon which final distribution of the Certificates will be made upon
presentation and surrender of such Certificates at the office or agency of
the
Trustee therein designated, (2) the amount of any such final distribution and
(3) that the Record Date otherwise applicable to such date of final distribution
is not applicable, distributions being made only upon presentation and surrender
of the Certificates at the office or agency of the Trustee therein
specified.
(c) Upon
presentation and surrender of the Certificates, the Trustee shall cause to
be
distributed to Holders of the Certificates on the date for such final
distribution (which date may be but is not required to be a Distribution Date),
in proportion to the Percentage Interests of their respective Certificates
and
to the extent that funds are available for such purpose, an amount equal to
the
amount required to be distributed to such Holders in accordance with the
provisions of Section 4.01 as if such date was the immediately following
Distribution Date, plus any residual amounts in excess thereof that are
available for such final distribution. By acceptance of the Class R
Certificates, the Holders of the Class R Certificates agree, in connection
with
any termination hereunder, to assign and transfer any amounts in excess of
the
par value of the Mortgage Loans, and to the extent received in respect of such
termination, to pay any such amounts to the Holders of the Class C
Certificates.
(d) In
the
event that all Certificateholders shall not surrender their Certificates for
final payment and cancellation on or before such final distribution, the Trustee
shall take the actions set forth in Section 4.01(h).
Section
10.02. Additional
Termination Requirements.
(a) In
the
event that the Terminator exercises its purchase option as provided in Section
10.01, each REMIC shall be terminated in accordance with the following
additional requirements, unless the Trustee shall have been furnished with
an
Opinion of Counsel to the effect that the failure of the Trust to comply with
the requirements of this Section will not (i) result in the imposition of taxes
on “prohibited transactions” of the Trust as defined in Section 860F of the Code
or (ii) cause any REMIC constituting part of the Trust Fund to fail to qualify
as a REMIC at any time that any Certificates are outstanding:
(i) Within
90
days prior to the final Distribution Date, the Servicer shall adopt and the
Trustee shall sign a plan of complete liquidation of each REMIC created
hereunder meeting the requirements of a “Qualified Liquidation” under Section
860F of the Code and any regulations thereunder; and
(ii) At
or
after the time of adoption of such a plan of complete liquidation and at or
prior to the final Distribution Date, the Trustee shall sell all of the assets
of the Trust Fund to the Servicer for cash pursuant to the terms of the plan
of
complete liquidation.
(b) By
their
acceptance of Certificates, the Holders thereof hereby agree to appoint the
Trustee as their attorney in fact to: (i) adopt such a plan of complete
liquidation (and the Certificateholders hereby appoint the Trustee as their
attorney in fact to sign such plan) as appropriate; and (ii) to take such other
action in connection therewith as may be reasonably required to carry out such
plan of complete liquidation all in accordance with the terms
hereof.
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
Section
11.01. Amendment.
This
Agreement may be amended from time to time by the Depositor, the Servicer and
the Trustee, with the consent of the Certificate Insurer but without the consent
of the Certificateholders, (i) to cure any ambiguity, (ii) to correct or
supplement any provisions herein which may be defective or inconsistent with
any
other provisions herein, (iii) to make or modify any other provisions with
respect to matters or questions arising under this Agreement which shall not
be
inconsistent with the provisions of this Agreement or (iv) to modify, eliminate
or add to any provisions of this Agreement to such extent as shall be necessary
or desirable to maintain the qualification of the Trust Fund as a REMIC at
all
times that any Certificate is outstanding or to avoid or minimize the risk
of
the imposition of any federal income tax on the Trust Fund pursuant to the
Code
that would be a claim against the Trust Fund; provided; that (1) such action
shall not, as evidenced by either (a) an Opinion of Counsel delivered to the
Trustee and the Certificate Insurer or (b) written notice to the Depositor,
the
Servicer and the Trustee from each Rating Agency that such action will not
result in the reduction or withdrawal of the rating of any outstanding Class
of
Certificates with respect to which it is a Rating Agency (without regard to
the
Policy), adversely affect in any material respect the interests of any
Certificateholder and (2) in the case of an amendment pursuant to clause (iv)
above, such action is necessary or desirable to maintain such qualification
or
to avoid or minimize the risk of the imposition of any such federal income
tax,
as evidenced by an Opinion of Counsel delivered to the Trustee and the
Certificate Insurer.
In
addition, this Agreement may be amended from time to time by the Depositor,
the
Servicer and the Trustee with the consent of the Majority Certificateholders
and
with the consent of the Certificate Insurer 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; provided, however, that no such amendment shall (i) reduce in
any
manner the amount of, or delay the timing of, payments on the Certificates
without the consent of the Holder of such Certificate, (ii) amend, modify,
add
to, rescind, or alter in any respect Section 11.15, 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 Servicer, the Seller, the Depositor
or
any Affiliate thereby shall be given effect for the purpose of calculating
any
such aggregation of Percentage Interests), (iii) modify, add to, rescind, alter,
or amend in any respect any provision of this Agreement restricting the Trust
Fund from holding any property or engaging in any activity that would disqualify
the Trust Fund from being a qualifying special purpose entity under generally
accepted accounting principles 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 Servicer, the Seller,
the
Depositor or any Affiliate thereby shall be given effect for the purpose of
calculating any such aggregation of Percentage Interests), or (iv) reduce the
aforesaid percentages of Certificates the Holders of which are required to
consent to any such amendment, without the consent of the Holders of all such
Certificates then outstanding. Upon approval of an amendment, a copy of such
amendment shall be sent to each Rating Agency.
Notwithstanding
any contrary provision of this Agreement, the Trustee shall not consent to
or
enter into any amendment to this Agreement unless it shall have first received
an Opinion of Counsel (addressed to the Trustee and the Certificate Insurer)
to
the effect that such amendment or the exercise of any power granted to the
Servicer, the Depositor or the Trustee in accordance with such amendment (i)
is
authorized or permitted by the Agreement and (ii) will not result in the
imposition of a tax on any REMIC created hereunder constituting part of the
Trust Fund pursuant to the REMIC Provisions or cause any REMIC created hereunder
constituting part of the Trust to fail to qualify as a REMIC at any time that
any Certificates are outstanding and that the amendment is being made in
accordance with the terms hereof.
Promptly
after the execution of any such amendment the Trustee shall furnish a copy
of
such amendment to each Certificateholder.
It
shall
not be necessary for the consent of Certificateholders under this Section 11.01
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.
The
cost
of any Opinion of Counsel to be delivered pursuant to this Section 11.01 shall
be borne by the Person seeking the related amendment, but in no event shall
such
Opinion of Counsel be an expense of the Trustee.
The
Trustee may but shall not be obligated to enter into any amendment pursuant
to
this Section that affects its rights, duties and immunities under this Agreement
or otherwise; provided however, that such consent shall not be unreasonably
withheld.
Section
11.02. Recordation
of Agreement; Counterparts.
To
the
extent permitted by applicable law, 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 the expense
of
the Trust, but only upon direction of Certificateholders and the Certificate
Insurer accompanied by an Opinion of Counsel to the effect that such recordation
materially and beneficially affects the interests of the Certificateholders
or
the Certificate Insurer.
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 together constitute but one and the same
instrument.
Section
11.03. Limitation
on Rights of Certificateholders.
The
death
or incapacity of any Certificateholder shall not (i) operate to terminate this
Agreement or the Trust, (ii) entitle such Certificateholder’s legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust or (iii)
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
Except
as
expressly provided for herein, no Certificateholder shall have any right to
vote
or in any manner otherwise control the operation and management of the Trust,
or
the obligations of the parties hereto, nor shall anything herein set forth
or
contained in the terms of the Certificates be construed so as to constitute
the
Certificateholders from time to time as partners or members of an association;
nor shall any Certificateholder be under any liability to any third person
by
reason of any action taken by the parties to this Agreement pursuant to any
provision hereof.
No
Certificateholder shall have any right by virtue of any provision 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 and the Certificate Insurer a written notice of
default and of the continuance thereof, as hereinbefore provided, and unless
also the Holders of Certificates entitled to at least 25% of the Voting Rights
(excluding any Certificates held by the Seller, the Servicer or any Affiliate)
thereof shall have made written request upon 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 15 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 is understood and intended, and 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 of any provision of this Agreement to affect, disturb or prejudice
the
rights of the Holders of any other of such Certificates, or to obtain or seek
to
obtain priority over or preference to any other such Holder, which priority
or
preference is not otherwise provided for herein, or to enforce any right under
this Agreement, except in the manner herein provided and for the equal, ratable
and common benefit of all Certificateholders. For the protection and enforcement
of the provisions of this Section 11.03 each and every Certificateholder and
the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section
11.04. Governing
Law; Jurisdiction.
This
Agreement shall be construed in accordance with the laws of the State of New
York, and the obligations, rights and remedies of the parties hereunder shall
be
determined in accordance with such laws. With respect to any claim arising
out
of this Agreement, each party irrevocably submits to the exclusive jurisdiction
of the courts of the State of New York and the United States District Court
located in the Borough of Manhattan in The City of New York, and each party
irrevocably waives any objection which it may have at any time to the laying
of
venue of any suit, action or proceeding arising out of or relating hereto
brought in any such courts, irrevocably waives any claim that any such suit,
action or proceeding brought in any such court has been brought in any
inconvenient forum and further irrevocably waives the right to object, with
respect to such claim, suit, action or proceeding brought in any such court,
that such court does not have jurisdiction over such party, provided that
service of process has been made by any lawful means.
Section
11.05. Notices.
All
directions, demands and notices hereunder shall be in writing and shall be
deemed to have been duly given if personally delivered at or mailed by first
class mail, postage prepaid, by facsimile (with confirmation of receipt) or
by
express delivery service, to (a) in the case of the Seller, the Seller and/or
Servicer, IndyMac Bank, F.S.B., 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx
00000, Attention: Secondary Marketing, or such other address or telecopy number
as may hereafter be furnished to the Depositor and the Trustee in writing by
the
Servicer, (b) in the case of the Trustee, Deutsche Bank National Trust Company,
0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000-0000, Attention: Trust
Administration-IN06L3 (telecopy number: (000) 000-0000), or such other address
or telecopy number as may hereafter be furnished to the Depositor and the
Servicer in writing by the Trustee; (c) in the case of the Depositor, IndyMac
MBS, Inc., 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, Attention:
Secondary Marketing, and (d) in the case of the Certificate Insurer, Ambac
Assurance Corporation, Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000,
Attention: Risk Management, Asset-Backed Securities (telecopy number: (000)
000-0000) (confirmation: (000) 000-0000), with a copy to General Counsel, or
such other address or telecopy number as may be furnished to the Servicer,
the
Certificate Insurer and the Trustee in writing by the Depositor. Any notice
required or permitted to be mailed to a Certificateholder shall be given by
first class mail, postage prepaid, at the address of such Holder as shown in
the
Certificate Register. Notice of any Servicer Event of Termination shall be
given
by telecopy and by certified mail. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have duly been
given when mailed, whether or not the Certificateholder receives such notice.
A
copy of any notice required to be telecopied hereunder shall also be mailed
to
the appropriate party in the manner set forth above.
Section
11.06. Severability
of Provisions.
If
any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall for any reason whatsoever be 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 or the rights of
the
Certificate Insurer.
Section
11.07. Article
and Section References.
All
article and section references used in this Agreement, unless otherwise
provided, are to articles and sections in this Agreement.
Section
11.08. Notice
to the Rating Agencies and the Certificate Insurer.
(a) Each
of
the Trustee and the Servicer shall be obligated to use its best reasonable
efforts promptly to provide notice to each Rating Agency and the Certificate
Insurer with respect to each of the following of which a Responsible Officer
of
the Trustee or Servicer, as the case may be, has actual knowledge:
(i) any
material change or amendment to this Agreement;
(ii) the
occurrence of any Servicer Event of Termination that has not been cured or
waived;
(iii) the
resignation or termination of the Servicer or the Trustee;
(iv) the
final
payment to Holders of any Class of the Certificates;
(v) any
change in the location of any Account; and
(vi) if
the
Trustee is acting as successor Servicer pursuant to Section 7.02 hereof, any
event that would result in the inability of the Trustee to make
Advances.
(b) In
addition, the Trustee shall promptly make available to each Rating Agency and
the Certificate Insurer copies of each Statement to Certificateholders described
in Section 4.02 hereof and the Servicer shall promptly furnish to each Rating
Agency and the Certificate Insurer copies of the following:
(i) each
annual statement as to compliance described in Section 3.20 hereof;
(ii) each
annual independent public accountants’ servicing report described in Section
3.21 hereof; and
(iii) each
notice delivered pursuant to Section 7.01(a) hereof which relates to the fact
that the Servicer has not made an Advance.
Any
such
notice pursuant to this Section 11.08 shall be in writing and shall be deemed
to
have been duly given if personally delivered or mailed by first class mail,
postage prepaid, or by express delivery service to Xxxxx’x Investors Service,
Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: MBS Monitoring/IndyMac
Residential Mortgage-Backed Trust Certificates, Series 2006-L3 and to Standard
& Poor’s, a division of the XxXxxx-Xxxx Companies, Inc., 00 Xxxxx Xxxxxx,
00xx xxxxx, Xxx Xxxx, Xxx Xxxx 10041-0003, Attention: ABS Surveillance Group-
New Assets, or such other addresses as the Rating Agencies may designate in
writing to the parties hereto.
Section
11.09. Further
Assurances.
Notwithstanding
any other provision of this Agreement, neither the Certificateholders nor the
Trustee shall have any obligation to consent to any amendment or modification
of
this Agreement unless they have been provided reasonable security or indemnity
against their out-of-pocket expenses (including reasonable attorneys’ fees) to
be incurred in connection therewith.
Section
11.10. Benefits
of Agreement.
Except
as
set forth in Section 11.12 and Section 11.16, nothing in this Agreement or
in
the Certificates, expressed or implied, shall give to any Person, other than
the
Certificateholders, the Certificate Insurer and the parties hereto and their
successors hereunder, any benefit or any legal or equitable right, remedy or
claim under this Agreement. The Certificate Insurer shall be an express
third-party beneficiary of this Agreement.
Section
11.11. Acts
of Certificateholders.
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Agreement to be given or taken by the Certificateholders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Certificateholders in person or by agent duly
appointed in writing, and such action shall become effective when such
instrument or instruments are delivered to the Trustee and the Servicer. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the “act” of the Certificateholders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
any
purpose of this Agreement and conclusive in favor of the Trustee and the Trust,
if made in the manner provided in this Section 11.11.
(b) The
fact
and date of the execution by any Person of any such instrument or writing may
be
proved by the affidavit of a witness of such execution or by the certificate
of
a notary public or other officer authorized by law to take acknowledgments
of
deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Whenever such execution is by a
signer acting in a capacity other than his or her individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority.
(c) Any
request, demand, authorization, direction, notice, consent, waiver or other
action by any Certificateholder shall bind every future Holder of such
Certificate and the Holder of every Certificate issued upon the registration
of
transfer thereof or in exchange therefor or in lieu thereof, in respect of
anything done, omitted or suffered to be done by the Trustee or the Trust in
reliance thereon, whether or not notation of such action is made upon such
Certificate.
Section
11.12. Grant
of Security Interest.
It
is the
express intent of the parties hereto that the conveyance of the Mortgage Loans
by the Depositor to the Trustee, be, and be construed as, a sale of the Mortgage
Loans by the Depositor and not a pledge of the Mortgage Loans to secure a debt
or other obligation of the Depositor. However, in the event that,
notwithstanding the aforementioned intent of the parties, the Mortgage Loans
are
held to be property of the Depositor, then, (a) it is the express intent of
the
parties that such conveyance be deemed a pledge of the Mortgage Loans by the
Depositor to the Trustee to secure a debt or other obligation of the Depositor
and (b)(1) this Agreement shall also be deemed to be a security agreement within
the meaning of Articles 8 and 9 of the Uniform Commercial Code as in effect
from
time to time in the State of New York; (2) the conveyance provided for in
Section 2.01 hereof shall be deemed to be a grant by the Depositor to the
Trustee of a security interest in all of the Depositor’s right, title and
interest in and to the Mortgage Loans and all amounts payable to the holders
of
the Mortgage Loans in accordance with the terms thereof and all proceeds of
the
conversion, voluntary or involuntary, of the foregoing into cash, instruments,
securities or other property, including without limitation all amounts, other
than investment earnings, from time to time held or invested in the Certificate
Account and the Distribution Account, whether in the form of cash, instruments,
securities or other property; (3) the obligations secured by such security
agreement shall be deemed to be all of the Depositor’s obligations under this
Agreement, including the obligation to provide to the Certificateholders the
benefits of this Agreement relating to the Mortgage Loans and the Trust Fund;
and (4) notifications to persons holding such property, and acknowledgments,
receipts or confirmations from persons holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the Trustee for the purpose
of perfecting such security interest under applicable law. Accordingly, the
Depositor hereby grants to the Trustee a security interest in the Mortgage
Loans
and all other property described in clause (2) of the preceding sentence, for
the purpose of securing to the Trustee the performance by the Depositor of
the
obligations described in clause (3) of the preceding sentence. Notwithstanding
the foregoing, the parties hereto intend the conveyance pursuant to Section
2.01
to be a true, absolute and unconditional sale of the Mortgage Loans and assets
constituting the Trust Fund by the Depositor to the Trustee.
Section
11.13. 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
11.14. Protection
of Assets.
(a) Except
for transactions and activities entered into in connection with the
securitization that is the subject of this agreement, the Trust created by
this
Agreement is not authorized and has no power to:
(1) borrow
money or issue debt;
(2) merge
with another entity, reorganize, liquidate or sell assets;
(3) engage
in
any business or activities.
(b) Each
party to this agreement agrees that it will not file an involuntary bankruptcy
petition against the Trustee or the Trust Fund or initiate any other form of
insolvency proceeding until at least one year and one day after the Certificates
have been paid in full.
Section
11.15. 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.
Section
11.16. Rights
of the Certificate Insurer.
(a) The
Certificate Insurer is an express third-party beneficiary of this
Agreement.
(b) The
Trustee or the Depositor, as applicable, shall provide to the Certificate
Insurer copies of any report, notice, Opinion of Counsel, Officers’ Certificate,
request for consent or request for amendment to any document related hereto
promptly upon the Trustee’s or the Depositor’s production or receipt thereof,
but only to the extent that such item is required to be delivered to the
Certificate Insurer hereunder.
(c) Unless
a
Certificate Insurer Default exists, the Trustee, the Servicer and the Depositor
shall not agree to any amendment to this Agreement without first having obtained
the prior written consent of the Certificate Insurer.
(d) So
long
as there does not exist a failure by the Certificate Insurer to make a required
payment under the Policy, the Certificate Insurer shall have the right to
exercise all rights of the Holders of the Insured Certificates under this
Agreement without any consent of such Holders, and such Holders may exercise
such rights only with the prior written consent of the Certificate Insurer,
except as provided herein.
(e) The
Certificate Insurer shall not be entitled to exercise any of its rights
hereunder so long as there exists a failure by the Certificate Insurer to make
a
required payment under the Policy.
IN
WITNESS WHEREOF, the Depositor, the Seller, the Servicer and the Trustee have
caused their names to be signed hereto by their respective officers thereunto
duly authorized, all as of the day and year first above written.
INDYMAC
MBS, INC.,
as
Depositor
By: /s/
Xxxx Xxxxxxxx
Name:
Xxxx
Xxxxxxxx
Title:
Vice
President
INDYMAC
BANK, F.S.B.
as
Seller
and Servicer
By: /s/
Xxxx Xxxxxxxx
Name:
Xxxx
Xxxxxxxx
Title:
Vice
President
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
as
Trustee
By: /s/
Xxxxxx Xxxxx
Name:
Xxxxxx Xxxxx
Title:
Associate
By: /s/
Xxxxxxxx Xxxxxxxxxxx
Name:
Xxxxxxxx Xxxxxxxxxxx
Title:
Associate
|
STATE
OF CALIFORNIA
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF LOS ANGELES
|
)
|
On
the
20th day of September, 2006 before me, a notary public in and for said
State,
personally appeared Xxxx Xxxxxxxx known to me to be a Vice President of
IndyMac
MBS Inc., a Delaware corporation that executed the within instrument, and
also
known to me to be the person who executed it on behalf of said corporation,
and
acknowledged to me that such corporation executed the within
instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
/s/
Xxxx Xxxxxxxxx
Notary
Public
|
STATE
OF CALIFORNIA
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF LOS ANGELES
|
)
|
On the 20th day of September, 2006 before me, a notary public in and for said State, personally appeared Xxxx Xxxxxxxx known to me to be a Vice President of IndyMac MBS Inc., a Delaware corporation that executed the within instrument, and also known to me to be the person who executed it on behalf of said corporation, and acknowledged to me that such corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
/s/
Xxxx Xxxxxxxxx
Notary
Public
|
STATE
OF CALIFORNIA
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF ORANGE
|
)
|
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
/s/
Xxxxx Xxxxxx
Notary
Public
|
STATE
OF CALIFORNIA
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF ORANGE
|
)
|
On the 20th day of September, 2006 before me, a notary public in and for said State, personally appeared Xxxxxxxx Xxxxxxxxxxx to be an Associate of Deutsche Bank National Trust Company that executed the within instrument, and also known to me to be the person who executed it on behalf of said corporation, and acknowledged to me that such corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
/s/
Xxxxx Xxxxxx
Notary
Public
EXHIBIT
A-1
FORM
OF
CLASS [A-1] [A-2] [A-3] CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE 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”).
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
___________
__, 200_
|
|
First
Distribution Date
|
:
|
___________
__, 200_
|
|
Initial
Certificate Balance of this Certificate (“Denomination”)
|
:
|
$_____
|
|
Initial
Certificate Balances of all Certificates of this Class
|
:
|
$_____
|
|
CUSIP
|
:
|
___________
|
|
Interest
Rate
|
:
|
Variable
|
INDYMAC
MBS, INC.
IndyMac
Residential Mortgage-Backed Trust 2006-L3,
Mortgage-Backed
Certificates, Series 2006-L3
Class
[A-1] [A-2] [A-3]
evidencing
a percentage interest in the distributions allocable to the Certificates
of the
above-referenced Class.
Principal
in respect of this Certificate is distributable monthly as stated herein.
Accordingly, the Certificate Principal Balance at any time may be less than
the
Certificate Principal 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
pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date
specified above (the “Agreement”) among IndyMac MBS, Inc., as depositor (the
“Depositor”), IndyMac Bank, F.S.B., as seller (in such capacity, the “Seller”)
and as servicer (in such capacity, the “Servicer”), and Deutsche Bank National
Trust Company, as trustee (the “Trustee”). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement.
This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is
bound.
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.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any Person using “Plan Assets” to acquire this Certificate shall be made except
in accordance with Section 5.02(d) of the Agreement.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory
of the
Trustee.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
___________ __, 200_
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
not
in its individual capacity, but solely as Trustee
|
||||||||||||||
|
By:
|
||||||||||||||
|
Countersigned:
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory of
DEUTSCHE
BANK NATIONAL TRUST
COMPANY, not in its individual
capacity, but
solely as Trustee
|
|||||||||||||
INDYMAC
MBS, INC.
IndyMac
Residential Mortgage-Backed Trust 2006-L3,
Mortgage-Backed
Certificates, Series 2006-L3
This
Certificate is one of a duly authorized issue of Certificates designated
as
IndyMac MBS, Inc., IndyMac Residential Mortgage-Backed Trust, of the Series
specified on the face hereof (herein collectively called the “Certificates”),
and representing a beneficial ownership interest in the Trust 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 (i) with respect to each Class A Certificate, the Subordinated Certificates
and any Book-Entry Certificate, the Business Day immediately preceding such
Distribution Date and (ii) the Class C Certificates, the Class P Certificates,
the Class R Certificates and any Definitive Certificate, the last Business
Day
of the month immediately preceding the month in which such Distribution Date
occurs (or, in the case of the first Distribution Date, the Closing
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 Certificate
Insurer and 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 office or agency maintained by the Trustee in New York, New York,
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by the holder hereof
or such
holder’s attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations and evidencing
the
same aggregate Percentage Interest in the Trust 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 none of the Depositor,
the
Trustee, or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date on which the aggregate Stated Principal
Balance of the Mortgage Loans and REO Properties as of the last day of the
related Remittance Period is less than 10% of the sum of the Stated Principal
Balances of the Closing Date Mortgage Loans and REO Properties on the Cut-off
Date, the Servicer or if the Servicer fails to exercise such option and any
portion of the Class A-1 Certificates remain outstanding, the Certificate
Insurer, will have the right to repurchase, in whole, from the Trust all
remaining Mortgage Loans and all property acquired in respect of the Mortgage
Loans at a purchase price determined as provided in the Agreement. The
obligations and responsibilities created by the Agreement will terminate
as
provided in Section 10.01 of 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.
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.
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.
|
||||
|
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]
EXHIBIT
A-2
FORM
OF
CLASS M CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE 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”).
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES TO THE EXTENT DESCRIBED
IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
___________
__, 200_
|
|
First
Distribution Date
|
:
|
___________
__, 200_
|
|
Initial
Certificate Balance of this Certificate (“Denomination”)
|
:
|
$_____
|
|
Initial
Certificate Balances of all Certificates of this Class
|
:
|
$_____
|
|
CUSIP
|
:
|
___________
|
|
Interest
Rate
|
:
|
___________
|
INDYMAC
MBS, INC.
IndyMac
Residential Mortgage-Backed Trust 2006-L3,
Mortgage-Backed
Certificates, Series 2006-L3
Class
M
evidencing
a percentage interest in the distributions allocable to the Certificates
of the
above-referenced Class.
Principal
in respect of this Certificate is distributable monthly as stated herein.
Accordingly, the Certificate Principal Balance at any time may be less than
the
Certificate Principal 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
pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date
specified above (the “Agreement”) among IndyMac MBS, Inc., as depositor (the
“Depositor”), IndyMac Bank, F.S.B., as seller (in such capacity, the “Seller”)
and as servicer (in such capacity, the “Servicer”), and Deutsche Bank National
Trust Company, as trustee (the “Trustee”). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement.
This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is
bound.
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.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any Person using “Plan Assets” to acquire this Certificate shall be made except
in accordance with Section 5.02(d) of the Agreement.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory
of the
Trustee.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
__________ __, 200_
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
not
in its individual capacity, but solely as Trustee
|
||||||||||||||
|
By:
|
||||||||||||||
|
Countersigned:
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory of
DEUTSCHE
BANK NATIONAL
TRUST
COMPANY, not in its
individual
capacity,
but
solely as Trustee
|
|||||||||||||
INDYMAC
MBS, INC.
IndyMac
Residential Mortgage-Backed Trust 2006-L3,
Mortgage-Backed
Certificates, Series 2006-L3
This
Certificate is one of a duly authorized issue of Certificates designated
as
IndyMac MBS, Inc., IndyMac Residential Mortgage-Backed Certificates, of the
Series specified on the face hereof (herein collectively called the
“Certificates”), and representing a beneficial ownership interest in the Trust
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 (i) with respect to each Class A Certificates, the Subordinated Certificates
and any Book-Entry Certificate, the Business Day immediately preceding such
Distribution Date and (ii) the Class C Certificates, the Class P Certificates,
the Class R Certificates and any Definitive Certificate, the last Business
Day
of the month immediately preceding the month in which such Distribution Date
occurs (or, in the case of the first Distribution Date, the Closing
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 Certificate
Insurer and 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 office or agency maintained by the Trustee in New York, New York,
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by the holder hereof
or such
holder’s attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations and evidencing
the
same aggregate Percentage Interest in the Trust 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 none of the Depositor,
the
Trustee, or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date on which the aggregate Stated Principal
Balance of the Mortgage Loans and REO Properties as of the last day of the
related Remittance Period is less than 10% of the sum of the Stated Principal
Balances of the Closing Date Mortgage Loans and REO Properties on the Cut-off
Date, the Servicer or if the Servicer fails to exercise such option and any
portion of the Class A Certificates remain outstanding, the Certificate Insurer,
will have the right to repurchase, in whole, from the Trust all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans
at a
purchase price determined as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
10.01 of 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.
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.
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.
|
||||
|
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]
EXHIBIT
A-3
FORM
OF
CLASS B CERTIFICATES
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED
(THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS CERTIFICATE
NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE
OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION UNDER THE SECURITIES ACT.
THE
HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR
OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL APPLICABLE
STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT WHICH
HAS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (B) FOR SO LONG AS THIS
CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES
ACT (“RULE 144A”), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A
“QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED 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 SUBORDINATE TO THE CLASS A CERTIFICATES AND THE CLASS M
CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
___________
__, 200_
|
|
First
Distribution Date
|
:
|
___________
__, 200_
|
|
Initial
Certificate Balance of this Certificate (“Denomination”)
|
:
|
$_____
|
|
Initial
Certificate Balances of all Certificates of this Class
|
:
|
$_____
|
|
CUSIP
|
:
|
___________
|
|
Interest
Rate
|
:
|
___________
|
INDYMAC
MBS, INC.
IndyMac
Residential Mortgage-Backed Trust 2006-L3,
Mortgage-Backed
Certificates, Series 2006-L3
Class
B
evidencing
a percentage interest in the distributions allocable to the Certificates
of the
above-referenced Class.
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class B Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof. This Class B Certificate does not evidence an obligation
of, or
an interest in, and is not guaranteed by the Depositor, the Servicer, or
the
Trustee referred to below or any of their respective affiliates.
This
certifies that [___] is the registered owner of the Percentage Interest
evidenced by this Class B Certificate (obtained by dividing the Denomination
of
this Class B Certificate by the Initial Certificate Principal Balance of
this
Class) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by IndyMac MBS, Inc. (the
“Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of September 1, 2006 (the “Agreement”) among the Depositor,
IndyMac Bank, F.S.B., as seller (the “Seller”) and servicer (the “Servicer”) and
Deutsche Bank National Trust Company, as Trustee (the “Trustee”). To the extent
not defined herein, the capitalized terms used herein have the meanings assigned
in the Agreement. This Class B Certificate is issued under and is subject
to the
terms, provisions and conditions of the Agreement, to which Agreement the
Holder
of this Class B Certificate by virtue of the acceptance hereof assents and
by
which such Holder is bound.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Act and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such laws. In the event of any such transfer of any Ownership
Interest in any Private Certificate that is a Book-Entry Certificate, except
with respect to the initial transfer of any such Certificate by the Depositor,
such transfer shall be required to be made in reliance upon Rule 144A under
the
1933 Act, and the transferor will be deemed to have made each of the
representations and warranties set forth on Exhibit L hereto in respect of
such
interest as if it was evidenced by such Private Certificate and the transferee
will be deemed to have made each of the representations and warranties set
forth
in the Form of Rule 144A Investment Letter included as part of Exhibit J
hereto
in respect of such interest as if it was evidenced by a Definitive Certificate.
The Certificate Owner of any such Ownership Interest in any such Private
Certificate 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 this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any Person using “Plan Assets” to acquire this Certificate shall be made except
in accordance with Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class B 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
Class B Certificate shall not be entitled to any benefit under the Agreement
or
be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
__________ __, 200_
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
not
in its individual capacity, but solely as Trustee
|
||||||||||||||
|
By:
|
||||||||||||||
|
Countersigned:
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory of
DEUTSCHE
BANK NATIONAL TRUST
COMPANY, not in its individual
capacity,
but
solely as Trustee
|
|||||||||||||
INDYMAC
MBS, INC.
IndyMac
Residential Mortgage-Backed Trust 2006-L3,
Mortgage-Backed
Certificates, Series 2006-L3
This
Certificate is one of a duly authorized issue of Certificates designated
as
IndyMac MBS, Inc., IndyMac Residential Mortgage-Backed Trust 2006-L3, Mortgage
Backed Certificates, Series 2006-L3 (herein collectively called the
“Certificates”), and representing a beneficial ownership interest in the Trust
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 then the first Business
Day following such Distribution Date (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.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office or agency of
the
Trustee 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 and of Holders of the requisite
percentage of the Percentage Interests of each Class of Certificates affected
by
such amendment, as specified 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 office or agency maintained by the Trustee accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust 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
Servicer, the Depositor 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 none of the Depositor, the Servicer, the
Trustee or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date on which the aggregate Stated Principal
Balance of the Mortgage Loans and REO Properties as of the last day of the
related Remittance Period is less than 10% of the sum of the Stated Principal
Balances of the Closing Date Mortgage Loans and REO Properties on the Cut-off
Date, the Servicer or if the Servicer fails to exercise such option and any
portion of the Class A Certificates remain outstanding, the Certificate Insurer,
will have the right to repurchase, in whole, from the Trust all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans
at a
purchase price determined as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
10.01 of the Agreement.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
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.
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.
|
||||
|
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]
EXHIBIT
A-4
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 HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED
(THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS CERTIFICATE
NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE
OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION UNDER THE SECURITIES 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.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
___________
__, 200_
|
|
First
Distribution Date
|
:
|
___________
__, 200_
|
|
Percentage
Interest of this Certificate
(“Denomination”)
|
:
|
100%
|
INDYMAC
MBS, INC.
IndyMac
Residential Mortgage-Backed Trust 2006-L3,
Mortgage-Backed
Certificates, Series 2006-L3
Class
C
evidencing
a percentage interest in the distributions allocable to the Certificates
of the
above-referenced Class.
The
Certificate Principal Balance of this Class C Certificate at any time may
be
greater than or less than the Initial Certificate Principal Balance set forth
on
the face hereof. The Notional Amount of this Class C Certificate at any time
may
be less than the Initial Notional Amount set forth on the face hereof. This
Class C Certificate does not evidence an obligation of, or an interest in,
and
is not guaranteed by the Depositor, the Servicer, or the Trustee referred
to
below or any of their respective affiliates.
This
certifies that [__] is the registered owner of the Percentage Interest evidenced
by this Class C Certificate (obtained by dividing the Denomination of this
Class
C Certificate by the Initial Notional Amount of this Class) in certain
distributions with respect to a Trust consisting primarily of the Mortgage
Loans
deposited by IndyMac MBS, Inc. (the “Depositor”). The Trust was created pursuant
to a Pooling and Servicing Agreement dated as of the Cut-off Date (the
“Agreement”) among the Depositor, IndyMac Bank, F.S.B., as seller (the “Seller”)
and servicer (the “Servicer”) and Deutsche Bank National Trust Company, as
Trustee (the “Trustee”). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Agreement. This Class C
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Class
C
Certificate by virtue of the acceptance hereof assents and by which such
Holder
is bound.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Act and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such laws. In the event of any such transfer (i) unless
such
transfer is made in reliance upon Rule 144A under the 1933 Act (as evidenced
by
the investment letter delivered to the Trustee, in substantially the form
of the
Form of Rule 144A Investment Letter included as part of Exhibit J to the
Agreement), the Trustee and the Depositor shall require a written Opinion
of
Counsel (which may be in-house counsel) acceptable to and in form and substance
reasonably satisfactory to the Trustee and the Depositor that such transfer
may
be made pursuant to an exemption, describing the applicable exemption and
the
basis therefor, form the 1933 Act or is being made pursuant to the 1933 Act,
which Opinion of Counsel shall not be an expense of the Trustee or the Depositor
or (ii) the Trustee shall require the transferor to execute a transferor
certificate (in substantially the form of Exhibit L of the Agreement) and
the
transferee to execute an investment letter (in substantially the form attached
hereto as Exhibit J of the Agreement) acceptable to and in form and substance
reasonably satisfactory to the Depositor and the Trustee certifying to the
Depositor and the Trustee the facts surrounding such transfer, which investment
letter shall not be an expense of the Trustee 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 this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class C 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
Class C Certificate shall not be entitled to any benefit under the Agreement
or
be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
June __, 2006
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
not
in its individual capacity, but solely as Trustee
|
||||||||||||||
|
By:
|
||||||||||||||
|
Countersigned:
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory of
DEUTSCHE
BANK NATIONAL TRUST
COMPANY, not in its individual
capacity, but
solely as Trustee
|
|||||||||||||
INDYMAC
MBS, INC.
IndyMac
Residential Mortgage-Backed Trust 2006-L3,
Mortgage-Backed
Certificates, Series 2006-L3
This
Certificate is one of a duly authorized issue of Certificates designated
as
IndyMac MBS, Inc., IndyMac Residential Mortgage-Backed Trust 2006-L3, Mortgage
Backed Certificates, Series 2006-L3 (herein collectively called the
“Certificates”), and representing a beneficial ownership interest in the Trust
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 then the first Business
Day following such Distribution Date (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.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office or agency of
the
Trustee 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 and of Holders of the requisite
percentage of the Percentage Interests of each Class of Certificates affected
by
such amendment, as specified 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 office or agency maintained by the Trustee accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust 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
Servicer, the Depositor 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 none of the Depositor, the Servicer, the
Trustee or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date on which the aggregate Stated Principal
Balance of the Mortgage Loans and REO Properties as of the last day of the
related Remittance Period is less than 10% of the sum of the Stated Principal
Balances of the Closing Date Mortgage Loans and REO Properties on the Cut-off
Date, the Servicer or if the Servicer fails to exercise such option and any
portion of the Class A Certificates remain outstanding, the Certificate Insurer,
will have the right to repurchase, in whole, from the Trust all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans
at a
purchase price determined as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
10.01 of the Agreement.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
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.
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.
|
||||
|
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]
EXHIBIT
A-5
FORM
OF
CLASS R CERTIFICATES
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”).
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED
(THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS CERTIFICATE
NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE
OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION UNDER THE SECURITIES 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.
THIS
CLASS R CERTIFICATE HAS NO PRINCIPAL BALANCE, DOES NOT BEAR INTEREST AND
WILL
NOT RECEIVE ANY DISTRIBUTIONS EXCEPT AS PROVIDED HEREIN.
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 POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
___________
__, 200_
|
|
Aggregate
Percentage Interest of the Class R Certificates as of the Issue
Date
|
:
|
100.00%
|
INDYMAC
MBS, INC.
IndyMac
Residential Mortgage-Backed Trust 2006-L3,
Mortgage-Backed
Certificates, Series 2006-L3
Class
R
evidencing
the distributions allocable to the Class R Certificates with respect to a
Trust
consisting primarily of a pool of fixed and adjustable-rate, residential
lot
mortgage loans (the “Mortgage Loans”) secured by parcels of land that have been
improved for residential use.
IndyMac
MBS, Inc., as Depositor
This
Certificate does not evidence an obligation of, or an interest in, and is
not
guaranteed by the Depositor, the Servicer or the Trustee referred to below
or
any of their respective affiliates.
This
certifies that [___] is the registered owner of the Percentage Interest
evidenced by this Certificate specified above in the interest represented
by all
Certificates of the Class to which this Certificate belongs in a Trust
consisting primarily of the Mortgage Loans deposited by IndyMac MBS, Inc.
(the
“Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of the Cut-off Date (the “Agreement”) among the Depositor,
IndyMac Bank, F.S.B., as seller (the “Seller”) and Servicer (the “Servicer”) and
Deutsche Bank National Trust Company, as trustee (the “Trustee”). To the extent
not defined herein, the capitalized terms used herein have the meanings assigned
in the Agreement. This Certificate is issued under and is subject to the
terms,
provisions and conditions of the Agreement, to which Agreement the Holder
of
this Certificate by virtue of the acceptance hereof assents and by which
such
Holder is bound.
This
Certificate does not have a principal 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
in New
York, New York.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Act and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such laws. In the event of any such transfer (i) unless
such
transfer is made in reliance upon Rule 144A under the 1933 Act (as evidenced
by
the investment letter delivered to the Trustee, in substantially the form
of the
Form of Rule 144A Investment Letter included as part of Exhibit J to the
Agreement), the Trustee and the Depositor shall require a written Opinion
of
Counsel (which may be in-house counsel) acceptable to and in form and substance
reasonably satisfactory to the Trustee and the Depositor that such transfer
may
be made pursuant to an exemption, describing the applicable exemption and
the
basis therefor, form the 1933 Act or is being made pursuant to the 1933 Act,
which Opinion of Counsel shall not be an expense of the Trustee or the Depositor
or (ii) the Trustee shall require the transferor to execute a transferor
certificate (in substantially the form of Exhibit L of the Agreement) and
the
transferee to execute an investment letter (in substantially the form attached
hereto as Exhibit J of the Agreement) acceptable to and in form and substance
reasonably satisfactory to the Depositor and the Trustee certifying to the
Depositor and the Trustee the facts surrounding such transfer, which investment
letter shall not be an expense of the Trustee 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 this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Each
Holder of this 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
Certificate must 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 Person shall acquire an Ownership Interest in this Certificate unless
such
Ownership Interest is a pro rata undivided interest; (iii) in connection
with
any proposed transfer of any Ownership Interest in this Certificate, the
Trustee
shall as a condition to registration of the transfer, require delivery to
it, in
form and substance satisfactory to it, of each of the following: (a) an
affidavit in the form of Exhibit O to the Agreement from the proposed transferee
to the effect that such transferee is a Permitted Transferee and that it
is not
acquiring its Ownership Interest in the Class R Certificate that is the subject
of the proposed transfer as a nominee, trustee or agent for any Person who
is
not a Permitted Transferee; and (b) a covenant of the proposed transferee
to the
effect that the proposed transferee agrees to be bound by and to abide by
the
transfer restrictions applicable to the Class R Certificates; (iv) any attempted
or purported transfer of any Ownership Interest in this Certificate in violation
of the provisions of this Section shall be absolutely null and void and shall
vest no rights in the purported transferee.
Reference
is hereby made to the further provisions of this Class R Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory
of the
Trustee.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
___________ __, 200_
|
DEUTSCHE
BANK NATIONAL TRUST
COMPANY,
not
in its individual capacity, but solely as Trustee
|
||||||||||||||
|
By:
|
||||||||||||||
|
Countersigned:
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory of
DEUTSCHE
BANK NATIONAL TRUST
COMPANY, not in its individual
capacity,
but
solely as Trustee
|
|||||||||||||
INDYMAC
MBS, INC.
IndyMac
Residential Mortgage-Backed Trust 2006-L3,
Mortgage-Backed
Certificates, Series 2006-L3
This
Certificate is one of a duly authorized issue of Certificates designated
as
IndyMac MBS, Inc., IndyMac Residential Mortgage Backed Trust 2006-L3, Mortgage
Backed Certificates, Series 2006-L3 (herein collectively called the
“Certificates”), and representing a beneficial ownership interest in the Trust
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 then the first Business
Day following such Distribution Date (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.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office or agency of
the
Trustee 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 and of Holders of the requisite
percentage of the Percentage Interests of each Class of Certificates affected
by
such amendment, as specified 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 office or agency maintained by the Trustee accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust 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
Servicer, the Depositor 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 none of the Depositor, the Servicer, the
Trustee or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date on which the aggregate Stated Principal
Balance of the Mortgage Loans and REO Properties as of the last day of the
related Remittance Period is less than 10% of the sum of the Stated Principal
Balances of the Closing Date Mortgage Loans and REO Properties on the Cut-off
Date, the Servicer or if the Servicer fails to exercise such option and any
portion of the Class A Certificates remain outstanding, the Certificate Insurer,
will have the right to repurchase, in whole, from the Trust all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans
at a
purchase price determined as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
10.01 of the Agreement.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
|
TEN
COM - as tenants in common
|
UNIF
GIFT MIN ACT - Custodian
|
|
TEN
ENT - as tenants by the entireties
|
(Cust)
(Minor) under
Uniform
Gifts to Minors Act
|
|
JT
TEN - as joint tenants with
right
of survivorship and not as
tenants
in common
|
_____________
(State)
|
Additional
abbreviations may also be used though not in the above list.
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.
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.
|
||||
|
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]
EXHIBIT
A-6
FORM
OF
CLASS P CERTIFICATES
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.
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 “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS CERTIFICATE
NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE
OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION UNDER THE SECURITIES 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.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
___________
__, 200_
|
|
First
Distribution Date
|
:
|
___________
__, 200_
|
|
Initial
Certificate Balances
of
all Certificates
of
this Class
(“Denomination”)
|
$100
|
|
|
Percentage
Interest
of
this Certificate
(“Denomination”)
|
$100
|
INDYMAC
MBS, INC.
IndyMac
Residential Mortgage-Backed Trust 2006-L3,
Mortgage-Backed
Certificates, Series 2006-L3
Class
P
evidencing
a percentage interest in the distributions allocable to the Certificates
of the
above-referenced Class payable solely from Prepayment Charges.
Distributions
in respect of this Certificate are distributable monthly 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 distributions with respect
to a Trust consisting primarily of the Mortgage Loans deposited by IndyMac
MBS,
Inc. (the “Depositor”). The Trust was created pursuant to a Pooling and
Servicing Agreement dated as of the Cut-off Date (the “Agreement”) among the
Depositor, IndyMac Bank, F.S.B., as seller (the “Seller”) and servicer (the
“Servicer”) and Deutsche Bank National Trust Company, as Trustee (the
“Trustee”). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement,
to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound. This Certificate represents
an
interest in the Trust, but does not represent an interest in any
REMIC.
This
Certificate does not have a Pass-Through Rate and will be entitled to
distributions only to the extent set forth in the Agreement and solely payable
from Prepayment Charges. 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 office or agency maintained by the
Trustee.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Act and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such laws. In the event of any such transfer (i) unless
such
transfer is made in reliance upon Rule 144A under the 1933 Act (as evidenced
by
the investment letter delivered to the Trustee, in substantially the form
of the
Form of Rule 144A Investment Letter included as part of Exhibit J to the
Agreement), the Trustee and the Depositor shall require a written Opinion
of
Counsel (which may be in-house counsel) acceptable to and in form and substance
reasonably satisfactory to the Trustee and the Depositor that such transfer
may
be made pursuant to an exemption, describing the applicable exemption and
the
basis therefor, form the 1933 Act or is being made pursuant to the 1933 Act,
which Opinion of Counsel shall not be an expense of the Trustee or the Depositor
or (ii) the Trustee shall require the transferor to execute a transferor
certificate (in substantially the form of Exhibit L of the Agreement) and
the
transferee to execute an investment letter (in substantially the form attached
hereto as Exhibit J of the Agreement) acceptable to and in form and substance
reasonably satisfactory to the Depositor and the Trustee certifying to the
Depositor and the Trustee the facts surrounding such transfer, which investment
letter shall not be an expense of the Trustee 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 this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Certificate set forth on
the
reverse hereof, which further provisions shall for all purposes have the
same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory
of the
Trustee.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
_______ __, 2006
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
not
in its individual capacity, but solely as Trustee
|
||||||||||||||
|
By:
|
||||||||||||||
|
Countersigned:
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory of
DEUTSCHE
BANK NATIONAL TRUST
COMPANY, not in its individual
capacity,
but
solely as Trustee
|
|||||||||||||
INDYMAC
MBS, INC.
IndyMac
Residential Mortgage-Backed Trust 2006-L3,
Mortgage-Backed
Certificates, Series 2006-L3
This
Certificate is one of a duly authorized issue of Certificates designated
as
IndyMac MBS, Inc., IndyMac Residential Mortgage-Backed Trust 2006-L3, Mortgage
Backed Certificates, Series 2006-L3 (herein collectively called the
“Certificates”), and representing a beneficial ownership interest in the Trust
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 then the first Business
Day following such Distribution Date (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.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office or agency of
the
Trustee 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 and of Holders of the requisite
percentage of the Percentage Interests of each Class of Certificates affected
by
such amendment, as specified 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 office or agency maintained by the Trustee accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust 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
Servicer, the Depositor 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 none of the Depositor, the Servicer, the
Trustee or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date on which the aggregate Stated Principal
Balance of the Mortgage Loans and REO Properties as of the last day of the
related Remittance Period is less than 10% of the sum of the Stated Principal
Balances of the Closing Date Mortgage Loans and REO Properties on the Cut-off
Date, the Servicer or if the Servicer fails to exercise such option and any
portion of the Class A Certificates remain outstanding, the Certificate Insurer,
will have the right to repurchase, in whole, from the Trust all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans
at a
purchase price determined as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
10.01 of the Agreement.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
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.
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.
|
||||
|
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]
EXHIBIT
B
COPY
OF
CERTIFICATE GUARANTY INSURANCE POLICY WITH RESPECT TO THE INSURED
CERTIFICATES
CERTIFICATE
GUARANTY INSURANCE POLICY ENDORSEMENT
|
Attached
to and forming part of
Certificate
Guaranty Insurance Policy
No.
AB1028BE issued to:
|
Effective
Date of Endorsement:
September
25, 2006
|
Deutsche
Bank National Trust Company,
as
Trustee for the Holders of
IndyMac
Residential Mortgage-Backed Trust,
Series
2006-L3, Class A Certificates
For
all
purposes of the Policy, the following terms shall have the following
meanings:
“Affiliate”
shall mean with respect to any specified Person, any other Person controlling
or
controlled by or under common control with such specified Person. For the
purposes of this definition, “control” when used with respect to any Person
means the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.
“Agreement”
shall mean, for purposes of the Policy, the Pooling and Servicing Agreement,
dated as of September 1, 2006, among Indymac MBS, Inc., as the Depositor,
Indymac Bank, F.S.B., as the Seller and Servicer, and Deutsche Bank National
Trust Company, as the Trustee.
“Business
Day” shall mean any day other than (i) a Saturday or Sunday or (ii) a day on
which banking institutions in the state of New York or the state of California
or the city in which the Corporate Trust Office or the office of the Insurer
is
located are required or authorized by law or executive order to be
closed.
“Class
A
Certificates” shall mean any one of the IndyMac Residential Mortgage-Backed
Certificates, Series 2006-L3, substantially in the form set forth as Exhibits
X-0, X-0 and A-3 to the Agreement.
“Deficiency
Amount” shall mean for any Distribution Date, an amount equal to the sum of (1)
the aggregate amount by which the Accrued Certificate Interest payable
to the
Class A Certificates for such Distribution Date exceeds the Interest Remittance
Amount available on such Distribution Date to pay the Class A Certificates,
and
(2) (i) with respect to any Distribution Date other than the Final Distribution
Date, the aggregate amount, if any, by which the aggregate Certificate
Principal
Balance of the Class A Certificates (after giving effect to all distributions
of
Available Funds on such Distribution Date) exceeds the aggregate Stated
Principal Balance of the Mortgage Loans on the last day of the related
Remittance Period and (ii) with respect to the Final Distribution Date,
the
aggregate Certificate Principal Balance of the Class A Certificates (after
giving effect to all distributions of Available Funds on such Distribution
Date). Notwithstanding anything to the contrary contained herein, the aggregate
Deficiency Amount described above which may be paid under the Policy shall
not
exceed the Maximum Insured Amount.
“Distribution
Date” shall mean the 25th day of each month (or if such day is not a Business
Day the next Business Day immediately following) beginning with the First
Distribution Date.
“Due
for
Payment” shall mean, (i) with respect to an Insured Amount, the Distribution
Date on which Insured Amounts are due and payable pursuant to the terms
of the
Agreement and (ii) with respect to a Preference Amount, the Business Day
on
which the documentation required by the Insurer has been received by the
Insurer.
“Final
Distribution Date” shall mean the Distribution Date occurring in April
2012.
“First
Distribution Date” shall mean October 25, 2006.
“Holder”
shall mean the registered owner or beneficial owner of a Class A Certificate,
other than the Depositor, the Seller, the Servicer or the Trustee or any
of
their Affiliates.
“Insurance
Account” shall mean the account created and maintained with the Trustee for the
benefit of the Holders and the Insurer pursuant to Section 4.06 of the
Agreement.
“Insurance
Agreement” shall mean the Insurance and Indemnity Agreement, dated as of
September 25, 2006, among IndyMac MBS, Inc., as the Depositor, IndyMac
Bank,
F.S.B., as the Sponsor, the Seller and the Servicer, and Deutsche Bank
National
Trust Company, as Trustee, the Insurer, as such agreement may be amended,
modified or supplemented from time to time.
“Insured
Amount” shall mean, with respect to any Distribution Date, the Deficiency Amount
for such Distribution Date.
“Insured
Payments” shall mean, with respect to any Distribution Date, the aggregate
amount actually paid by the Insurer to, or at the direction of, the Trustee
in
respect of (i) Insured Amounts for a Distribution Date and (ii) Preference
Amounts for any given Business Day.
“Insurer”
shall mean Ambac Assurance Corporation, or any successor thereto, as issuer
of
the Policy.
“Late
Payment Rate” shall mean for any Distribution Date, the lesser of (i) the
greater of (a) the rate of interest, as it is publicly announced by Citibank,
N.A. at its principal office in New York, New York as its prime rate (any
change
in such prime rate of interest to be effective on the date such change
is
announced by Citibank, N.A.) plus 2% and (b) the then applicable highest
rate of
interest on any of the Class A Certificates and (ii) the maximum rate
permissible under applicable usury or similar laws limiting interest rates.
The
Late Payment Rate shall be computed on the basis of the actual number of
days
elapsed over a year of 360 days.
“Maximum
Insured Amount” shall mean $167,790,000 in respect of principal, plus interest
thereon calculated at the Pass-Through Rate for the Class A
Certificates.
“Nonpayment”
shall mean, with respect to any Distribution Date, an Insured Amount is
Due for
Payment but has not been paid pursuant to the Agreement.
“Notice”
shall mean the telephonic or telegraphic notice, promptly confirmed in
writing
by telecopy substantially in the form of Exhibit A to the Policy, the original
of which is subsequently delivered by registered or certified mail, from
the
Trustee specifying the Insured Amount or Preference Amount which shall
be due
and owing on the applicable Distribution Date.
“Person”
shall mean any individual, corporation, estate, partnership, joint venture,
association, joint stock company, trust (including any beneficiary thereof),
unincorporated organization or government or any agency or political subdivision
thereof.
“Policy”
shall mean the Certificate Guaranty Insurance Policy No. AB1028BE together
with
each and every endorsement hereto.
“Pooling
and Servicing Agreement” shall mean the Pooling and Servicing Agreement, dated
as of September 1, 2006 by and among IndyMac Bank, F.S.B., as the Seller
and the
Servicer, IndyMac MBS, Inc., as the Depositor, and Deutsche Bank National
Trust
Company, as Trustee.
“Preference
Amount” shall mean any payment of principal or interest previously distributed
to a Holder on a Class A Certificate, which would have been covered under
the
Policy as an Insured Amount, which has been deemed a preferential transfer
and
was previously recovered from its owner pursuant to the United States Bankruptcy
Code in accordance with a final, non-appealable order a court of competent
jurisdiction.
“Reimbursement
Amount” shall mean, as to any Distribution Date, the sum of (x) (i) all Insured
Payments paid by the Insurer, but for which the Insurer has not been reimbursed
prior to such Distribution Date pursuant to the Agreement, plus (ii) interest
accrued on such Insured Payments not previously repaid, calculated at the
Late
Payment Rate from the date the Trustee received the related Insured Payments,
and (y) without duplication (i) any amounts then due and owing to the Insurer
under the Insurance Agreement, as certified to the Trustee by the Insurer
plus
(ii) interest on such amounts at the Late Payment Rate.
“Relief
Act Shortfalls” shall mean interest shortfalls resulting from the application of
the Servicemembers Relief Act, as amended, or any similar state law.
“Trustee”
shall mean Deutsche Bank National Trust Company, or its successor-in-interest,
in its capacity as Trustee under the Agreement, or if any successor trustee
shall be appointed as provided therein, then “Trustee” shall also mean such
successor trustee, subject to the provisions thereof.
Capitalized
terms used herein as defined terms and not otherwise defined herein shall
have
the meaning assigned to them in the Insurance Agreement and the Agreement,
without regard to any amendment or modification thereof, unless such amendment
or modification has been approved in writing by the Insurer.
Notwithstanding
any other provision of the Policy, the Insurer will pay any Insured Amount
payable hereunder no later than 12:00 noon, New York City time, on the
later of
(i) the second Business Day following receipt in New York, New York on
a
Business Day by the Insurer of a Notice at the address and in the manner
provided in Section 6.02 of the Insurance Agreement and (ii) the Distribution
Date on which the related Insured Amount is Due for Payment; provided that,
if
such Notice is received after 12:00 noon, New York City time, on such Business
Day, it shall be deemed to be received on the following Business Day. If
any
such Notice is not in proper form or is otherwise insufficient for the
purpose
of making a claim under the Policy, it shall be deemed not to have been
received
for purposes of this paragraph, and the Insurer shall promptly so advise
the
Trustee and the Trustee may submit an amended or corrected Notice.
If
such
an amended or corrected Notice is in proper form and is otherwise sufficient
for
the purpose of making a claim under the Policy, it will be deemed to have
been
timely received on the business day of such resubmission, provided that,
if such
Notice is received after 12:00 noon, New York City time, on such Business
Day,
it will be deemed to be received before 12:00 noon on the following Business
Day.
The
Insurer’s obligations under the Policy with respect to Insured Amounts will be
discharged to the extent funds are transferred to the Trustee as provided
in the
Policy, whether or not the funds are properly applied by the
Trustee.
The
Insurer will pay any Preference Amount when due to be paid pursuant to
the Order
(as defined below), but in any event no earlier than the third Business
Day
following receipt by the Insurer of (i) a certified copy of a final,
non-appealable order of a court or other body exercising jurisdiction in
such
insolvency proceeding to the effect that the Trustee, or Holder, as applicable,
is required to return such Preference Amount paid during the term of the
Policy
because such payments were avoided as a preferential transfer or otherwise
rescinded or required to be restored by the Trustee and/or Holder, as applicable
(the “Order”), (ii) an opinion of counsel satisfactory to the Insurer, stating
that such Order has been entered and is final and not subject to any stay,
(iii)
an assignment, in form and substance satisfactory to the Insurer, duly
executed
and delivered by the Trustee or Holder, irrevocably assigning to the Insurer
all
rights and claims of the Trustee and/or such Holder relating to or arising
under
the Agreement or otherwise with respect to such Preference Amount, (iv)
appropriate instruments in form satisfactory to the Insurer to effect the
appointment of the Insurer as agent for the Trustee and such Holder in
any legal
proceeding relating to such Preference Amount and (v) a Notice (in the
form
attached hereto as Exhibit A) appropriately completed and executed by the
Trustee; provided, that if such documents are received after 12:00 noon,
New
York City time, on such Business Day, they will be deemed to be received
on the
following Business Day; provided, further, that the Insurer shall not be
obligated to make any payment in respect of any Preference Amount representing
a
payment of principal on the Class A Certificates prior to the time the
Insurer
would have been required to make a payment in respect of such principal
pursuant
to the first paragraph of the face of the Policy; provided, further, that
any
Preference Amount that constitutes interest will be limited to the amount
of
interest on the outstanding principal amount of the Class A Certificates
(calculated at the related Pass-Through Rate) accrued as of the last day
of the
applicable interest accrual period and will not, in any event, include
any
interest on the Class A Certificates accrued after such date or any interest
on
such interest amount. Such payment shall be disbursed to the receiver,
conservator, debtor-in-possession or trustee in bankruptcy named in the
Order,
and not to the Holder directly, unless the Holder has made a payment of
the
Preference Amount to the court or such receiver, conservator,
debtor-in-possession or trustee in bankruptcy named in the Order, in which
case
the Insurer will pay the Holder, subject to the delivery of (a) the items
referred to in clauses (i), (ii), (iii), (iv) and (v) above to the Insurer
and
(b) evidence satisfactory to the Insurer that payment has been made to
such
court or receiver, conservator, debtor-in-possession or trustee in bankruptcy
named in the Order.
Upon
any
payment under the Policy, in furtherance and not in limitation of the Insurer’s
equitable right of subrogation and the Insurer’s rights under the Insurance
Agreement, the Insurer will, to the extent of such payment by the Insurer
under
the Policy, be subrogated to the rights of any Holder, to receive any and
all
amounts due in respect of such Class A Certificates as to which such payment
under the Policy was made, to the extent of any payment by the Insurer
under the
Policy.
The
Insurer hereby agrees that if it shall be subrogated to the rights of Holders
by
virtue of any payment under the Policy, no recovery of such payment will
occur
unless the full amount of the Holders’ allocable distributions for such
Distribution Date can be made. In so doing, the Insurer does not waive
its
rights to seek full payment of all Reimbursement Amounts owed to it under
the
Insurance Agreement and the Agreement.
The
Policy does not cover Net WAC Cap Carry Forward Amounts, Net WAC Shortfalls,
Net
Interest Shortfalls, default interest, premiums, if any, allocated to or
payable
in respect of the Class A Certificates, nor does the Policy guarantee to
the
Holders any particular rate of principal payment. In addition, the Policy
does
not cover shortfalls, if any, attributable to the liability of the Issuer,
any
REMIC thereof, the Trustee or any Holder for withholding taxes, if any,
(including interest and penalties in respect of any liability for withholding
taxes) or any risk other than Nonpayment, including the failure of the
Trustee
or any Paying Agent to make any payment required under the Agreement to
the
Holders.
The
terms
and provisions of the Agreement constitute the instrument of assignment
referred
to in the second paragraph of the face of the Policy.
A
premium
will be payable on the Policy on each Distribution Date as provided in
Section
3.02 of the Insurance Agreement, beginning with the First Distribution
Date, in
an amount equal to the Premium Amount. The premium on the Policy is not
refundable for any reason, including the payment of any Class A Certificates
prior to their maturities.
IN
THE EVENT THAT AMBAC ASSURANCE CORPORATION WERE TO BECOME INSOLVENT, ANY
CLAIMS
ARISING UNDER THE POLICY WOULD BE EXCLUDED FROM COVERAGE BY THE CALIFORNIA
INSURANCE GUARANTY ASSOCIATION.
The
Policy to which this endorsement is attached and of which it forms a part
is
hereby amended to provide that there shall be no acceleration payment due
under
the Policy unless such acceleration is at the sole option of the Insurer.
In the
event of a payment default or insolvency of the Trust, there shall be no
acceleration of payments required to be made under the Policy with respect
to
the Class A Certificates except at the option of the Insurer.
Nothing
herein contained shall be held to vary, alter, waive or extend any of the
terms,
conditions, provisions, agreements or limitations of the above mentioned
Policy
other than as above stated.
To
the
fullest extent permitted by applicable law, the Insurer hereby waives and
agrees
not to assert any and all rights and defenses (including but not limited
to
set-offs, counterclaims, fraud in the inducement or fact or any other
circumstances that would have the effect of discharging a surety at law
or in
equity), to the extent such rights and defenses may be available to the
Insurer
to avoid payment of its obligations under the Policy in accordance with
the
express provisions hereof. None of the foregoing waivers shall prejudice
any
claim the Insurer may have, whether directly or as subrogee of the Class
A
Certificateholders, subsequent to making such payment to the Trustee in
accordance with this Policy.
To
the
extent the provisions of this endorsement conflict with the provisions
in the
above-mentioned Policy, the provisions of this endorsement shall
govern.
The
Policy and the obligations of the Insurer thereunder will terminate without
any
action on the part of the Insurer or any other person on the date that
is one
year and one day following the earlier to occur of (i) the date on which
all
amounts required to be paid on the Class A Certificates have been paid
in full
and (ii) if any proceedings requisite to avoidance as a Preference Payment
have
been commenced on or prior to the date specified in clause (i) above, the
30th
day after the entry of a final and nonappealable order in resolution or
settlement of each such proceeding. Upon termination of the Policy, the
Trustee
shall deliver the original of the Policy to the Insurer.
No
person
other than the Trustee shall be entitled to present the Notice.
No
waiver
of any rights or powers of the Insurer, the Holders or the Trustee or consent
by
any of them shall be valid unless signed by an authorized officer or agent
thereof.
The
Policy is issued under and pursuant to, and shall be construed in accordance
with, the laws of the State of New York, without giving effect to the conflict
of laws principles thereof.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, Ambac Assurance Corporation has caused this endorsement
to the
Policy to be signed by its duly authorized officers.
________________________________
___________________________________
Assistant
Secretary
First
Vice President
EXHIBIT
A
TO
THE
CERTIFICATE GUARANTY INSURANCE POLICY
Policy
No. AB1028BE
NOTICE
OF NONPAYMENT AND DEMAND
FOR
PAYMENT OF INSURED AMOUNTS
Date:
[ ]
Ambac
Assurance Corporation
Xxx
Xxxxx
Xxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
General Counsel
Reference
is made to Certificate Guaranty Insurance Policy No. AB1028BE (the “Policy”)
issued by Ambac Assurance Corporation (“Ambac”). Terms capitalized herein and
not otherwise defined shall have the meanings specified in the Policy and
the
Pooling and Servicing Agreement, dated as of September 1, 2006 (the
“Agreement”), between IndyMac Bank, F.S.B., as the Seller and the Servicer,
IndyMac MBS, Inc., as the Depositor, and Deutsche Bank National Trust Company,
as Trustee, as the case may be, unless the context otherwise requires.
The
Trustee hereby certifies as follows:
| 1. |
The
Trustee is the Trustee under the Agreement for the
Holders.
|
| 2. |
The
relevant Distribution Date is [date].
|
| 3. |
Payment
on the Class A Certificates in respect of the Distribution Date
is due to
be received on _________________________ under the Agreement
in an amount
equal to $_________.
|
| 4. |
There
is an [Insured Amount] [Preference Amount] of $______________
in respect
of the Class A Certificates, which amount is Due for Payment
pursuant to
the terms of the Agreement.
|
| 5. |
The
Trustee has not heretofore made a demand for the Insured Amount
in respect
of the Distribution Date.
|
| 6. |
The
Trustee hereby requests the payment of the [Insured Amount] [Preference
Amount] that is Due For Payment be made by Ambac under the Policy
and
directs that payment under the Policy be made to the following
account by
bank wire transfer of federal or other immediately available
funds in
accordance with the terms of the Policy to: ______________________________
(Trustee’s account number).
|
| 7. |
The
Trustee hereby agrees that, following receipt of the [Insured
Amount]
[Preference Amount] from Ambac, it shall (a) hold such amounts
in trust
and apply the same directly to the distribution of payment on
the Class A
Certificates when due; (b) not apply such funds for any other
purpose; (c)
deposit such funds to the Insurance Account and not commingle
such funds
with other funds held by Trustee and (d) maintain an accurate
record of
such payments with respect to each certificate and the corresponding
claim
on the Policy and proceeds thereof.
|
FOR
YOUR PROTECTION CALIFORNIA LAW REQUIRES THE FOLLOWING TO APPEAR ON THIS
FORM.
ANY PERSON WHO KNOWINGLY PRESENTS A FALSE OR FRAUDULENT CLAIM FOR THE PAYMENT
OF
A LOSS IS GUILTY OF A CRIME AND MAY BE SUBJECT TO FINES AND CONFINEMENT
IN STATE
PRISON.
By:________________________________
Trustee
Title:_______________________________
(Officer)
EXHIBIT
C
FORM
OF
MORTGAGE LOAN PURCHASE AGREEMENT
INDYMAC
BANK, F.S.B.,
as
Seller
and
INDYMAC
MBS, INC.,
as
Purchaser
MORTGAGE
LOAN PURCHASE AGREEMENT
Dated
as
of September 25, 2006
INDYMAC
RESIDENTIAL MORTGAGE-BACKED TRUST CERTIFICATES,
SERIES
2006-L3
Table
of Contents
ARTICLE
I
DEFINITIONS
Section
1.01 Definitions
ARTICLE
II
SALE
OF
MORTGAGE LOANS; PAYMENT OF PURCHASE PRICE
Section
2.01 Sale
of Mortgage Loans.
Section
2.02 Obligations
of Seller Upon Sale
Section
2.03 Payment
of Purchase Price for the Mortgage Loans.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES; REMEDIES FOR BREACH
Section
3.01 Seller
Representations and Warranties Relating to the Mortgage Loans
Section
3.02 Seller
Representations and Warranties Relating to the Seller
Section
3.03 Remedies
for Breach of Representations and Warranties
ARTICLE
IV
SELLER’S
COVENANTS
Section
4.01 Covenants
of the Seller
ARTICLE
V
INDEMNIFICATION
WITH RESPECT TO THE MORTGAGE LOANS
Section
5.01 Indemnification.
ARTICLE
VI
TERMINATION
Section
6.01 Termination
ARTICLE
VII
MISCELLANEOUS
PROVISIONS
Section
7.01 Amendment
Section
7.02 Governing
Law
Section
7.03 Notices
Section
7.04 Severability
of Provisions
Section
7.05 Counterparts
Section
7.06 Further
Agreements
Section
7.07 Intention
of the Parties
Section
7.08 Successors
and Assigns: Assignment of Purchase Agreement
Section
7.09 Survival
Section
7.10 Third
Party Beneficiary
MORTGAGE
LOAN PURCHASE AGREEMENT, dated as of September 19, 2006 (this “Agreement”),
between IndyMac Bank, F.S.B. (the “Seller”) and IndyMac MBS, Inc. (the
“Purchaser”).
W
I T
N E S S E T H
WHEREAS,
the Seller is the owner of (i) the notes or other evidence of indebtedness
(the
“Mortgage Notes”) as indicated on Schedule I hereto referred to below, and the
other documents or instruments constituting the Mortgage File (collectively,
the
“Mortgage Loans”); and
WHEREAS,
the Seller, as of the date hereof, owns the mortgages (the “Mortgages”) on the
properties (the “Mortgaged Properties”) securing such Mortgage Loans, including
rights to (a) any property acquired by foreclosure or deed in lieu of
foreclosure or otherwise and (b) the proceeds of any insurance policies
covering
the Mortgage Loans or the obligors on the Mortgage Loans; and
WHEREAS,
the parties hereto desire that the Seller sell the Mortgage Loans to the
Purchaser pursuant to the terms of this Agreement; and
WHEREAS,
pursuant to the terms of a Pooling and Servicing Agreement, dated as of
September 1, 2006 (the “Pooling and Servicing Agreement”), among the Purchaser
as depositor, the Seller as seller and servicer and Deutsche Bank National
Trust
Company as trustee (the “Trustee”), relating to IndyMac Residential
Mortgage-Backed Trust Certificates, Series 2006-L3, the Purchaser will
convey
the Mortgage Loans to the trust created therein (the “Trust”); and
WHEREAS,
the Seller is obligated, in connection with the transactions contemplated
by
this Agreement, to make certain representations, warranties and covenants
with
respect to itself and the Mortgage Loans.
NOW,
THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.01 Definitions.
All
capitalized terms used but not defined herein shall have the meanings assigned
thereto in the Pooling and Servicing Agreement.
ARTICLE
II
SALE
OF
MORTGAGE LOANS;
PAYMENT
OF PURCHASE PRICE
Section
2.01 Sale
of Mortgage Loans.
The
Seller, concurrently with the execution and delivery of this Agreement,
does
hereby sell, assign, set over, and otherwise convey to the Purchaser, without
recourse, (i) all of its right, title and interest in and to each Mortgage
Loan,
including the related Principal Balance as of the Cut-off Date, (ii) all
interest accruing thereon on or after the Cut-off Date and all collections
in
respect of interest and principal due after the Cut-off Date, (iii) its
interest
in any insurance policies in respect of the Mortgage Loans and (iv) all
proceeds
of any of the foregoing.
Section
2.02 Obligations
of Seller Upon Sale.
In
connection with any transfer pursuant to Section 2.01 hereof, the Seller
agrees,
at its own expense, on or prior to the Closing Date, (i) to cause its books
and
records to indicate that the Mortgage Loans have been sold to the Purchaser
pursuant to this Agreement and (ii) to deliver to the Purchaser and the
Trustee
an electronic data file containing a true and complete list of all such
Mortgage
Loans, specifying for each such Mortgage Loan, as of the Cut-off Date,
those
data fields as required in the Pooling and Servicing Agreement. Such file,
which
forms a part of Exhibit D to the Pooling and Servicing Agreement, shall
also be
marked as Schedule I to this Agreement and is hereby incorporated into
and made
a part of this Agreement.
In
connection with any conveyance by the Seller, the Seller shall on behalf
of the
Purchaser deliver to, and deposit with, the Trustee, as assignee of the
Purchaser, or to the Custodian, on or before the Closing Date, the following
documents or instruments, which documents and instruments will comply with
the
requirements of the Pooling and Servicing Agreement notwithstanding any
provision to the contrary below:
(i) the
original Mortgage Note, endorsed either (A) in blank or (B) in the following
form: “Pay to the order of Deutsche Bank National Trust Company, as Trustee,
without recourse”, or with respect to any lost Mortgage Note, an original Lost
Note Affidavit stating that the original Mortgage Note was lost, misplaced
or
destroyed, together with a copy of the related Mortgage Note; provided,
however,
that
such substitutions of Lost Note Affidavits for original Mortgage Notes
may occur
only with respect to Mortgage Loans, the aggregate Stated Principal Balance
of
which is less than or equal to 2.00% of the Pool Balance as of the Cut-off
Date;
(ii) the
original Mortgage with evidence of recording thereon, and the original
recorded
power of attorney, if the Mortgage was executed pursuant to a power of
attorney,
with evidence of recording thereon or, if such Mortgage or power of attorney
has
been submitted for recording but has not been returned from the applicable
public recording office, has been lost or is not otherwise available, a
copy of
such Mortgage or power of attorney, as the case may be, certified to be
a true
and complete copy of the original submitted for recording;
(iii) an
original Assignment, in form and substance acceptable for recording. The
Mortgage shall be assigned either (A) in blank or (B) to “Deutsche Bank National
Trust Company, as Trustee, without recourse”;
(iv) an
original copy of any intervening Assignment, showing a complete chain of
assignments;
(v) the
original or a certified copy of the lender’s title insurance policy;
and
(vi) the
original or copies of each assumption, modification, written assurance
or
substitution agreement, if any.
With
respect to up to 30% of the Mortgage Loans, the Seller may deliver all
or a
portion of each related Mortgage File to the Trustee not later than five
Business Days after the Closing Date (such Mortgage Loans, the “Delayed Delivery
Mortgage Loans”).
The
Seller hereby confirms to the Purchaser and the Trustee that it has made
the
appropriate entries in its general accounting records, to indicate that
such
Mortgage Loans have been transferred to the Trustee and constitute part
of the
Trust in accordance with the terms of the Pooling and Servicing
Agreement.
If
any of
the documents referred to in Section 2.02(ii), (iii) or (iv) above has
as of the
Closing Date been submitted for recording but either (A) has not been returned
from the applicable public recording office or (B) has been lost or such
public
recording office has retained the original of such document, the obligations
of
the Seller to deliver such documents shall be deemed to be satisfied upon
(1)
delivery to the Trustee or the Custodian no later than the Closing Date
of a
copy of each such document certified by the Seller in the case of (A) above
or
the applicable public recording office in the case of (B) above to be a
true and
complete copy of the original that was submitted for recording and (2)
if such
copy is certified by the Seller, delivery to the Trustee or the Custodian,
promptly upon receipt thereof of either the original or a copy of such
document
certified by the applicable public recording office to be a true and complete
copy of the original. If the original lender’s title insurance policy, or a
certified copy thereof, was not delivered pursuant to Section 2.02(v) above,
the
Seller shall deliver or cause to be delivered to the Trustee or a Custodian,
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 a certified copy thereof to be delivered to the Trustee or
the
Custodian, promptly upon receipt thereof. The Seller shall deliver or cause
to
be delivered to the Trustee or the Custodian promptly upon receipt thereof
any
other documents constituting a part of a Mortgage File received with respect
to
any Mortgage Loan, including, but not limited to, any original documents
evidencing an assumption or modification of any Mortgage Loan.
Upon
discovery or receipt of notice of any materially defective document in,
or that
a document is missing from, a Mortgage File, the Seller shall have 90 days
to
cure such defect or deliver such missing document to the Trustee or the
Custodian. If the Seller does not cure such defect or deliver such missing
document within such time period, the Seller shall either repurchase or
substitute for such Mortgage Loan in accordance with Section 2.03 of the
Pooling
and Servicing Agreement.
The
Purchaser hereby acknowledges its acceptance of all right, title and interest
to
the Mortgage Loans and other property, now existing and hereafter created,
conveyed to it pursuant to Section 2.01.
The
Seller shall cause the Assignments which were delivered in blank to be
completed
and shall cause all Assignments referred to in Section 2.02(iii) hereof
and, to
the extent necessary, in Section 2.02(iv) hereof to be recorded. The Seller
shall be required to deliver such Assignments for recording within 30 days
of
the Closing Date. The Seller shall furnish the Trustee, or its designated
agent,
with a copy of each Assignment submitted for recording. In the event that
any
such Assignment is lost or returned unrecorded because of a defect therein,
the
Seller shall promptly have a substitute Assignment prepared or have such
defect
cured, as the case may be, and thereafter cause each such Assignment to
be duly
recorded.
Notwithstanding
the foregoing, the Seller shall not cause to be recorded any Assignment
which
relates to a Mortgage Loan secured by a Mortgaged Property in California
or in
any other jurisdiction where the Rating Agencies do not require recordation
in
order to receive the ratings on the Certificates at the time of their initial
issuance (which, in the case of the Insured Certificates, shall be without
regard to the Policy); provided,
however,
that
each Assignment shall be submitted for recording by the Seller in the manner
described above, at no expense to the Trust Fund or Trustee, upon the earliest
to occur of: (i) direction by the Holders of the Certificates entitled
to at
least 25% of the Voting Rights, (ii) the occurrence of a Servicer Event
of
Termination, (iii) the occurrence of a bankruptcy or insolvency relating
to the
Seller, (iv) the occurrence of a servicing transfer as described in Section
7.02
of the Pooling and Servicing Agreement and (v) if the Seller is not the
Servicer
and with respect to any one Assignment, the occurrence of a bankruptcy,
insolvency or foreclosure relating to the Mortgagor under the related
Mortgage.
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 Article II
for
each Delayed Delivery Mortgage Loan; or
(y)(A) repurchase
the Delayed Delivery Mortgage Loan or (B) substitute a Qualified Substitute
Mortgage Loan for a Delayed Delivery Mortgage Loan, which repurchase or
substitution shall be accomplished in the manner and subject to the conditions
herein (treating each such Delayed Delivery Mortgage Loan as a Deleted
Mortgage
Loan for purposes of Section 3.03);
provided,
however, that if the Seller fails to deliver a Mortgage File for any Delayed
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 Delayed Delivery Mortgage Loan; provided, further, that the cure
period
provided for herein and in the Pooling and Servicing Agreement shall not
apply
to the initial delivery of the Mortgage File for such Delayed Delivery
Mortgage
Loan, but rather the Seller shall have five (5) Business Days to cure such
failure to deliver.
Section
2.03 Payment
of Purchase Price for the Mortgage Loans.
In
consideration of the sale of the Mortgage Loans to be purchased hereunder,
the
Purchaser shall pay to or upon the order of the Seller on the Closing Date
the
purchase price thereof (the “Mortgage Loan Purchase Price”) by transfer to the
Seller of (i) immediately available funds in an amount equal to the net
sale
proceeds of the Class A Certificates and (ii) the Class M Certificates,
the
Class B Certificates, the Class C Certificates and the Class R Certificates
(the
“IndyMac Certificates”). The Seller shall pay, and be billed directly for, all
expenses incurred by the Purchaser in connection with the issuance of the
Certificates, including, without limitation, printing fees incurred in
connection with the Prospectus Supplement relating to the Class A Certificates
and the Class M Certificates and the Private Placement Memorandum relating
to
the Class B Certificates, fees and expenses of Purchaser’s counsel, accountant’s
fees and expenses and the fees and expenses of the Trustee and the Certificate
Insurer and other out-of-pocket costs, if any.
ARTICLE
III
REPRESENTATIONS
ANDWARRANTIES; REMEDIES FOR BREACH
Section
3.01 Seller
Representations and Warranties Relating to the Mortgage Loans.
The
Seller hereby makes representations and warranties, as set forth in Exhibit
A
hereof, to the Purchaser with respect to the Mortgage Loans as of the Closing
Date or as of such other date specifically provided herein.
Section
3.02 Seller
Representations and Warranties Relating to the Seller.
The
Seller represents, warrants and covenants to the Purchaser as of the Closing
Date:
(i) The
Seller is duly organized, validly existing and in good standing as a federal
savings bank under the laws of the United States and is licensed, qualified
and
in good standing in each state in which any Mortgaged Property is located
if the
laws of such state require licensing or qualification in order to conduct
business of the type conducted by the Seller or to ensure the enforceability
or
validity of each Mortgage Loan in accordance with the terms of this
Agreement;
(ii) The
Seller has the full power and authority to hold each Mortgage Loan, to
sell each
Mortgage Loan, to execute, deliver and perform, and to enter into and
consummate, all transactions contemplated by this Agreement. The Seller
has duly
authorized the execution, delivery and performance of this Agreement and
has
duly executed and delivered this Agreement. This Agreement, assuming due
authorization, execution and delivery by the Purchaser, constitutes a legal,
valid and binding obligation of the Seller, enforceable against it in accordance
with its terms except as the enforceability thereof may be limited by
bankruptcy, insolvency or reorganization. At the time of the sale of each
Mortgage Loan by the Seller, the Seller had the full power and authority
to hold
each Mortgage Loan and to sell each Mortgage Loan;
(iii) The
execution and delivery of this Agreement by the Seller and the performance
of
and compliance with the terms of this Agreement will not violate the Seller’s
charter or by-laws or constitute a default under or result in a breach
or
acceleration of, any material contract, agreement or other instrument to
which
the Seller is a party or which may be applicable to the Seller or its
assets;
(iv) The
Seller is not in violation of, and the execution and delivery of this Agreement
by the Seller and its performance and compliance with the terms of this
Agreement will not constitute a violation with respect to, any order or
decree
of any court or any order or regulation of any federal, state, municipal
or
governmental agency having jurisdiction over the Seller or its assets,
which
violation might have consequences that would materially and adversely affect
the
condition (financial or otherwise) or the operation of the Seller or its
assets
or might have consequences that would materially and adversely affect the
performance of its obligations and duties hereunder;
(v) The
Seller does not believe, nor does it have any reason or cause to believe,
that
it cannot perform each and every covenant contained in this
Agreement;
(vi) There
are
no actions or proceedings against, or investigations known to it of, the
Seller
before any court, administrative or other tribunal (A) that might prohibit
its
entering into this Agreement, (B) seeking to prevent the sale of the Mortgage
Loans or the consummation of the transactions contemplated by this Agreement
or
(C) that might prohibit or materially and adversely affect the performance
by
the Seller of its obligations under, or validity or enforceability of,
this
Agreement;
(vii) No
consent, approval, authorization or order of any court or governmental
agency or
body is required for the execution, delivery and performance by the Seller
of,
or compliance by the Seller with, this Agreement or the consummation of
the
transactions contemplated by this Agreement, except for such consents,
approvals, authorizations or orders, if any, that have been
obtained;
(viii) The
consummation of the transactions contemplated by this Agreement are in
the
ordinary course of business of the Seller, and the transfer, assignment
and
conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant
to
this Agreement are not subject to the bulk transfer or any similar statutory
provisions;
(ix) The
information delivered by the Seller to the Purchaser with respect to the
Seller’s loan loss, foreclosure and delinquency experience on mortgage loans
underwritten to similar standards as the Mortgage Loans and covering mortgaged
properties similar to the Mortgaged Properties, is true and correct in
all
material respects as of the date of such report;
(x) Except
with respect to any statement regarding the intentions of the Purchaser,
or any
other statement contained herein, the truth or falsity of which is dependent
solely upon the actions of the Purchaser, this Agreement does not contain
any
untrue statement of material fact or omit to state a material fact necessary
to
make the statements contained herein not misleading. The written statements,
reports and other documents prepared and furnished or to be prepared and
furnished by the Seller pursuant to this Agreement or in connection with
the
transactions contemplated hereby and by the Pooling and Servicing Agreement,
taken in the aggregate, do not contain any untrue statement of material
fact or
omit to state a material fact necessary to make the statements contained
therein
not misleading;
(xi) The
Seller has not transferred the Mortgage Loans to the Purchaser with any
intent
to hinder, delay or defraud any of its creditors;
(xii) The
Seller has not dealt with any broker, investment banker, agent or other
person,
except for the Purchaser or any of its affiliates, that may be entitled
to any
commission or compensation in connection with the sale of the Mortgage
Loans
(except that an entity that previously financed the Seller’s ownership of the
Mortgage Loans may be entitled to a fee to release its security interest
in the
Mortgage Loans, which fee shall have been paid and which security interest
shall
have been released on or prior to the Closing Date); and
(xiii) There
is
no litigation currently pending or, to the best of the Seller’s knowledge,
threatened against the Seller that would reasonably be expected to adversely
affect the transfer of the Mortgage Loans, the issuance of the Certificates
or
the execution, delivery, performance or enforceability of this Agreement
or the
Pooling and Servicing Agreement, or that would result in a material adverse
change in the financial condition of the Seller.
Section
3.03 Remedies
for Breach of Representations and Warranties.
It is
understood and agreed that the representations and warranties set forth
in
Sections 3.01 and 3.02 shall survive the sale of the Mortgage Loans to the
Purchaser and shall inure to the benefit of the Purchaser, notwithstanding
any
restrictive or qualified endorsement on any Mortgage Note or Assignment
or the
examination or lack of examination of any Mortgage File. Upon discovery
by
either the Seller or the Purchaser of a breach of any of the foregoing
representations and warranties that materially and adversely affects the
value
of the Mortgage Loans or the interest of the Purchaser (or which materially
and
adversely affects the interests of the Purchaser in the related Mortgage
Loan in
the case of a representation and warranty relating to a particular Mortgage
Loan), the party discovering such breach shall give prompt written notice
to the
others. 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.
Within
90
days of the earlier of either discovery by or notice to the Seller of any
breach
of a representation or warranty made by the Seller that materially and
adversely
affects the value of a Mortgage Loan or the Mortgage Loans or the interest
therein of the Purchaser, the Seller shall use its best efforts promptly
to cure
such breach in all material respects and, if such breach cannot be cured,
the
Seller shall, at the Purchaser’s option, repurchase such Mortgage Loan at the
Purchase Price. In the event that such a breach shall involve any representation
or warranty set forth in Section 3.02 and such breach cannot be cured within
90
days of the earlier of either discovery by or notice to the Seller of such
breach, all of the Mortgage Loans shall, at the Purchaser’s option, be
repurchased by the Seller at the Purchase Price. The Seller may, assuming
the
Seller has a Qualified Substitute Mortgage Loan, rather than repurchase
a
deficient Mortgage Loan as provided above, remove such Mortgage Loan (in
which
case it shall become a Deleted Mortgage Loan) and substitute in its place
a
Qualified Substitute Mortgage Loan or Loans. Upon substitution, such Qualified
Substitute Mortgage Loan or Loans shall be subject in all respects to the
terms
of this Agreement, including all applicable representations and warranties
thereof included in this Agreement, as of the date of such substitution.
If the
Seller does not provide a Qualified Substitute Mortgage Loan or Loans,
it shall
repurchase the deficient Mortgage Loan. Any repurchase of a Mortgage Loan(s)
pursuant to the foregoing provisions of this Section 3.03 shall occur on
a date
specified in the Pooling and Servicing Agreement and shall be accomplished
by
deposit in accordance with Section 2.03 of the Pooling and Servicing Agreement.
Any repurchase or substitution required by this Section shall be made in
a
manner consistent with Section 2.03 of the Pooling and Servicing
Agreement.
At
the
time of substitution or repurchase of any deficient Mortgage Loan, the
Purchaser
and the Seller shall arrange for the reassignment of the repurchased or
substituted Mortgage Loan to the Seller and the delivery to the Seller
of any
documents held by the Purchaser relating to the deficient or repurchased
Mortgage Loan. In the event the Purchase Price is deposited in the Collection
Account, the Seller shall, simultaneously with such deposit, give written
notice
to the Purchaser that such deposit has taken place. Upon such repurchase,
the
Mortgage Loan Schedule shall be amended to reflect the withdrawal of the
repurchased Mortgage Loan from this Agreement.
As
to any
Deleted Mortgage Loan for which the Seller substitutes a Qualified Substitute
Mortgage Loan or Loans, the Seller shall effect such substitution by delivering
to the Purchaser or its designee for such Qualified Substitute Mortgage
Loan or
Loans the Mortgage Note, the Mortgage, the Assignment and such other documents
and agreements as are required by the Pooling and Servicing Agreement,
with the
Mortgage Note endorsed as required therein. The Seller shall deposit in
the
Collection Account the Monthly Payment less the Servicing Fee due on such
Qualified Substitute Mortgage Loan or Loans in the month following the
date of
such substitution. Monthly Payments due with respect to Qualified Substitute
Mortgage Loans in the month of substitution will be retained by the Seller.
For
the month of substitution, distributions to the Purchaser will include
the
Monthly Payment due on such Deleted Mortgage Loan in the month of substitution,
and the Seller shall thereafter be entitled to retain all amounts subsequently
received by the Seller in respect of such Deleted Mortgage Loan. Upon such
substitution, the Qualified Substitute Mortgage Loans shall be subject
to the
terms of this Agreement in all respects, and the Seller shall be deemed
to have
made with respect to such Qualified Substitute Mortgage Loan or Loans as
of the
date of substitution, the covenants, representations and warranties set
forth in
Sections 3.01 and 3.02.
It
is
understood and agreed that the representations and warranties set forth
in
Section 3.01 shall survive delivery of the respective Mortgage Files to
the
Trustee on behalf of the Purchaser.
It
is
understood and agreed that the obligations of the Seller set forth in Section
3.03 to cure, repurchase and substitute for a defective Mortgage Loan and
to
indemnify the Parties as provided in Section 5.01 constitute the sole remedies
of the Purchaser respecting a missing or defective document or a breach
of the
representations and warranties contained in Section 3.01 or 3.02.
ARTICLE
IV
SELLER’S
COVENANTS
Section
4.01 Covenants
of the Seller.
The
Seller hereby covenants that except for the transfer hereunder, the Seller
will
not sell, pledge, assign or transfer to any other Person, or grant, create,
incur, assume or suffer to exist any Lien on any Mortgage Loan, or any
interest
therein; the Seller will notify the Trustee, as assignee of the Purchaser,
of
the existence of any Lien on any Mortgage Loan immediately upon discovery
thereof, and the Seller will defend the right, title and interest of the
Trust,
as assignee of the Purchaser, in, to and under the Mortgage Loans, against
all
claims of third parties claiming through or under the Seller; provided,
however,
that
nothing in this Section 4.01 shall prevent or be deemed to prohibit the
Seller
from suffering to exist upon any of the Mortgage Loans any Liens for municipal
or other local taxes and other governmental charges if such taxes or
governmental charges shall not at the time be due and payable or if the
Seller
shall currently be contesting the validity thereof in good faith by appropriate
proceedings and shall have set aside on its books adequate reserves with
respect
thereto.
ARTICLE
V
INDEMNIFICATION
WITH
RESPECT
TO THE MORTGAGE LOANS
Section
5.01 Indemnification.
The
Seller agrees to indemnify and to hold each of the Purchaser, the Trustee,
each
of the officers and directors of each such entity and each person or entity
who
controls each such entity or person harmless against any and all claims,
losses,
penalties, fines, forfeitures, legal fees and related costs, judgments,
and any
other costs, fees and expenses that the Purchaser, the Trustee, or any
such
person or entity may sustain in any way (i) related to the failure of the
Seller
to perform its duties in compliance with the terms of this Agreement, (ii)
arising from a breach by the Seller of its representations and warranties
in
Section 3.01 or 3.02 of this Agreement or (iii) related to the origination
or
prior servicing of the Mortgage Loans by reason of any acts, omissions,
or
alleged acts or omissions of the Seller or any servicer. The Seller shall
immediately notify the Purchaser and the Trustee if a claim is made by
a third
party with respect to this Agreement. The Seller shall assume the defense
of any
such claim and pay all expenses in connection therewith, including reasonable
counsel fees, and promptly pay, discharge and satisfy any judgment or decree
which may be entered against the Purchaser, the Trustee or any such person
or
entity in respect of such claim.
Promptly
after receipt by any indemnified party under this Article V of notice of
any
claim or the commencement of any action, such indemnified party shall,
if a
claim in respect thereof is to be made against any indemnifying party under
this
Article V, notify the indemnifying party in writing of the claim or the
commencement of that action; provided,
however,
that
the failure to notify an indemnifying party shall not relieve it from any
liability which it may have under this Article V except to the extent it
has
been materially prejudiced by such failure; provided,
further,
that
the failure to notify any indemnifying party shall not relieve it from
any
liability which it may have to any indemnified party otherwise than under
this
Article V.
If
any
such claim or action shall be brought against an indemnified party, and
it shall
notify the indemnifying party thereof, the indemnifying party shall be
entitled
to participate therein and, to the extent that it wishes, jointly with
any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice
from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable
to
the indemnified party under this Article V for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation.
Any
indemnified party shall have the right to employ separate counsel in any
such
action and to participate in the defense thereof, but the fees and expenses
of
such counsel shall be at the expense of such indemnified party unless:
(i) the
employment thereof has been specifically authorized by the indemnifying
party in
writing; (ii) such indemnified party shall have been advised in writing
by such
counsel that there may be one or more legal defenses available to it which
are
different from or additional to those available to the indemnifying party
and in
the reasonable judgment of such counsel it is advisable for such indemnified
party to employ separate counsel; or (iii) the indemnifying party has failed
to
assume the defense of such action and employ counsel reasonably satisfactory
to
the indemnified party, in which case, if such indemnified party notifies
the
indemnifying party in writing that it elects to employ separate counsel
at the
expense of the indemnifying party, the indemnifying party shall not have
the
right to assume the defense of such action on behalf of such indemnified
party,
it being understood, however, the indemnifying party shall not, in connection
with any one such action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations
or
circumstances, be liable for the reasonable fees and expenses of more than
one
separate firm of attorneys (in addition to local counsel) at any time for
all
such indemnified parties, which firm shall be designated in writing by
the
Purchaser, if the indemnified parties under this Article V consist of the
Purchaser, and by the Seller, if the indemnified parties under this Article
V
consist of the Seller.
Each
indemnified party, as a condition of the indemnity agreements, shall use
its
reasonable efforts to cooperate with the indemnifying party in the defense
of
any such action or claim. No indemnifying party shall be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with its written
consent or if there be a final judgment for the plaintiff in any such action,
the indemnifying party agrees to indemnify and hold harmless any indemnified
party from and against any loss or liability by reason of such settlement
or
judgment. Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to consent to a settlement
of
any action, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if such
settlement is entered into more than 30 days after receipt by such indemnifying
party of the aforesaid request and the indemnifying party has not previously
provided the indemnified party with written notice of its objection to
such
settlement. No indemnifying party shall effect any settlement of any pending
or
threatened proceeding in respect of which an indemnified party is or could
have
been a party and indemnity is or could have been sought hereunder, without
the
written consent of such indemnified party, unless settlement includes an
unconditional release of such indemnified party from all liability and
claims
that are the subject matter of such proceeding.
ARTICLE
VI
TERMINATION
Section
6.01 Termination.
The
respective obligations and responsibilities of the Seller and the Purchaser
created hereby shall terminate, except for the Seller’s indemnity obligations as
provided herein, upon the termination of the Trust as provided in Article
X of
the Pooling and Servicing Agreement.
ARTICLE
VII
MISCELLANEOUS
PROVISIONS
Section
7.01 Amendment.
This
Agreement may be amended from time to time by the Seller and the Purchaser,
by
written agreement signed by the Seller and the Purchaser.
Section
7.02 Governing
Law.
THIS
AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE
PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK WITHOUT REGARDS TO
ANY
CONFLICT OF LAW PROVISIONS. THE PARTIES HERETO INTEND THAT THE PROVISIONS
OF
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS
AGREEMENT.
Section
7.03 Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given when delivered as follows: (i) if to the
Seller:
IndyMac Bank, F.S.B., 0000 Xxxx Xxxxxxxx Xxxx., 0xx Xxxxx, Xxxxxxxx, Xxxxxxxxxx
00000, Attention: Secondary Marketing, or such other address as may hereafter
be
furnished to the Purchaser in writing by the Seller; (ii) if to the Purchaser:
IndyMac MBS, Inc., 0000 Xxxx Xxxxxxxx Xxxx., 0xx Xxxxx, Xxxxxxxx, Xxxxxxxxxx
00000, Attention: Secondary Marketing, or such other address as may hereafter
be
furnished to the Seller in writing by the Purchaser.
Section
7.04 Severability
of Provisions.
If any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be held invalid for any reason whatsoever, 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 of enforceability of the other provisions of this
Agreement.
Section
7.05 Counterparts.
This
Agreement may be executed in one or more counterparts and by the different
parties hereto on separate counterparts, each of which, when so executed,
shall
be deemed to be an original, and such counterparts, together, shall constitute
one and the same agreement.
Section
7.06 Further
Agreements.
The
Purchaser and the Seller each agree to execute and deliver to the other
such
additional documents, instruments or agreements as may be necessary or
reasonable and appropriate to effectuate the purposes of this Agreement
or in
connection with the issuance of the Certificates representing interests
in the
Mortgage Loans.
Without
limiting the generality of the foregoing, as a further inducement for the
Purchaser to purchase the Mortgage Loans from the Seller, the Seller will
cooperate with the Purchaser in connection with the sale of any of the
securities representing interests in the Mortgage Loans. In that connection,
the
Seller will provide to the Purchaser any and all information and appropriate
verification of information, whether through letters of its auditors and
counsel
or otherwise, as the Purchaser shall reasonably request and will provide
to the
Purchaser such additional representations and warranties, covenants, opinions
of
counsel, letters from auditors, and certificates of public officials or
officers
of the Seller as are reasonably required in connection with such transactions
and the offering of investment grade securities rated by the Rating
Agencies.
Section
7.07 Intention
of the Parties.
It is
the intention of the parties that the Purchaser is purchasing, and the
Seller is
selling, the Mortgage Loans rather than pledging the Mortgage Loans to
secure a
loan by the Purchaser to the Seller. Accordingly, the parties hereto each
intend
to treat the transaction for federal income tax purposes and all other
purposes
as a sale by the Seller, and a purchase by the Purchaser, of the Mortgage
Loans.
In the event the transaction set forth herein is deemed not to be a sale,
the
Seller hereby grants to the Purchaser a security interest in all of the
Seller’s
right, title and interest in, to and under the Mortgage Loans and other
property
described above, whether now existing or hereafter created, to secure all
of the
Seller’s obligations hereunder; and this Agreement shall constitute a security
agreement under applicable law. The Purchaser will have the right to review
the
Mortgage Loans and the related Mortgage Files to determine the characteristics
of the Mortgage Loans which will affect the federal income tax consequences
of
owning the Mortgage Loans and the Seller will cooperate with all reasonable
requests made by the Purchaser in the course of such review.
Section
7.08 Successors
and Assigns: Assignment of Purchase Agreement.
This
Agreement shall bind and inure to the benefit of and be enforceable by
the
Seller, the Purchaser and the Trustee. The obligations of the Seller under
this
Agreement cannot be assigned or delegated by the Seller to a third party
without
the consent of the Purchaser, which consent shall be at the Purchaser’s sole
discretion, except that the Purchaser acknowledges and agrees that the
Seller
may assign its obligations hereunder to any Person into which the Seller
is
merged or any corporation resulting from any merger, conversion or consolidation
to which the Seller is a party or any Person succeeding to the business
of the
Seller. The parties hereto acknowledge that the Purchaser is acquiring
the
Mortgage Loans for the purpose of contributing them to a trust that will
issue
the Certificates representing undivided interests in such Mortgage Loans.
As an
inducement to the Purchaser to purchase the Mortgage Loans, the Seller
acknowledges and consents to the assignment by the Purchaser to the Trustee
for
the benefit of the Certificateholders of all of the Purchaser’s rights against
the Seller pursuant to this Agreement insofar as such rights relate to
Mortgage
Loans transferred to the Trustee and to the enforcement or exercise of
any right
or remedy against the Seller pursuant to this Agreement by the Trustee.
Such
enforcement of a right or remedy by the Trustee shall have the same force
and
effect as if the right or remedy had been enforced or exercised by the
Purchaser
directly.
Section
7.09 Survival.
The
representations and warranties set forth in Sections 3.01 and 3.02, the
remedies
set forth in Section 3.03 and the provisions of Article V hereof shall
survive
the purchase of the Mortgage Loans hereunder.
Section
7.10 Third
Party Beneficiary.
The Certificate Insurer, if any, shall be a third party beneficiary hereof,
until such time as the Certificate Principal Balance of the Class A Certificates
has been reduced to zero and all amounts owed to the Certificate Insurer
have
been paid in full, and may enforce the terms hereof as if a party hereto.
The
Trustee shall be a third party beneficiary hereof.
IN
WITNESS WHEREOF, the Seller and the Purchaser have caused their names to
be
signed to this Mortgage Loan Purchase Agreement by their respective officers
thereunto duly authorized as of the day and year first above
written.
|
INDYMAC
MBS, INC., as Purchaser
|
||
| |
|
|
| By: | ||
|
|
||
|
Name:
Title:
|
||
|
INDYMAC
BANK, F.S.B., as Seller
|
||
| |
|
|
| By: | ||
|
|
||
|
Name:
Title:
|
||
|
SCHEDULE
I
|
MORTGAGE
LOAN SCHEDULE
(Available
Upon Request)
|
EXHIBIT
A
|
Representations
and Warranties of the Seller Regarding the Mortgage
Loans.
The
Seller hereby represents and warrants to the Purchaser, as of the Closing
Date,
or if so specified herein, as of the related Cut-off Date as
follows.
(i) The
information set forth on the Mortgage Loan Schedule as to each Mortgage
Loan is
true and correct as of the Cut-off Date.
(ii) As
of the
Closing Date, all regularly scheduled Monthly Payments due with respect
to each
Mortgage Loan up to and including the first day of the month before the
Cut-off
Date have been made; and as of the Cut-off Date, no Mortgage Loan had more
than
one regularly scheduled Monthly Payment that was 30 or more days Delinquent
during the twelve months before the Cut-off Date.
(iii) With
respect to each Mortgage Loan, the related 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, (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.
(iv) Immediately
before the assignment of the Mortgage Loans to the Purchaser, 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 this
Agreement.
(v) As
of the
date of origination of each Mortgage Loan, there was no delinquent tax
or
assessment lien against the related Mortgaged Property. Except for payment
defaults permitted in clause (ii) above, there are no defaults in complying
with
the terms of the Mortgage, or an escrow of funds has been established in
an
amount sufficient to pay for every such item which remains unpaid and which
has
been assessed but is not yet due and payable. The Seller has not advanced
funds,
or induced, solicited or knowingly received any advance of funds by a party
other than the Mortgagor, directly or indirectly, for the payment of any
amount
required under the Mortgage Loan, except for interest accruing from the
date of
the Mortgage Note or date of disbursement of the Mortgage Loan proceeds,
whichever is earlier, to the date which precedes by one month the Due Date
of
the first installment of principal and interest.
(vi) 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. No Mortgagor has been released, in whole
or in
part, except in connection with an assumption agreement, approved by the
issuer
of the title insurer, to the extent required by the policy, and which assumption
agreement is part of the Mortgage Loan File delivered to the Custodian
or to
such other Person as the Purchaser shall designate in writing and the terms
of
which are reflected in the Mortgage Loan Schedule.
(vii) 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 (xi) below.
(viii) No
Mortgaged Property has been materially damaged by water, fire, earthquake,
windstorm, flood, tornado, hurricane 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.
(ix) Each
Mortgage Loan at origination complied in all material respects with applicable
local, state and federal laws and regulations, including usury, equal credit
opportunity, anti-money laundering laws, real estate settlement procedures
and
truth-in-lending and disclosure laws, or any noncompliance does not have
a
material adverse effect on the value of the related Mortgage Loan.
(x) As
of the
Closing Date 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 Purchaser and which has been delivered to the Purchaser);
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.
(xi) A
lender’s policy of title insurance, together with extended coverage endorsement,
if applicable, in an amount at least equal to the Stated Principal Balance
of
each such Mortgage Loan as of the Cut-off Date 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.
(xii) To
the
best of the Seller’s knowledge, all inspections, licenses and certificates
required to be made or issued with respect to the Mortgaged Property and,
with
respect to the use of the same, 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. All parties to the Mortgage Note,
the
Mortgage and any other such related agreement had legal capacity to enter
into
the Mortgage Loan and to execute and deliver the Mortgage Note, the Mortgage
and
any such agreement, and the Mortgage Note, the Mortgage and any other such
related agreement have been duly and properly executed by other such related
parties. The Seller has reviewed all of the documents constituting the
Mortgage
File.
(xiii) 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.
(xiv) The
proceeds of the Mortgage Loan have been fully disbursed and there is no
requirement for future advances thereunder.
(xv) 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. There is no homestead or other exemption
available to a Mortgagor which would interfere with the right to sell the
Mortgaged Property at a trustee’s sale or the right to foreclose the Mortgage,
subject to applicable federal and state laws and judicial precedent with
respect
to bankruptcy and right of redemption or similar law.
(xvi) 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 Purchaser to the trustee under the deed of
trust,
except in connection with a trustee’s sale after default by the
Mortgagor.
(xvii) To
the
best of the Seller’s knowledge, there is no proceeding pending or threatened for
the total or partial condemnation of any Mortgaged Property, nor is such
a
proceeding currently occurring.
(xvii) To
the
best of the Seller’s knowledge, there is no material event which, with the
passage of time or with notice and the expiration of any grace or cure
period,
would constitute a material non-monetary default, breach, violation or
event of
acceleration under the Mortgage or the related Mortgage Note; and the Seller
has
not waived any material non-monetary default, breach, violation or event
of
acceleration.
(xviii) Each
Mortgage File contains an appraisal of the related Mortgaged Property in
a form
acceptable to Xxxxxx Xxx or Xxxxxxx Mac.
(xix) Any
leasehold estate securing a Mortgage Loan has a stated term at least as
long as
the term of the related Mortgage Loan.
(xx) Each
Mortgage Loan was selected from among the outstanding residential lot 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
herein can be made. No such selection was made in a manner intended to
adversely
affect the interests of the Purchaser.
(xxi) Each
Mortgage Loan constitutes a “qualified mortgage” within the meaning of Section
860G(a)(3) of the Code.
(xxii) As
of the
Closing Date, no two Mortgaged Properties are mortgaged by any one
borrower.
(xxiii) None
of
the Mortgage Loans are classified as (a) “high cost” loans under the Home
Ownership and Equity Protection Act of 1994 or (b) “high cost,” “threshold,”
“covered,” “predatory” or “abusive” loans under any other applicable state,
federal or local law.
(xxiv) No
Mortgage Loans are subject to the Georgia Fair Lending Act (“GFLA”), effective
from October 1, 2002 to March 6, 2003.
(xxv) No
Mortgage Loan is subject to the requirements of the Home Ownership and
Equity
Protection Act of 1994 (“HOEPA”) and no Mortgage Loan is in violation of any
state law or ordinance similar to HOEPA.
(xxvi) Each
Prepayment Charge is enforceable against and was originated in compliance
with
all federal, state and local laws, (except to the extent that (i) the
enforceability thereof may be limited by bankruptcy, insolvency, moratorium,
receivership and other similar laws relating to creditors’ rights generally and
(ii) the collectability thereof may be limited due to acceleration in connection
with a foreclosure or other involuntary payoff).
(xxvii) No
loan
is a high cost loan or a covered loan, as applicable (as such terms are
defined
in the then-current version of Standard & Poor’s LEVELS which is now Version
5.6(c) Glossary Revised, Appendix E).
(xxviii) The
Mortgage has not been satisfied, canceled, subordinated or rescinded, in
whole
or in part, and the Mortgaged Property has not been released from the lien
of
the Mortgage, in whole or in part, nor has any instrument been executed
that
would effect any such release, cancellation, subordination or rescission.
The
Seller has not waived the performance by the Mortgagor of any action, if
the
Mortgagor’s failure to perform such action would cause the Mortgage Loan to be
in default, nor has the Seller waived any default resulting from any action
or
inaction by the Mortgagor.
(xxix) The
Mortgaged Property is a fee simple property located in the state identified
in
the Mortgage Loan Schedule, except that with respect to real property located
in
jurisdictions in which the use of leasehold estates for residential properties
is a widely-accepted practice, the Mortgaged Property may be a leasehold
estate.
If the Mortgage Loan is secured by a long-term residential lease: (1) the
lessor
under the lease holds a fee simple interest in the land; (2) the terms
of such
lease expressly permit the mortgaging of the leasehold estate, the assignment
of
the lease without the lessor’s consent and the acquisition by the holder of the
Mortgage of the rights of the lessee upon foreclosure or assignment in
lieu of
foreclosure or provide the holder of the Mortgage with substantially similar
protections; (3) the terms of such lease do not (a) allow the termination
thereof upon the lessee’s default without the holder of the Mortgage being
entitled to receive written notice of, and opportunity to cure, such default,
(b) allow the termination of the lease in the event of damage or destruction
as
long as the Mortgage is in existence, (c) prohibit the holder of the Mortgage
from being insured (or receiving proceeds of insurance) under the hazard
insurance policy or policies relating to the Mortgaged Property or (d)
permit
any increase in rent other than pre-established increases set forth in
the
lease; and (4) the term of such lease does not terminate earlier than five
years
after the maturity date of the Mortgage Note.
(xxx) 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.
(xxxi) To
the
best of the Seller’s knowledge, there is no pending action or proceeding
directly involving the Mortgaged Property in which compliance with any
environmental law, rule or regulation is an issue.
(xxxii) The
Mortgagor has not notified the Seller, and the Seller has no knowledge
of any
relief requested or allowed to the Mortgagor under the Relief Act.
(xxxiii) Each
original Mortgage was recorded and all subsequent assignments of the original
Mortgage (other than the assignment to the Purchaser) have been recorded
in the
appropriate jurisdictions wherein such recordation is necessary to perfect
the
lien thereof as against creditors of the Seller, or is in the process of
being
recorded.
(xxxiv) No
Mortgage Loan is (a) subject to, covered by or in violation of the provisions
of
HOEPA, (b) a “high cost”, “covered” (except with respect to purchase money
“covered loans” under the New Jersey Home Ownership Security Act of 2002),
“abusive”, “predatory”, “home loan”, “Oklahoma Section 10” or “high risk”
mortgage loan (or a similarly designated loan using different terminology)
under
any federal, state or local law, including without limitation, the provisions
of
the Georgia Fair Lending Act, New York Banking Law, Section 6-1, the City
of
Oakland, California Anti-Predatory Lending Ordinance No. 12361, the Arkansas
Home Loan Protection Act, effective as of September 22, 2003, Kentucky
State
Statute KRS 360.100, effective as of June 25, 2003, the New Jersey Home
Ownership Security Act of 2002, the New Mexico Home Loan Protection Act
(N.M.
Stat. Xxx. §§ 58-21A-1 et seq.), the Illinois High-Risk Home Loan Act (815 Ill.
Comp. Stat. 137/1 et seq.), the Oklahoma Home Ownership and Equity Protection
Act, Nevada Assembly Xxxx No. 284, effective as of Oct. 1, 2003, the Minnesota
Residential Mortgage Originator and Servicer Licensing Act (MN Stat. §58.137),
the South Carolina High-Cost and Consumer Home Loans Act, effective January
1,
2004, or any other statute or regulation providing assignee liability to
holders
of such mortgage loans, or (c) subject to or in violation of any such or
comparable federal, state or local statutes or regulations.
(xxxv) The
Mortgage Loan is not subject to any outstanding litigation for fraud,
origination, predatory lending, servicing or closing practices.
(xxxvi) Each
Mortgage Loan has been serviced in all material respects in compliance
with all
applicable federal, state and local laws.
(xxxvii) The
Mortgage contains an enforceable provision (except as such enforcement
may be
effected by bankruptcy and insolvency laws or by general principals of
equity)
for the acceleration of the payment of the unpaid principal balance of
the
Mortgage Loan in the event that the Mortgaged Property is sold or transferred
without the prior written consent of the mortgagee thereunder, and to the
best
of the Seller’s knowledge, such provision is enforceable.
(xxxviii) None
of
the Fixed-Rate Mortgage Loans are, by their terms, assumable.
(xxxix) To
the
best of Seller’s knowledge there was no fraud involved in the origination of any
Mortgage Loan by the Mortgagee or by the Mortgagor, any Appraiser or any
Other
Party involved in the origination of the Mortgage Loan.
EXHIBIT
D
MORTGAGE
LOAN SCHEDULE
---------------------------------------------------------------------------------------------------------------------------
Loan Number State Zip Original months Loan-to-Value Curr.
to maturity ratio at Orig. Interest Rate
---------------------------------------------------------------------------------------------------------------------------
00000000000121167755 CA 95421 60 90 6.875
00000000000121819667 CA 92592 60 59.689 5.875
00000000000122092020 MT 59716 60 80 9.625
00000000000122470736 CA 90042 24 75 6.25
00000000000122532796 CA 92509 60 83.133 6.375
00000000000122742252 TN 37064 60 90 6.875
00000000000122772412 FL 34951 60 90 6.875
00000000000122784626 AK 99516 60 90 6.875
00000000000122784934 AK 99516 60 90 6.875
00000000000122807004 NY 11705 24 90 9.75
00000000000122926094 ME 04043 60 90 10.375
00000000000122953557 FL 34482 60 90 6.875
00000000000122997810 CA 96088 60 69.71 5.875
00000000000123012951 WA 98528 60 90 6.875
00000000000123017472 NJ 08205 60 89.725 10
00000000000123054079 FL 33947 60 90 6.875
00000000000123063531 NV 89521 60 90 6.875
00000000000123064070 CA 92543 60 89.812 6.875
00000000000123068864 NV 89521 60 90 6.875
00000000000123083172 CA 93271 24 90 9.5
00000000000123089937 CA 95376 24 75 7.5
00000000000123104876 TX 77505 60 80 5.875
00000000000123114977 HI 96720 60 90 6.875
00000000000123139554 IL 60561 60 80 5.875
00000000000123164273 FL 33982 60 90 6.875
00000000000123175624 NC 28734 60 90 10.5
00000000000123202435 VA 23117 24 90 11.125
00000000000123203332 PA 18472 24 42.553 10.375
00000000000123203933 AZ 85396 24 80 7.875
00000000000123216409 CA 93638 24 86.842 8
00000000000123218189 IL 60468 60 85 5.375
00000000000123222473 NH 03303 60 90 6.875
00000000000123226555 FL 34433 60 90 6.875
00000000000123240444 CA 90290 60 90 6.875
00000000000123248581 NY 12814 60 90 6.75
00000000000123248975 NY 12997 60 90 6.125
00000000000123251921 CA 95451 60 80 4.875
00000000000123262492 FL 32060 24 40.271 10.125
00000000000123265729 AZ 86404 60 90 6.875
00000000000123272071 AL 36695 60 90 6.875
00000000000123277929 NY 13607 60 80 5.875
00000000000123282566 PA 18426 60 75 9.25
00000000000123287926 OR 97386 24 85.728 13.125
00000000000123289123 CA 95945 180 90 6.875
00000000000123294803 TX 77009 23 90 9.625
00000000000123296697 CA 92530 60 90 6.875
00000000000123300618 SC 29438 60 90 6.875
00000000000123303013 IN 46307 60 90 6.875
00000000000123304282 NC 28411 24 90 9.375
00000000000123333907 FL 34481 60 86.677 6.875
00000000000123354604 CA 91390 24 90 10.375
00000000000123356222 FL 32531 60 90 6.875
00000000000123356281 CA 92277 60 90 6.875
00000000000123361949 CA 92570 60 80 6.875
00000000000123377905 FL 33880 60 90 6.875
00000000000123393611 CA 92539 60 90 4.875
00000000000123395292 FL 33868 60 80 5.875
00000000000123403076 NH 03269 60 90 6.875
00000000000123403166 HI 96761 60 52.083 5.875
00000000000123405103 CA 91384 60 90 4.875
00000000000123406437 HI 96771 60 80 9
00000000000123408733 NY 12549 60 90 6.875
00000000000123409509 ID 83860 60 80 5.875
00000000000123410025 CA 92344 24 90 10.25
00000000000123414506 MI 48827 24 90 9.125
00000000000123418001 CA 95688 60 90 6.875
00000000000123420138 IL 60615 24 90 9
00000000000123420565 NC 27850 60 90 6.875
00000000000123422001 CA 90065 60 90 6.875
00000000000123424668 WA 98236 60 90 6.875
00000000000123426621 CA 96003 24 90 9.5
00000000000123429529 NV 89131 60 90 6.875
00000000000123431958 CA 92284 60 80 5.875
00000000000123432264 OR 97539 60 90 6.875
00000000000123436936 CA 92530 60 90 6.875
00000000000123439122 NV 89015 60 90 6.875
00000000000123440313 MS 39046 60 90 6.875
00000000000123443901 FL 33193 180 85 6.375
00000000000123444744 FL 32927 60 90 6.875
00000000000123448261 NC 28730 60 90 4.875
00000000000123452737 FL 33030 60 90 6.875
00000000000123456802 CA 95030 24 70 10.25
00000000000123457018 UT 84720 60 90 6.875
00000000000123458264 CA 93304 24 90 10.375
00000000000123458460 CA 92345 60 90 6.875
00000000000123459436 HI 96708 24 85 9.875
00000000000123460155 FL 33953 60 90 6.875
00000000000123460790 CO 81149 60 90 6.875
00000000000123463103 NY 11233 60 90 6.875
00000000000123467094 CA 91906 60 37 5.875
00000000000123467731 FL 32686 60 90 6.875
00000000000123467860 FL 34759 24 90 11.75
00000000000123468221 AZ 85207 24 90 9.875
00000000000123469497 ID 83429 60 90 5.875
00000000000123470316 GA 31331 60 74.02 5.875
00000000000123470357 AZ 86024 60 80 5.875
00000000000123471302 TX 78266 60 90 5.875
00000000000123472628 SC 29414 24 80 10.5
00000000000123473928 AZ 86440 60 90 10
00000000000123474418 CA 90031 60 47.037 5.875
00000000000123474538 HI 96727 180 90 5.875
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----------------------------------------------------------------------------------------------------------------
Loan Number First Monthly Stated Current Monthly
Payment Due Date Maturity Date Payment
----------------------------------------------------------------------------------------------------------------
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-------------------------------------------------------------------------------------------------------------------------------
Loan Number Original Monthly Last Actual Orig. Principal Curr. Principal
Payment Payment Balance Balance
-------------------------------------------------------------------------------------------------------------------------------
00000000000121167755 1566.78 9/1/2006 00:00:00 238500 238500
00000000000121819667 2040.81 7/1/2006 00:00:00 345000 342254.27
00000000000122092020 4587.92 8/1/2006 00:00:00 572000 572000
00000000000122470736 646.5 8/1/2006 00:00:00 105000 104291.62
00000000000122532796 1291.41 9/1/2006 00:00:00 207000 206279.55
00000000000122742252 503.15 8/1/2006 00:00:00 62730 62730
00000000000122772412 453.75 9/1/2006 00:00:00 79200 78746.25
00000000000122784626 177.37 9/1/2006 00:00:00 27000 26654.51
00000000000122784934 177.37 9/1/2006 00:00:00 27000 26654.51
00000000000122807004 2559.37 8/1/2006 00:00:00 315000 314398.68
00000000000122926094 1245 9/1/2006 00:00:00 144000 144000
00000000000122953557 670.31 8/1/2006 00:00:00 117000 117000
00000000000122997810 746.37 8/1/2006 00:00:00 126175 125917.09
00000000000123012951 296.48 9/1/2006 00:00:00 51750 51746.48
00000000000123017472 1287.4 10/1/2006 00:00:00 146700 146700
00000000000123054079 541.41 9/1/2006 00:00:00 94500 94500
00000000000123063531 386.72 9/1/2006 00:00:00 67500 67500
00000000000123064070 1232.34 8/1/2006 00:00:00 215100 215099.8
00000000000123068864 443.43 9/1/2006 00:00:00 67500 67500
00000000000123083172 1392.45 9/1/2006 00:00:00 165600 165186.26
00000000000123089937 2150.08 8/1/2006 00:00:00 307500 306174.82
00000000000123104876 176.25 9/1/2006 00:00:00 36000 36000
00000000000123114977 443.43 9/1/2006 00:00:00 67500 67386.25
00000000000123139554 1774.61 8/1/2006 00:00:00 300000 299386.78
00000000000123164273 618.75 8/1/2006 00:00:00 108000 107237.49
00000000000123175624 2118.38 8/1/2006 00:00:00 242100 242100
00000000000123202435 828.38 8/1/2006 00:00:00 86130 86069.96
00000000000123203332 181.08 9/1/2006 00:00:00 20000 14715.86
00000000000123203933 3480.33 8/1/2006 00:00:00 480000 478665.61
00000000000123216409 1816.07 8/1/2006 00:00:00 247500 247333.93
00000000000123218189 547.37 9/1/2006 00:00:00 97750 97612.84
00000000000123222473 405 8/1/2006 00:00:00 61650 61355.56
00000000000123226555 149.53 9/1/2006 00:00:00 26100 26100
00000000000123240444 1598.44 8/1/2006 00:00:00 279000 279000
00000000000123248581 542.88 9/1/2006 00:00:00 83700 83012.58
00000000000123248975 358.31 8/1/2006 00:00:00 70200 70200
00000000000123251921 453 9/1/2006 00:00:00 85600 85389.07
00000000000123262492 1073.06 9/1/2006 00:00:00 121000 120895.32
00000000000123265729 779.84 9/1/2006 00:00:00 118710 118356.72
00000000000123272071 902.34 8/1/2006 00:00:00 157500 157500
00000000000123277929 1116.82 9/1/2006 00:00:00 188800 188800
00000000000123282566 968.7 8/1/2006 00:00:00 117750 117688.96
00000000000123287926 965.78 9/1/2006 00:00:00 88300 88300
00000000000123289123 1598.44 9/1/2006 00:00:00 279000 279000
00000000000123294803 613.59 9/1/2006 00:00:00 76500 76463.59
00000000000123296697 386.72 8/1/2006 00:00:00 67500 67500
00000000000123300618 205.75 8/1/2006 00:00:00 31320 31267.23
00000000000123303013 579.41 9/1/2006 00:00:00 88200 88051.38
00000000000123304282 1235.15 9/1/2006 00:00:00 148500 148425.01
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---------------------------------------------------------------------------------------------------------------------------
Loan Number Orig. Appraisal Min. Interest Max. Interest Gross
Interest Rate Value Rate Rate Margin
---------------------------------------------------------------------------------------------------------------------------
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-----------------------------------------------
Loan Number Periodic
Rate Cap
-----------------------------------------------
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--------------------------------------------------------------------------------------------------------------------------
Loan Number State Zip Original months Loan-to-Value Curr. Interest
to maturity ratio at Orig. Rate
--------------------------------------------------------------------------------------------------------------------------
00000000000123017472 NJ 08205 60 89.725 10
00000000000123796649 NY 10990 240 90 6.875
00000000000123839869 NJ 07827 180 80 5.875
00000000000123874791 MD 20772 60 90 6.875
00000000000123956826 CO 81235 60 90 6.875
00000000000123958858 MO 63025 60 79.385 4.875
00000000000123977159 WA 98819 24 80 10
00000000000123978178 TX 77365 60 90 5.875
00000000000123997214 SC 29745 60 90 6.875
00000000000124025416 AK 99516 60 90 9
00000000000124037202 UT 84017 24 90 8.5
00000000000124041381 ID 83617 60 90 6.875
00000000000124057527 MI 48380 24 90 12
00000000000124072251 NM 87043 24 90 10.75
00000000000124083578 MI 48836 60 90 10.375
00000000000124097522 FL 32444 180 90 6.875
00000000000124108527 CA 92590 60 90 6.875
00000000000124110934 TX 78258 60 90 6.875
00000000000124114017 TX 78002 60 89.999 6.875
00000000000124116093 FL 33948 24 80 9.5
00000000000124122188 UT 84060 180 85 8.5
00000000000124132497 GA 30188 180 90 6.875
00000000000124141135 MI 48302 60 70 4.875
00000000000124141848 KS 66618 60 90 12.5
00000000000124144066 NY 14131 60 90 6.875
00000000000124149825 TX 78133 60 79.964 9.5
00000000000124180177 TX 77091 60 80 5.875
00000000000124195559 CA 95640 60 89.583 6.875
00000000000124197665 CA 96022 60 90 6.875
00000000000124197712 CA 93291 24 80 9.25
00000000000124207341 CA 92543 60 90 8.25
00000000000124210610 FL 33914 180 90 6.875
00000000000124228066 VA 22712 180 90 6.875
00000000000124229610 UT 84098 60 90 6.875
00000000000124244743 CO 81225 24 32.927 9.375
00000000000124255872 MA 01506 24 90 11.75
00000000000124271821 UT 84655 60 90 6.875
00000000000124279188 WA 98837 24 90 10.5
00000000000124289750 CO 80467 60 78.906 5.875
00000000000124312043 TX 77356 24 90 11.75
00000000000124341492 FL 33056 60 90 10.375
----------------------------------------------------------------------------------------------------------------
Loan Number First Monthly Stated Maturity Date Current Monthly
Payment Due Date Payment
----------------------------------------------------------------------------------------------------------------
00000000000123017472 11/1/2006 0:00 10/1/2011 00:00:00 1287.4
00000000000123796649 11/1/2006 0:00 10/1/2026 00:00:00 1247.81
00000000000123839869 11/1/2006 00:00:00 10/1/2021 00:00:00 449.57
00000000000123874791 10/1/2006 00:00:00 9/1/2011 00:00:00 1521.09
00000000000123956826 11/1/2006 00:00:00 10/1/2011 00:00:00 242.34
00000000000123958858 11/1/2006 00:00:00 10/1/2011 00:00:00 546.14
00000000000123977159 11/1/2006 00:00:00 10/1/2008 00:00:00 233.33
00000000000123978178 10/1/2006 00:00:00 9/1/2011 00:00:00 264.38
00000000000123997214 10/1/2006 00:00:00 9/1/2011 00:00:00 309.38
00000000000124025416 11/1/2006 00:00:00 10/1/2011 00:00:00 795.85
00000000000124037202 11/1/2006 00:00:00 10/1/2008 00:00:00 1077.38
00000000000124041381 11/1/2006 00:00:00 10/12/2011 00:00:00 953.91
00000000000124057527 11/1/2006 00:00:00 10/1/2008 00:00:00 1573.78
00000000000124072251 11/1/2006 00:00:00 10/1/2008 00:00:00 1008.16
00000000000124083578 11/1/2006 00:00:00 10/1/2011 00:00:00 466.88
00000000000124097522 11/1/2006 00:00:00 10/1/2021 00:00:00 798.17
00000000000124108527 11/1/2006 00:00:00 10/1/2011 00:00:00 2036.72
00000000000124110934 10/1/2006 00:00:00 9/1/2011 00:00:00 366.57
00000000000124114017 11/1/2006 00:00:00 10/1/2011 00:00:00 546.86
00000000000124116093 10/1/2006 00:00:00 9/1/2008 00:00:00 237.5
00000000000124122188 10/1/2006 00:00:00 9/1/2021 00:00:00 3311.46
00000000000124132497 11/1/2006 00:00:00 10/1/2021 00:00:00 515.63
00000000000124141135 11/1/2006 00:00:00 10/1/2011 00:00:00 3519.23
00000000000124141848 11/1/2006 00:00:00 10/1/2011 00:00:00 187.5
00000000000124144066 11/1/2006 00:00:00 10/1/2011 00:00:00 540.89
00000000000124149825 11/1/2006 00:00:00 10/1/2011 00:00:00 695.08
00000000000124180177 10/1/2006 00:00:00 9/1/2011 00:00:00 160.58
00000000000124195559 11/1/2006 00:00:00 10/1/2011 00:00:00 282.48
00000000000124197665 11/1/2006 00:00:00 10/1/2011 00:00:00 934.83
00000000000124197712 11/1/2006 00:00:00 10/1/2008 00:00:00 1541.67
00000000000124207341 11/1/2006 00:00:00 10/1/2011 00:00:00 816.75
00000000000124210610 11/1/2006 00:00:00 10/1/2021 00:00:00 979.17
00000000000124228066 11/1/2006 00:00:00 10/1/2021 00:00:00 1108.59
00000000000124229610 11/1/2006 00:00:00 10/1/2011 00:00:00 1443.75
00000000000124244743 11/1/2006 00:00:00 10/1/2008 00:00:00 2109.38
00000000000124255872 11/1/2006 00:00:00 10/1/2008 00:00:00 674.16
00000000000124271821 11/1/2006 00:00:00 10/1/2011 00:00:00 283.59
00000000000124279188 11/1/2006 00:00:00 10/1/2008 00:00:00 1535.63
00000000000124289750 11/1/2006 00:00:00 10/1/2011 00:00:00 597.45
00000000000124312043 11/1/2006 00:00:00 10/1/2008 00:00:00 1410
00000000000124341492 11/1/2006 00:00:00 10/1/2011 00:00:00 733.38
---------------------------------------------------------------------------------------------------------------------------------
Loan Number Original Monthly Last Actual Payment Orig. Principal Curr. Principal
Payment Balance Balance
---------------------------------------------------------------------------------------------------------------------------------
00000000000123017472 1287.4 10/1/2006 00:00:00 146700 146700
00000000000123796649 1247.81 10/1/2006 00:00:00 217800 217800
00000000000123839869 449.57 10/1/2006 00:00:00 76000 76000
00000000000123874791 1521.09 9/1/2006 00:00:00 265500 265500
00000000000123956826 242.34 10/1/2006 00:00:00 42300 42300
00000000000123958858 546.14 10/1/2006 00:00:00 103200 103200
00000000000123977159 233.33 10/1/2006 00:00:00 28000 28000
00000000000123978178 264.38 9/1/2006 00:00:00 54000 54000
00000000000123997214 309.38 9/1/2006 00:00:00 54000 54000
00000000000124025416 795.85 10/1/2006 00:00:00 98910 98910
00000000000124037202 1077.38 10/1/2006 00:00:00 152100 152100
00000000000124041381 953.91 10/1/2006 00:00:00 166500 166500
00000000000124057527 1573.78 10/1/2006 00:00:00 153000 153000
00000000000124072251 1008.16 10/1/2006 00:00:00 108000 108000
00000000000124083578 466.88 10/1/2006 00:00:00 54000 54000
00000000000124097522 798.17 10/1/2006 00:00:00 121500 121500
00000000000124108527 2036.72 10/1/2006 00:00:00 355500 355500
00000000000124110934 366.57 9/1/2006 00:00:00 55800 55800
00000000000124114017 546.86 10/1/2006 00:00:00 83245 83245
00000000000124116093 237.5 9/1/2006 00:00:00 30000 30000
00000000000124122188 3311.46 9/1/2006 00:00:00 467500 467500
00000000000124132497 515.63 10/1/2006 00:00:00 90000 90000
00000000000124141135 3519.23 10/1/2006 00:00:00 665000 665000
00000000000124141848 187.5 10/1/2006 00:00:00 18000 18000
00000000000124144066 540.89 10/1/2006 00:00:00 94410 94410
00000000000124149825 695.08 10/1/2006 00:00:00 87800 87800
00000000000124180177 160.58 9/1/2006 00:00:00 32800 32800
00000000000124195559 282.48 10/1/2006 00:00:00 43000 43000
00000000000124197665 934.83 10/1/2006 00:00:00 163170 163170
00000000000124197712 1541.67 10/1/2006 00:00:00 200000 200000
00000000000124207341 816.75 10/1/2006 00:00:00 118800 118800
00000000000124210610 979.17 10/1/2006 00:00:00 170910 170910
00000000000124228066 1108.59 10/1/2006 00:00:00 193500 193500
00000000000124229610 1443.75 10/1/2006 00:00:00 252000 252000
00000000000124244743 2109.38 10/1/2006 00:00:00 270000 270000
00000000000124255872 674.16 10/1/2006 00:00:00 68850 68850
00000000000124271821 283.59 10/1/2006 00:00:00 49500 49500
00000000000124279188 1535.63 10/1/2006 00:00:00 175500 175500
00000000000124289750 597.45 10/1/2006 00:00:00 101000 101000
00000000000124312043 1410 10/1/2006 00:00:00 144000 144000
00000000000124341492 733.38 10/1/2006 00:00:00 81000 81000
---------------------------------------------------------------------------------------------------------------------------
Loan Number Orig. Interest Appraisal Min. Interest Max. Gross
Rate Value Rate Interest Rate Margin
---------------------------------------------------------------------------------------------------------------------------
00000000000123017472 10 163500
00000000000123796649 6.875 250000 5.25 12.875 5.25
00000000000123839869 5.875 160000 4 11.875 4
00000000000123874791 6.875 295000 5.75 12.875 5.75
00000000000123956826 6.875 50000 5.25 12.875 5.25
00000000000123958858 4.875 130000 4 10.875 4
00000000000123977159 10 35000
00000000000123978178 5.875 63000 5.75 11.875 5.75
00000000000123997214 6.875 60000 5.25 12.875 5.25
00000000000124025416 9 110000 5 15 5
00000000000124037202 8.5 169000
00000000000124041381 6.875 186000 5.25 12.875 5.25
00000000000124057527 12 170000
00000000000124072251 10.75 125000
00000000000124083578 10.375 62000 4.75 16.375 4.75
00000000000124097522 6.875 138000 5 12.875 5
00000000000124108527 6.875 475000 6.25 12.875 6.25
00000000000124110934 6.875 62000 5.5 12.875 5.5
00000000000124114017 6.875 95000 5 12.875 5
00000000000124116093 9.5 37500
00000000000124122188 8.5 550000 4.75 14.5 4.75
00000000000124132497 6.875 103000 5.75 12.875 5.75
00000000000124141135 4.875 1123000 4 10.875 4
00000000000124141848 12.5 21000
00000000000124144066 6.875 105000 5.25 12.875 5.25
00000000000124149825 9.5 120000 3.75 15.5 3.75
00000000000124180177 5.875 41000 4.25 11.875 4.25
00000000000124195559 6.875 48000 5.5 12.875 5.5
00000000000124197665 6.875 205000 5.25 12.875 5.25
00000000000124197712 9.25 250000
00000000000124207341 8.25 139000 5.25 14.25 5.25
00000000000124210610 6.875 230000 5.25 12.875 5.25
00000000000124228066 6.875 220000 5.75 12.875 5.75
00000000000124229610 6.875 280000 5.25 12.875 5.25
00000000000124244743 9.375 845000
00000000000124255872 11.75 80000
00000000000124271821 6.875 68000 5.75 12.875 5.75
00000000000124279188 10.5 197000
00000000000124289750 5.875 136000 4 11.875 4
00000000000124312043 11.75 160000
00000000000124341492 10.375 95000 4.5 16.375 4.5
-----------------------------------------------
Loan Number Periodic
Rate Cap
-----------------------------------------------
00000000000123017472
00000000000123796649 11.875
00000000000123839869 10.875
00000000000123874791 11.875
00000000000123956826 11.875
00000000000123958858 9.875
00000000000123977159
00000000000123978178 10.875
00000000000123997214 11.875
00000000000124025416 14
00000000000124037202
00000000000124041381 11.875
00000000000124057527
00000000000124072251
00000000000124083578 11.375
00000000000124097522 11.875
00000000000124108527 11.875
00000000000124110934 11.875
00000000000124114017 11.875
00000000000124116093
00000000000124122188 13.5
00000000000124132497 11.875
00000000000124141135 9.875
00000000000124141848
00000000000124144066 11.875
00000000000124149825 10.5
00000000000124180177 10.875
00000000000124195559 11.875
00000000000124197665 11.875
00000000000124197712
00000000000124207341 9.25
00000000000124210610 11.875
00000000000124228066 11.875
00000000000124229610 11.875
00000000000124244743
00000000000124255872
00000000000124271821 11.875
00000000000124279188
00000000000124289750 10.875
00000000000124312043
00000000000124341492 11.375
EXHIBIT
E
FORM
OF REQUEST FOR RELEASE OF DOCUMENTS
|
To:
|
Deutsche
Bank National Trust Company
|
0000
Xxxx
Xx. Xxxxxx Xxxxx
Xxxxx
Xxx, Xxxxxxxxxx 00000-0000
Attention:
Trust Administration - IN06L3
|
Re:
|
Pooling
and Servicing Agreement dated as of September 1, 2006 among IndyMac
MBS,
Inc., as Depositor, IndyMac Bank, F.S.B., as Seller and Servicer,
and
Deutsche Bank National Trust Company, as Trustee with respect to
IndyMac
MBS, Inc., Residential Mortgage-Backed Trust, Series
2006-L3
|
In
connection with the administration of the Mortgage Loans held by you as Trustee
pursuant to the above-captioned Pooling and Servicing Agreement, we request
the
release, and hereby acknowledge receipt of the Trustee’s Mortgage File Or the
Mortgage Loan described below, for the reason indicated.
Mortgage
Loan Number:
Mortgagor
Name. Address & Zip Code:
Reason
for Requesting Documents (check one):
|
______1.
|
Mortgage
Paid in Full
|
|
______2.
|
Foreclosure
|
|
______3.
|
Substitution
|
|
______4.
|
Other
Liquidation (Repurchases, etc.)
|
|
______5.
|
Nonliquidation
Reason:
|
Address
to which Trustee should deliver
the
Trustee’s Mortgage File:
|
By:
|
||
|
(authorized
agent)
|
||
|
Issuer:
|
||
|
Address:
|
||
|
Date:
|
||
Trustee
Deutsche
Bank National Trust Company
|
Please
acknowledge the execution of the above request by your signature
and date
below:
|
|
Signature
|
Date
|
|
|
Documents
returned to Trustee:
|
||
|
Trustee
|
Date
|
|
EXHIBIT
F-1
FORM
OF
TRUSTEE’S INITIAL CERTIFICATION
_______________,
200__
|
IndyMac
MBS, Inc.
000
Xxxxx Xxxx Xxxxxx
Xxxxxxxx,
Xxxxxxxxxx 00000
|
|
Re:
|
Pooling
and Servicing Agreement dated as of September 1, 2006 among IndyMac
MBS,
Inc., as Depositor, IndyMac Bank, F.S.B., as Seller and Servicer,
and
Deutsche Bank National Trust Company, as Trustee with respect to
IndyMac
MBS, Inc., Residential Mortgage-Backed Trust, Series
2006-L3
|
Ladies
and Gentlemen:
Attached
is the Trustee’s preliminary exception report delivered in accordance with
Section 2.02 of the referenced Pooling and Servicing Agreement (the “Pooling and
Servicing Agreement”). Capitalized terms used but not otherwise defined herein
shall have the meanings set forth in the Pooling and Servicing
Agreement.
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 the Mortgage File pertaining to the Mortgage Loans
identified on the Mortgage Loan Schedule, (ii) the collectability, insurability,
effectiveness or suitability of any such Mortgage Loan or (iii) whether any
Mortgage File included any of the documents specified in clause (vi) of Section
2.01 of the Pooling and Servicing Agreement.
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY
|
||||||||||||||
|
By:
|
||||||||||||||
|
Name:
|
||||||||||||||
|
Title:
|
||||||||||||||
EXHIBIT
F-2
FORM
OF
TRUSTEE’S FINAL CERTIFICATION
|
[Date]
|
|
IndyMac
MBS, Inc.
000
Xxxxx Xxxx Xxxxxx
Xxxxxxxx,
Xxxxxxxxxx 00000
|
|
Re:
|
Pooling
and Servicing Agreement dated as of September 1, 2006 among IndyMac
MBS,
Inc., as Depositor, IndyMac Bank, F.S.B., as Seller and Servicer,
and
Deutsche Bank National Trust Company, as Trustee with respect to
IndyMac
MBS, Inc., Residential Mortgage-Backed Trust, Series
2006-L3
|
Ladies
and Gentlemen:
In
accordance with Section 2.02 of 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 Schedule I hereto) it (or its custodian) has received the applicable
documents listed in Section 2.01 of the Pooling and Servicing
Agreement.
The
undersigned hereby certifies that as to each Mortgage Loan identified on
the
Mortgage Loan Schedule, other than any Mortgage Loan listed on Schedule I
hereto, it has reviewed the documents listed above and has determined that
each
such document appears to be complete and, based on an examination of such
documents, the information set forth in items (1), (3), (10), (11), (15)
and
(18) in the definition of Mortgage Loan Schedule is correct.
Capitalized
words and phrases used herein shall have the respective meanings assigned
to
them in the Pooling and Servicing Agreement. This Certificate is qualified
in
all respects by the terms of said Pooling and Servicing Agreement.
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY
|
||||||||||||||
|
By:
|
||||||||||||||
|
Name:
|
||||||||||||||
|
Title:
|
||||||||||||||
EXHIBIT
F-3
FORM
OF
RECEIPT OF MORTGAGE NOTE
|
IndyMac
MBS, Inc.
000
Xxxxx Xxxx Xxxxxx
Xxxxxxxx,
Xxxxxxxxxx 00000
|
|
Re:
|
IndyMac
MBS, Inc., IndyMac Residential Mortgage-Backed Trust, Series 2006-L3,
Mortgage-Backed Certificates
|
Ladies
and Gentlemen:
Pursuant
to Section 2.01 of the Pooling and Servicing Agreement, dated as of September
1,
2006, among IndyMac MBS, Inc. as Depositor, IndyMac Bank, F.S.B. as Seller
and
Servicer and Deutsche Bank National Trust Company as Trustee (the “Trustee”), we
hereby acknowledge the receipt of the original Mortgage Notes with any
exceptions thereto listed on Exhibit 1.
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY
|
||||||||||||||
|
By:
|
||||||||||||||
|
Name:
|
||||||||||||||
|
Title:
|
||||||||||||||
EXHIBIT
G
[RESERVED]
EXHIBIT
H
FORM
OF
LOST NOTE AFFIDAVIT
Personally
appeared before me the undersigned authority to administer oaths,
___________________ who first being duly sworn deposes and says: Deponent
is
___________ of _____________, successor by merger to ________________ (“Seller”)
and who has personal knowledge of the facts set out in this
affidavit.
On
______________________, ________ did execute and deliver a promissory note
in
the principal amount of $__________.
That
said
note has been misplaced or lost through causes unknown and is presently lost
and
unavailable after diligent search has been made. Seller’s records show that an
amount of principal and interest on said note is still presently outstanding,
due, and unpaid, and Seller is still owner and holder in due course of said
lost
note.
Seller
executes this Affidavit for the purpose of inducing Deutsche Bank National
Trust
Company, as trustee on behalf of IndyMac MBS, Inc., IndyMac Residential
Mortgage-Backed Trust 2006-L3, Mortgage Backed Certificates, Series 2006-L3,
to
accept the transfer of the above described loan from Seller.
Seller
agrees to indemnify Deutsche Bank National Trust Company, IndyMac MBS, Inc.
and
IndyMac Bank, F.S.B. harmless for any losses incurred by such parties resulting
from the above described promissory note has been lost or
misplaced.
By: _______________
_______________
|
STATE
OF_____________
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF___________
|
)
|
On
this
_____ day of _____________, 20__, before me, a Notary Public, in and for
said
County and State, appeared ___________________, who acknowledged the extension
of the foregoing and who, having been duly sworn, states that any
representations therein contained are true.
Witness
my hand and Notarial Seal this _____________ day of 20__.
_______________________
_______________________
My
commission expires _____________.
EXHIBIT
I
FORM
OF
CERTIFICATION WITH RESPECT TO ERISA AND THE CODE
&
#160;[DATE]
|
IndyMac
MBS, Inc.
000
Xxxxx Xxxx Xxxxxx
Xxxxxxxx,
Xxxxxxxxxx 00000
|
Deutsche
Bank National Trust Company
0000
Xxxx Xx. Xxxxxx Xxxxx
Xxxxx
Xxx, Xxxxxxxxxx 00000-0000
Attention:
Trust Administration - IN06L3
|
|
Re:
|
IndyMac
MBS, Inc., IndyMac Residential Mortgage-Backed Trust 2006-L3, Mortgage-Backed
Certificates, Series 2006-L3
|
Ladies
and Gentlemen:
_______________________________
(the “Transferee”) intends to acquire from __________________________ (the
“Transferor”) $____________ Initial Certificate Principal Balance of IndyMac
Residential Mortgage-Backed Trust 2006-L3, Mortgage Backed Certificates,
Series
2006-L3, Class ___ (the “Certificates”), issued pursuant to a Pooling and
Servicing Agreement (the “Pooling and Servicing Agreement”) dated as of
September 1, 2006 among IndyMac MBS, Inc. as depositor (the “Depositor”),
IndyMac Bank, F.S.B. as seller (the “Seller”) and servicer (the “Servicer”) and
Deutsche Bank National Trust Company as trustee (the “Trustee”). Capitalized
terms used herein and not otherwise defined shall have the meanings assigned
thereto in the Pooling and Servicing Agreement. The Transferee hereby certifies,
represents and warrants to, and covenants with the Depositor, the Trustee
and
the Servicer the following:
The
Certificates (i) are not being acquired by, and will not be transferred to,
any
employee benefit plan within the meaning of section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”), or other
retirement arrangement, including individual retirement accounts and annuities,
Xxxxx plans and bank collective investment funds and insurance company general
or separate accounts in which such plans, accounts or arrangements are invested,
that is subject to Section 406 of ERISA or Section 4975 of the Internal Revenue
Code of 1986 (the “Code”) (any of the foregoing, a “Plan”), (ii) are not being
acquired with “plan assets” of a Plan within the meaning of the Department of
Labor (“DOL”) regulation, 29 C.F.R. § 2510.3-101 and (iii) will not be
transferred to any entity that is deemed to be investing in plan assets within
the meaning of the DOL regulation at 29 C.F.R. § 2510.3-101.
|
Very
truly yours,
[Transferee]
|
||||||||||||||
|
By:
|
||||||||||||||
|
Name:
|
||||||||||||||
|
Title:
|
||||||||||||||
EXHIBIT
J
FORM
OF
RULE 144A INVESTMENT LETTER
[Date]
|
IndyMac
MBS, Inc.
000
Xxxxx Xxxx Xxxxxx
Xxxxxxxx,
Xxxxxxxxxx 00000
|
Deutsche
Bank National Trust Company
0000
Xxxx Xx. Xxxxxx Xxxxx
Xxxxx
Xxx, Xxxxxxxxxx 00000-0000
Attention:
Trust Administration - IN06L3
|
|
Re:
|
IndyMac
MBS, Inc., IndyMac Residential Mortgage-Backed Trust 2006-L3, Mortgage-Backed
Certificates Series 2006-L3
|
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
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;
(c) [Reserved];
(d) we
have
not, nor has anyone acting on our behalf offered, transferred, pledged, sold
or
otherwise disposed of the Certificates, any interest in the Certificates
or any
other similar security to, or solicited any offer to buy or accept a transfer,
pledge or other disposition of the Certificates, any interest in the
Certificates or any other similar security from, or otherwise approached
or
negotiated with respect to the Certificates, any interest in the Certificates
or
any other similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or taken
any other action, that would constitute a distribution of the Certificates
under
the Securities Act or that would render the disposition of the Certificates
a
violation of Section 5 of the Securities Act or require registration pursuant
thereto, nor will act, nor has authorized or will authorize any person to
act,
in such manner with respect to the Certificates;
(e) we
are a
“qualified institutional buyer” as that term is defined in Rule 144A under the
Securities Act and have completed either of the forms of certification to
that
effect attached hereto as Annex 1 or Annex 2. We are aware that the sale
to us
is being made in reliance on Rule 144A. We are acquiring the Certificates
for
our own account or for resale pursuant to Rule 144A and further, understand
that
such Certificates may be resold, pledged or transferred only (i) to a person
reasonably believed to be a qualified institutional buyer that purchases
for its
own account or for the account of a qualified institutional buyer to whom
notice
is given that the resale, pledge or transfer is being made in reliance on
Rule
144A, or (ii) pursuant to another exemption from registration under the
Securities Act; and
(f) either
(i) we are not an employee benefit or other plan subject to the prohibited
transaction provisions of the Employee Retirement Income Security Act of
1974,
as amended (“ERISA), or Section 4975 of the Internal Revenue Code of 1986, as
amended (“Plan”), or any other person (including an investment manager, a named
fiduciary or a trustee of any Plan) acting, directly or indirectly, on behalf
of
or purchasing any Certificate with “plan assets” of any Plan within the meaning
of the Department of Labor (“DOL”) regulation at 29 C.F.R. § 2510.3-101 or (ii)
we have provided the Trustee with an Opinion of Counsel acceptable to and
in
form and substance satisfactory to the Trustee to the effect that the purchase
of Certificates is permissible under applicable law, will not constitute
or
result in any non-exempt prohibited transaction under ERISA or Section 4975
of
the Code and will not subject the Trustee, the Depositor, the Servicer, the
Certificate Insurer or the Trust Fund to any obligation or liability (including
obligations or liabilities under ERISA or Section 4975 of the Code) in addition
to those undertaken in the Pooling and Servicing Agreement].
|
Very
truly yours,
[NAME
OF TRANSFEREE]
|
||||||||||||||
|
By:
|
||||||||||||||
|
Authorized
Officer
|
||||||||||||||
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 $_______1in
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.
_______
State
or Local Plan.
The
Buyer is a plan established and maintained by a State, its political
subdivisions, or any agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
_______
ERISA
Plan.
The
Buyer is an employee benefit plan within the meaning of Title I of the Employee
Retirement Income Security Act of 1974.
_______
Investment
Advisor.
The
Buyer is an investment advisor registered under the Investment Advisors Act
of
1940.
_______
Small
Business Investment Company.
Buyer
is a small business investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business Investment
Act
of 1958.
_______
Business
Development Company.
Buyer
is a business development company as defined in Section 202(a)(22) of the
Investment Advisors Act of 1940.
3. The
term
“securities”
as
used
herein does
not include
(i)
securities of issuers that are affiliated with the Buyer, (ii) securities
that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer
is
a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit
(v)
loan participations, (vi) repurchase agreements, (vii) securities owned but
subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
4. For
purposes of determining the aggregate amount of securities owned and/or invested
on a discretionary basis by the Buyer, the Buyer used the cost of such
securities to the Buyer and did not include any of the securities referred
to in
the preceding paragraph, except (i) where the Buyer reports its securities
holdings in its financial statements on the basis of their market value,
and
(ii) no current information with respect to the cost of those securities
has
been published. If clause (ii) in the preceding sentence applies, the securities
may be valued at market. Further, in determining such aggregate amount, the
Buyer may have included securities owned by subsidiaries of the Buyer, but
only
if such subsidiaries are consolidated with the Buyer in its financial statements
prepared in accordance with generally accepted accounting principles and
if the
investments of such subsidiaries are managed under the Buyer’s direction.
However, such securities were not included if the Buyer is a majority-owned,
consolidated subsidiary of another enterprise and the Buyer is not itself
a
reporting company under the Securities Exchange Act of 1934, as
amended.
5. The
Buyer
acknowledges that it is familiar with Rule 144A and understands that the
seller
to it and other parties related to the Certificates are relying and will
continue to rely on the statements made herein because one or more sales
to the
Buyer may be in reliance on Rule 144A.
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:
|
||||||||||||||
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.
ANNEX
2 TO EXHIBIT J
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 Buyers 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.
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 of Adviser
|
||||||||||||||
|
By:
|
||||||||||||||
|
Name:
|
||||||||||||||
|
Title:
|
||||||||||||||
|
IF
AN ADVISER:
|
||||||||||||||
|
Print
Name of Buyer
|
||||||||||||||
|
Date:
|
||||||||||||||
EXHIBIT
K
[RESERVED]
EXHIBIT
L
FORM
OF
TRANSFEROR CERTIFICATE
[DATE]
|
IndyMac
MBS, Inc.
000
Xxxxx Xxxx Xxxxxx
Xxxxxxxx,
Xxxxxxxxxx 00000
|
|
Re:
|
IndyMac
MBS, Inc., IndyMac Residential Mortgage-Backed Trust 2006-L3, Mortgage-Backed
Certificates, Series 2006-L3
|
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,
(c) to
the extent we are disposing of a Class R Certificate, we have no knowledge
the
Transferee is not a Permitted Transferee and (d) no purpose of the proposed
disposition of a Class R Certificate is to impede the assessment or collection
of tax.
|
Very
truly yours,
[TRANSFEROR]
|
||||||||||||||
|
By:
|
||||||||||||||
|
Name:
|
||||||||||||||
|
Title:
|
||||||||||||||
EXHIBIT
M
AFFIDAVIT
OF TRANSFER OF CLASS R CERTIFICATES
PURSUANT
TO SECTION 5.02(D)
INDYMAC
MBS, INC. INDYMAC RESIDENTIAL MORTGAGE-BACKED TRUST 2006-L3,
MORTGAGE-BACKED
CERTIFICATES, SERIES 2006-L3
|
STATE
OF_____________
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF___________
|
)
|
The
undersigned, being first duly sworn, deposes and says as follows:
1. The
undersigned is an officer of, the proposed Transferee of an Ownership Interest
in Class R Certificates (the “Certificate”) issued pursuant to the Pooling and
Servicing Agreement, dated as of September 1, 2006, (the “Agreement”), relating
to the above-referenced Certificates, among the IndyMac MBS, Inc. (the
“Depositor”), IndyMac Bank, F.S.B., as seller (the “Seller”) and servicer (the
“Servicer”) and Deutsche Bank National Trust Company, as trustee (the
“Trustee”). Capitalized terms used, but not defined herein 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 either (i) for its own account or (ii) as nominee,
trustee or agent for another Person and has attached hereto an affidavit
from
such Person in substantially the same form as this affidavit. The Transferee
has
no knowledge that any such affidavit is false.
3. The
Transferee has been advised of, and understands that (i) a tax will be imposed
on Transfers of the Certificate to Persons that are not Permitted Transferees;
(ii) such tax will be imposed on the transferor, or, if such Transfer is
through
an agent (which includes a broker, nominee or middleman) to 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(d) of the Agreement
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(d) of the Agreement and the restrictions noted on the face of
the
Certificate. The Transferee understands and agrees that any breach of any
of the
representations included herein shall render the Transfer to the Transferee
contemplated hereby null and void.
6. The
Transferee agrees to require a Transfer Affidavit from any Person to whom
the
Transferee attempts to Transfer its Ownership Interest in the Certificate,
and
in connection with any Transfer by a Person for whom the Transferee is acting
as
nominee, trustee or agent, and the Transferee will not Transfer its Ownership
Interest or cause any Ownership Interest to be Transferred to any Person
that
the Transferee knows is not a Permitted Transferee. In connection with any
such
Transfer by the Transferee, the Transferee agrees to deliver to the Trustee
a
certificate substantially in the form set forth as Exhibit L to the Agreement
(a
“Transferor Certificate”) to the effect that such Transferee has no actual
knowledge that the Person to which the Transfer is to be made is not a Permitted
Transferee.
7. The
Transferee does not have the intention to impede the assessment or collection
of
any tax legally required to be paid with respect to the
Certificate.
8. The
Transferee’s taxpayer identification number is _________________.
9. The
Transferee is a United States Person as defined in the Agreement.
10. The
Transferee is aware that the Certificate may be a “non-economic residual
interest” within the meaning of proposed Treasury regulations promulgated
pursuant to the Code and that the transferor of a non-economic residual interest
will remain liable for any taxes due with respect to the income on such residual
interest, unless no significant purpose of the transfer was to impede the
assessment or collection of tax.
11. The
Transferee is not an employee benefit plan that is subject to ERISA or a
plan
that is subject to Section 4975 of the Code, nor is it acting on behalf of
such
a plan.
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 _______, ____.
|
[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 __________, ____.
|
NOTARY
PUBLIC
|
|
My
Commission expires the ____ day of ________, ____.
|
EXHIBIT
N
[RESERVED]
EXHIBIT
O-1
DEPOSITOR
CERTIFICATION
FORM
OF CERTIFICATION TO BE PROVIDED BY THE DEPOSITOR WITH
FORM
10-K
Re:
INDYMAC
MBS, Inc.
IndyMac
Residential Mortgage-Backed Trust, Series 2006-L2
I,
[identify the certifying individual], certify that:
1. 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 Residential Mortgage-Backed Trust, Series 2006-L2 (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(s) required in this report
under Item 1123 of Regulation AB and except as disclosed in the Exchange
Act
Periodic Reports, the servicer(s) [has/have] fulfilled [its/their] obligations
under the servicing agreement(s) 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
12A-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]
|
EXHIBIT
O-2
TRUSTEE
CERTIFICATION
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 September
1,
2006 (the “Pooling Agreement”) by and among IndyMac Bank, F.S.B., as seller and
servicer, IndyMac MBS, Inc., as depositor and Deutsche Bank National Trust
Company, as trustee, pursuant to which was created the IndyMac Residential
Mortgage-Backed Trust, Series 2006-L2 (the “Trust”). Capitalized terms used
herein but not defined shall have the meanings assigned to them in the Pooling
and Servicing 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 Residential Mortgage-Backed
Trust, Series 2006-L2 (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 12A-18
and 15d-18 under the Exchange Act and Section 1122(b) of Reg AB ( the
“Attestation Report”) applicable to the Trustee and the Monthly Statements
(excluding information provided, or based on information provided, by the
Servicer or any servicer) and those items in Exhibit S attached to the Pooling
and Servicing Agreement which indicate the 4.03 statement or the Trustee
as the
responsible party during the Relevant Year. Based on my knowledge, the Relevant
Information, taken as a whole, does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
made, in light of the circumstances under which such statements were made,
not
misleading with respect to the period covered by this annual report;
and
3. Based
on
my knowledge, the distribution information required to be provided by the
Trustee under the Pooling and Servicing Agreement is included in the Monthly
Statements.
4. I
am
responsible for reviewing the activities performed by the Trustee, as servicer
under the Pooling and Servicing Agreement during the Relevant Year. Based
upon
the review required by the Pooling and Servicing 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 and
Servicing Agreement throughout the Relevant Year. Relevant Year shall mean
200__.
DATED
as
of _____________, 200____.
|
By:
|
|
|
Name:
|
|
|
Title:
|
EXHIBIT
P
[RESERVED]
EXHIBIT
Q
[RESERVED]
EXHIBIT
R
SERVICING
CRITERIA TO BE ADDRESSED
IN
ASSESSMENT OF COMPLIANCE
Key:
X
-
obligation
Where
there are multiple checks for criteria the attesting party will identify
in
their management assertion that they are attesting only to the portion of
the
distribution chain they are responsible for in the related transaction
agreements.
|
Reg
AB Reference
|
Servicing
Criteria
|
Primary
Servicer
|
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
|
X-1
|
1
- attest to knowledge but not to process
|
|
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
|
X
|
||
|
Cash
Collection and Administration
|
|||||
|
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
|
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
|
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
|
||
|
Investor
Remittances and Reporting
|
|||||
|
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
|
||
|
Pool
Asset Administration
|
|||||
|
1122(d)(4)(i)
|
Collateral
or security on pool assets is maintained as required by the transaction
agreements or related pool asset documents.
|
X
|
|||
|
1122(d)(4)(ii)
|
Pool
assets and related documents are safeguarded as required by the
transaction agreements
|
X
|
|||
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements
in the
transaction agreements.
|
X
|
X
|
||
|
1122(d)(4)(iv)
|
Payments
on pool assets, including any payoffs, made in accordance with
the related
pool asset documents are posted to the Servicer’s obligor records
maintained no more than two business days after receipt, or such
other
number of days specified in the transaction agreements, and allocated
to
principal, interest or other items (e.g., escrow) in accordance
with the
related pool asset documents.
|
X
|
|||
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the pool assets agree with the Servicer’s
records with respect to an obligor’s unpaid principal balance.
|
X
|
|||
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's pool assets
(e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
|||
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
|||
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period
a pool
asset is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent pool assets including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or unemployment).
|
X
|
|||
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for pool assets with variable
rates
are computed based on the related pool asset documents.
|
X
|
|||
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s pool asset documents,
on at least an annual basis, or such other period specified in
the
transaction agreements; (B) interest on such funds is paid, or
credited,
to obligors in accordance with applicable pool asset documents
and state
laws; and (C) such funds are returned to the obligor within 30
calendar
days of full repayment of the related pool assets, or such other
number of
days specified in the transaction agreements.
|
X
|
|||
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
X
|
|||
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the Servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
X
|
|||
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
X
|
|||
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
X
|
||
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set
forth in
the transaction agreements.
|
X
|
EXHIBIT
S
FORM
10-D, FORM 8-K AND FORM 10-K
REPORTING
RESPONSIBILITY
As
to
each item described below, the entity indicated as the Responsible Party
shall
be primarily responsible for reporting the information to the Trustee pursuant
to Section 3.24(a)(iv). If the Trustee is indicated below as to any item,
then
the Trustee is primarily responsible for obtaining that information.
Under
Item 1 of Form 10-D: a) items marked “4.03 statement” are required to be
included in the periodic Distribution Date statement under Section 6.07,
provided by the Trustee based on information received from the Servicer;
and b)
items marked “Form 10-D report” are required to be in the Form 10-D report but
not the 4.03 statement, provided by the party indicated. Information under
all
other Items of Form 10-D is to be included in the Form 10-D report.
|
Form
|
Item
|
Description
|
Responsible
Party
|
|
10-D
|
Must
be filed within 15 days of the distribution date for the asset-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.
|
4.03
statement
|
||
|
(2)
Cash flows received and the sources thereof for distributions,
fees and
expenses.
|
4.03
statement
|
||
|
(3)
Calculated amounts and distribution of the flow of funds for the
period
itemized by type and priority of payment, including:
|
4.03
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.
|
4.03
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.
|
4.03
statement
|
||
|
(iii)
Principal, interest and other distributions accrued and paid on
the
asset-backed securities by type and by class or series and any
principal
or interest shortfalls or carryovers.
|
4.03
statement
|
||
|
(iv)
The amount of excess cash flow or excess spread and the disposition
of
excess cash flow.
|
4.03
statement
|
||
|
(4)
Beginning and ending principal balances of the asset-backed
securities.
|
4.03
statement
|
||
|
(5)
Interest rates applicable to the pool assets and the asset-backed
securities, as applicable. Consider providing interest rate information
for pool assets in appropriate distributional groups or incremental
ranges.
|
4.03
statement
|
||
|
(6)
Beginning and ending balances of transaction accounts, such as
reserve
accounts, and material account activity during the period.
|
4.03
statement
|
||
|
(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.
|
4.03
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.
|
4.03
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.
|
4.03
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.
|
4.03
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.
|
4.03
statement
|
||
|
(12)
Material breaches of pool asset representations or warranties or
transaction covenants.
|
Form
10-D report: Securities Adminstrator (subject to Depositor
approval)
|
||
|
(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.
|
4.03
statement
|
||
|
(14)
Information regarding any new issuance of asset-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 prefunding 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 prefunding or revolving accounts, if
applicable.
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: Depositor
Form
10-D report: Servicer
Form
10-D report: Servicer
|
||
|
Item
1121(b) - Pre-Funding or Revolving Period Information
Updated
pool information as required under Item 1121(b).
|
Depositor
|
||
|
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
|
Sponsor
Depositor
Trustee
Depositor
Servicer
Servicer
|
||
|
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:
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*
|
Servicer
|
||
|
*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
Trustee
Trustee
|
||
|
*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.
Note:
disclosure not required as to definitive agreements that are fully
disclosed in the prospectus
|
Servicer;
or any of the following that is a party to the agreement if Servicer
is
not: Trustee, Sponsor, Depositor
|
||
|
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
Servicer, 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
|
Servicer
|
||
|
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 4.03 statement
|
Servicer
|
||
|
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
|
||
|
[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
|
||
|
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information
Determining
applicable disclosure threshold
Obtaining
required financial information or effecting incorporation by
reference
|
|||
|
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
|
Sponsor
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
Credit
Enhancer/Support Provider
Significant
Obligor
|
Sponsor
Depositor
Trustee
(only as to affiliations between the Trustee and such other parties
listed)
Servicer
Servicer
Trustee
Servicer
|
||
|
Item
1122 - Assessment of Compliance with Servicing
Criteria
|
Each
Party participating in the servicing function
|
||
|
Item
1123 - Servicer Compliance Statement
|
Servicer,
Servicer
|
||
