Exhibit 99.1
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INDYMAC ABS, INC.
Depositor
INDYMAC BANK, F.S.B.
Seller and Master Servicer
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.
Trustee
----------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of November 1, 2001
----------------------------------------
HOME EQUITY MORTGAGE LOAN ASSET-BACKED TRUST
Series SPMD 2001-C
HOME EQUITY MORTGAGE LOAN ASSET-BACKED CERTIFICATES
Series SPMD 2001-C
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Table of Contents
Page
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ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions.................................................................1
Section 1.02. Rules of Construction......................................................33
ARTICLE TWO
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
Section 2.01. Conveyance of Mortgage Loans................................................1
Section 2.02. Acceptance by the Trustee of the Mortgage Loans.............................5
Section 2.03. Representations, Warranties, and Covenants of the Seller and the
Master Servicer.............................................................8
Section 2.04. Representations and Warranties of the Depositor as to the Mortgage
Loans......................................................................10
Section 2.05. Delivery of Opinion of Counsel in Connection with Substitutions and
Repurchases................................................................11
Section 2.06. Execution and Delivery of Certificates.....................................11
Section 2.07. REMIC Matters..............................................................12
Section 2.08. Covenants of the Master Servicer...........................................12
Section 2.09. Subsequent Transfers.......................................................12
Section 2.10. Mandatory Prepayment.......................................................16
ARTICLE THREE
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01. Master Servicer to Service Mortgage Loans...................................1
Section 3.02. Subservicing; Enforcement of the Obligations of Subservicers................1
Section 3.03. [Reserved]..................................................................2
Section 3.04. No Contractual Relationship Between Subservicers and the Trustee............2
Section 3.05. Trustee to Act as Master Servicer...........................................2
Section 3.06. Collection of Mortgage Loan Payments; Servicing Accounts;
Collection Account; Certificate Account; Distribution Account;
Pre-Funding Account; Capitalized Interest Account...........................3
Section 3.07. Collection of Taxes, Assessments, and Similar Items; Escrow
Accounts....................................................................9
Section 3.08. Access to Certain Documentation and Information Regarding the
Mortgage Loans..............................................................9
Section 3.09. Permitted Withdrawals from the Certificate Account, the
Distribution Account and the Excess Reserve Fund Account...................10
Section 3.10. Maintenance of Hazard Insurance; Maintenance of Primary Insurance
Policies...................................................................12
Section 3.11. Enforcement of Due-On-Sale Clauses; Assumption Agreements..................13
i
Section 3.12. Realization Upon Defaulted Mortgage Loans; Repurchase of Certain
Mortgage Loans.............................................................15
Section 3.13. Trustee to Cooperate; Release of Mortgage Files............................18
Section 3.14. Documents, Records, and Funds in Possession of the Master Servicer
to be Held for the Trustee.................................................19
Section 3.15. Servicing Compensation.....................................................19
Section 3.16. Access to Certain Documentation............................................20
Section 3.17. Annual Statement as to Compliance..........................................20
Section 3.18. Annual Independent Public Accountants' Servicing Statement;
Financial Statements.......................................................21
Section 3.19. Errors and Omissions Insurance; Fidelity Bonds.............................21
Section 3.20. Prepayment Charges.........................................................22
ARTICLE FOUR
DISTRIBUTIONS AND ADVANCES BY THE MASTER SERVICER
Section 4.01. Advances....................................................................1
Section 4.02. Priorities of Distribution..................................................1
Section 4.03. Monthly Statements to Certificateholders....................................4
Section 4.04. [Reserved]..................................................................7
Section 4.05. [Reserved]..................................................................7
Section 4.06. [Reserved]..................................................................7
Section 4.07. Certain Matters Relating to the Determination of LIBOR......................7
ARTICLE FIVE
THE CERTIFICATES
Section 5.01. The Certificates............................................................1
Section 5.02. Certificate Register; Registration of Transfer and Exchange of
Certificates................................................................2
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates...........................7
Section 5.04. Persons Deemed Owners.......................................................7
Section 5.05. Access to List of Certificateholders' Names and Addresses...................7
Section 5.06. Maintenance of Office or Agency.............................................8
ARTICLE SIX
THE DEPOSITOR AND THE MASTER SERVICER
Section 6.01. Respective Liabilities of the Depositor and the Master Servicer.............1
Section 6.02. Merger or Consolidation of the Depositor or the Master Servicer.............1
Section 6.03. Limitation on Liability of the Depositor, the Seller, the Master
Servicer, and Others........................................................1
Section 6.04. Limitation on Resignation of the Master Servicer............................2
ii
ARTICLE SEVEN
DEFAULT
Section 7.01. Events of Default...........................................................1
Section 7.02. Trustee to Act; Appointment of Successor....................................2
Section 7.03. Notification to Certificateholders..........................................3
ARTICLE EIGHT
CONCERNING THE TRUSTEE
Section 8.01. Duties of the Trustee.......................................................1
Section 8.02. Certain Matters Affecting the Trustee.......................................2
Section 8.03. Trustee Not Liable for Certificates or Mortgage Loans.......................3
Section 8.04. Trustee May Own Certificates................................................3
Section 8.05. Trustee's Fees and Expenses.................................................3
Section 8.06. Eligibility Requirements for the Trustee....................................4
Section 8.07. Resignation and Removal of the Trustee......................................4
Section 8.08. Successor Trustee...........................................................5
Section 8.09. Merger or Consolidation of the Trustee......................................6
Section 8.10. Appointment of Co-Trustee or Separate Trustee...............................6
Section 8.11. Tax Matters.................................................................7
Section 8.12. Periodic Filings...........................................................10
Section 8.13. [Reserved].................................................................10
Section 8.14. Tax Classification of the Excess Reserve Fund Account......................10
ARTICLE NINE
TERMINATION
Section 9.01. Termination upon Liquidation or Purchase of the Mortgage Loans..............1
Section 9.02. Final Distribution on the Certificates......................................1
Section 9.03. Additional Termination Requirements.........................................3
ARTICLE TEN
MISCELLANEOUS PROVISIONS
Section 10.01. Amendment...................................................................1
Section 10.02. Recordation of Agreement; Counterparts......................................3
Section 10.03. Governing Law...............................................................3
Section 10.04. Intention of Parties........................................................3
Section 10.05. Notices.....................................................................4
Section 10.06. Severability of Provisions..................................................5
Section 10.07. Assignment..................................................................5
Section 10.08. Limitation on Rights of Certificateholders..................................5
Section 10.09. Inspection and Audit Rights.................................................6
Section 10.10. Certificates Nonassessable and Fully Paid...................................6
Section 10.11. Official Record.............................................................6
Section 10.12. Qualifying Special Purpose Entity...........................................6
iii
SCHEDULES
Schedule I: Mortgage Loan Schedule.......................................................... S-I-1
Schedule II: Representations and Warranties of the
Seller/Master Servicer......................................................... S-II-1
Schedule III: Representations and Warranties as to
the Mortgage Loans.............................................................S-III-1
Schedule IV: [Reserved]
Schedule V: Prepayment Charge Schedule ......................................................S-V-1
EXHIBITS
Exhibit A: Form of Class A, M, and B Certificate..............................................A-1
Exhibit B: Form of Class P Certificate........................................................B-1
Exhibit C: Form of Class AR Certificate.......................................................C-1
Exhibit D: Form of Class X Certificate........................................................D-1
Exhibit E: Form of Reverse of Certificates....................................................E-1
Exhibit F: [Reserved].........................................................................F-1
Exhibit G: Form of Initial Certification of Trustee...........................................G-1
Exhibit H: Form of Final Certification of Trustee.............................................H-1
Exhibit I: Form of Transfer Affidavit.........................................................I-1
Exhibit J: Form of Transferor Certificate.....................................................J-1
Exhibit K: [Reserved].........................................................................K-1
Exhibit L: Form of Rule 144A Letter...........................................................L-1
Exhibit M: Form of Request for Release (for Trustee)..........................................M-1
Exhibit N: Form of Request for Release (Mortgage Loan
Paid in Full, Repurchased, and Released)...........................................N-1
Exhibit O: [Reserved].........................................................................O-1
Exhibit Q: Form of Subsequent Transfer Agreement..............................................Q-1
iv
THIS POOLING AND SERVICING AGREEMENT, dated as of November 1, 2001,
among INDYMAC ABS, INC., a Delaware corporation, as depositor (the
"Depositor"), INDYMAC BANK, F.S.B. ("IndyMac"), a federal savings bank, as
seller (in that capacity, the "Seller") and as master servicer (in that
capacity, the "Master Servicer"), and BANKERS TRUST COMPANY OF CALIFORNIA,
N.A., a national banking association, as trustee (the "Trustee"),
WITNESSETH THAT
In consideration of the mutual agreements herein contained, the
parties agree as follows.
PRELIMINARY STATEMENT
The Depositor is the owner of the Trust Fund that is hereby conveyed
to the Trustee in return for the Certificates. The Trust Fund for federal
income tax purposes will consist of four REMICs: the Subsidiary REMIC A, the
Subsidiary REMIC B, the Intermediate REMIC, and the Master REMIC. The
Subsidiary REMIC A will consist of all of the assets constituting the Loan
Group 1 Mortgage Loans and $50 put in trust for the benefit of the Class
LG1-SP Regular Interest (excluding the Pre-funding Account, the Capitalized
Interest Account, and the Excess Reserve Fund Account) and will be evidenced
by (i) the Subsidiary REMIC A Regular Interests which will be uncertificated
and will represent the "regular interests" in the Subsidiary REMIC A and (ii)
the SAR Interest as the single "residual interest" in the Subsidiary REMIC A.
The Subsidiary REMIC B will consist of all of the assets constituting the Loan
Group 2 Mortgage Loans and $50 put in trust for the benefit of the Class
LG2-SP Regular Interest (excluding the Pre-funding Account, the Capitalized
Interest Account, and the Excess Reserve Fund Account) and will be evidenced
by (i) the Subsidiary REMIC B Regular Interests, which will be uncertificated
and will represent the "regular interests" in the Subsidiary REMIC B and (ii)
the SBR Interest as the single "residual interest" in the Subsidiary REMIC B.
The Trustee will hold the Subsidiary REMIC A Regular Interests and the
Subsidiary B REMIC Regular Interests for the benefit of the Intermediate
REMIC. The Intermediate REMIC will consist of the Subsidiary REMIC A Regular
Interests and Subsidiary REMIC B Regular Interests and will be evidenced by
(i) the Intermediate REMIC Regular Interest, which will be uncertificated and
will represent the "regular interests" in the Intermediate REMIC and (ii) the
IR Interest as the single "residual interest" in the Intermediate REMIC. The
Trustee will hold the Intermediate REMIC Regular Interests for the benefit of
the Master REMIC. The Master REMIC will consist of the Intermediate REMIC
Regular Interests and will be evidenced by (i) the Regular Certificates, which
will represent the "regular interests" in the Master REMIC and (ii) the MR
Interest as the single "residual interest" in the Master REMIC. The Class AR
Certificates will represent beneficial ownership of the SAR Interest, the SBR
Interest, IR Interest, and the MR Interest. The "latest possible maturity
date" for federal income tax purposes of all interests created hereby will be
the Latest Possible Maturity Date.
1
The Subsidiary REMIC A
The following table sets forth Class Designation, the Initial
Principal Balance, the Pass-Through Rate and the Rate Change Date for each
Subsidiary REMIC A Regular Interest:
----------------------------------------------------------------------
Class Initial
Designation Principal Balance Pass-Through Rate Rate Change Date
----------------------------------------------------------------------
LG1-SA1 $ 1,300,000.00 (1) Feb-02
----------------------------------------------------------------------
LG1-SA2 $ 1,000,000.00 (1) May-02
----------------------------------------------------------------------
LG1-SA3 $ 1,500,000.00 (1) Aug-02
----------------------------------------------------------------------
LG1-SA4 $ 1,200,000.00 (1) Nov-02
----------------------------------------------------------------------
LG1-SA5 $ 1,100,000.00 (1) Feb-02
----------------------------------------------------------------------
LG1-SA6 $ 800,000.00 (1) May-03
----------------------------------------------------------------------
LG1-SA7 $ 1,100,000.00 (1) Aug-03
----------------------------------------------------------------------
LG1-SA8 $ 1,000,000.00 (1) Nov-03
----------------------------------------------------------------------
LG1-SA9 $ 700,000.00 (1) Feb-04
----------------------------------------------------------------------
LG1-SA10 $ 900,000.00 (1) May-04
----------------------------------------------------------------------
LG1-SA11 $ 4,000,000.00 (1) May-04
----------------------------------------------------------------------
LG1-SB (2) (1) N/A
----------------------------------------------------------------------
LG1-OC $ 924,497.14 (1) N/A
---------------------------------------------------------------------
LG1-SP $ 50.00 (3) N/A
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(1) The Adjusted Group 1 Mortgage WAC Rate.
(2) The Class LG1-SB regular interest will have a principal balance equal
to the principal balance of all Loan Group 1 Mortgage Loans (including
any amounts in the Pre-Funding Account allocable to Group I) the
principal balance of the Class LG1-SA regular interests, and the
Class LG1-OC.
(3) The Class LG1-SP regular interest will have a Pass-Through Rate equal
to zero, but will be entitled to all Prepayment Charges.
All payments of principal and realized losses generated by the Loan
Group 1 Mortgage Loans shall be allocated first to the Class LG1-OC Regular
Interest (until reduced to zero) and then to the Class LG1-SB Regular
Interests (until reduced to zero). Subsequent realized losses and payments of
principal will be allocated to the Class LG1-SA1 Regular Interests (until
reduced to zero) and then to the outstanding Class LG1-SA Regular Interest
with the lowest denomination until the Regular Interest is paid in full or
eliminated by such losses.
The Subsidiary REMIC B
The following table sets forth Class Designation, the Initial Principal
Balance, the Pass-Through Rate, and the Rate Change Date for each Subsidiary
REMIC B Regular Interest:
2
----------------------------------------------------------------------
Class Initial
Designation Principal Balance Pass-Through Rate Rate Change Date
----------------------------------------------------------------------
LG2-SA1 $ 1,600,000.00 (1) Feb-02
----------------------------------------------------------------------
LG2-SA2 $ 1,400,000.00 (1) May-02
----------------------------------------------------------------------
LG2-SA3 $ 2,000,000.00 (1) Aug-02
----------------------------------------------------------------------
LG2-SA4 $ 1,600,000.00 (1) Nov-02
----------------------------------------------------------------------
LG2-SA5 $ 1,500,000.00 (1) Feb-02
----------------------------------------------------------------------
LG2-SA6 $ 1,200,000.00 (1) May-03
----------------------------------------------------------------------
LG2-SA7 $ 1,300,000.00 (1) Aug-03
----------------------------------------------------------------------
LG2-SA8 $ 1,400,000.00 (1) Nov-03
----------------------------------------------------------------------
LG2-SA9 $ 900,000.00 (1) Feb-04
----------------------------------------------------------------------
LG2-SA10 $ 700,000.00 (1) May-04
----------------------------------------------------------------------
LG2-SA11 $ 5,900,000.00 (1) May-04
----------------------------------------------------------------------
LG2-SB (2) (1) N/A
----------------------------------------------------------------------
LG2-OC $ 7,475,502.86 (1) N/A
----------------------------------------------------------------------
LG2-SP $ 50.00 (3) N/A
----------------------------------------------------------------------
(1) The Adjusted Group 2 Mortgage WAC Rate.
(2) The Class LG2-SB regular interest will have a principal balance equal
to the principal balance of all Loan Group 2 Mortgage Loans (including
any amounts in the Pre-Funding Account allocable to Group 2) less the
principal balance of the Class LG2-SA Regular Interests and the Class
LG2-OC.
(3) The Class LG2-SP regular interest will have a Pass-Through Rate equal
to zero, but will be entitled to all Prepayment Charges.
All payments of principal and realized losses generated by the Loan
Group 2 Mortgage Loans shall be allocated first to the Class LG2-OC Regular
Interest (until reduced to zero) and then to the Class LG2-SB Regular
Interests (until reduced to zero). Subsequent realized losses and payments of
principal will be allocated to the Class LG1-SA1 Regular Interests (until
reduced to zero) and then to the outstanding Class LG2-SA regular interest
with the lowest denomination until the Regular Interest is paid in full or
eliminated by such losses.
The Intermediate REMIC
The following table sets forth Class Designation, the Initial Principal
Balance, the Pass-Through Rate, and the Corresponding Master REMIC Class for
each Intermediate REMIC Regular Interest:
3
===================== ============================== ============= ==================== =============
Pass- Corresponding
Class Through Master REMIC Loan
Designation Initial Principal Balance Rate Class Group
--------------------- ------------------------------ ------------- -------------------- -------------
Class IAF-A 1/2 Corresponding Master (1) Class AF-A 1
REMIC Class Balance
--------------------- ------------------------------ ------------- -------------------- -------------
Class IAF-B1 1/2 Corresponding Master (1) Class AF-B1 1
REMIC Class Balance
--------------------- ------------------------------ ------------- -------------------- -------------
Class IAF-B2 1/2 Corresponding Master (1) Class AF-B2 1
REMIC Class Balance
--------------------- ------------------------------ ------------- -------------------- -------------
Class IAF-B3 1/2 Corresponding Master (1) Class AF-B3 1
REMIC Class Balance
--------------------- ------------------------------ ------------- -------------------- -------------
Class IAF-B4 1/2 Corresponding Master (1) Class AF-B4 1
REMIC Class Balance
--------------------- ------------------------------ ------------- -------------------- -------------
Class IAV-A 1/2 Corresponding Master (2) Class AV-A 2
REMIC Class Balance
--------------------- ------------------------------ ------------- -------------------- -------------
Class IAV-B 1/2 Corresponding Master (2) Class AV-B 2
REMIC Class Balance
--------------------- ------------------------------ ------------- -------------------- -------------
Class I1A-IO (3) (3) Class A-IO 1
--------------------- ------------------------------ ------------- -------------------- -------------
Class I2A-IO (3) (3) Class A-IO 2
--------------------- ------------------------------ ------------- -------------------- -------------
Class I1M-1 (4) (5) Class M-1 N/A
--------------------- ------------------------------ ------------- -------------------- -------------
Class I1M-2 (4) (5) Class M-2 N/A
--------------------- ------------------------------ ------------- -------------------- -------------
Class I1B (4) (5) Class B N/A
--------------------- ------------------------------ ------------- -------------------- -------------
Class I2M-1 (4) (5) Class M-1 N/A
--------------------- ------------------------------ ------------- -------------------- -------------
Class I2M-2 (4) (5) Class M-2 N/A
--------------------- ------------------------------ ------------- -------------------- -------------
Class I2B (4) (5) Class B N/A
--------------------- ------------------------------ ------------- -------------------- -------------
Group 1 Accrual 1/2 Group 1 Mortgage Pool (1) N/A 1
Directed Class plus 1/2 the Group 1
Overcollateralized Amount
less1/2the Class LG1-OC
regular interest
--------------------- ------------------------------ ------------- -------------------- -------------
Group 2 Accrual 1/2 Group 2 Mortgage Pool (2) N/A 2
Directed Class plus 1/2 the Group 2
Overcollateralized Amount
less1/2the Class LG2-OC
regular interest
--------------------- ------------------------------ ------------- -------------------- -------------
Class XX X/X X/X X/X X/X
--------------------- ------------------------------ ------------- -------------------- -------------
Class IP 100.00 (6)
--------------------- ------------------------------ ------------- -------------------- -------------
Class IOC (7) (7)
===================== ============================== ============= ==================== =============
(1) The Adjusted Group 1 Net WAC Rate.
(2) The Adjusted Group 2 Net WAC Rate.
(3) The Class I1A-IO regular interest will represent 11 regular interests
numbered 1 through 11. Each Class I1A-IO regular interest will not be
entitled to any principal but will have a notional balance equal to
the principal balance of the Class LG1-SA Regular Interest with the
same numerical denomination and for each regular interest, a Pass-
Through Rate equal to (a) from the Closing Date to the Rate Change
Date, 6.50%, and (b) thereafter, 0%. The Class I2A-IO regular
interest will represent 11 regular interests numbered 1 through 11.
Each Class I2A-IO regular interest will not be entitled to any
4
principal but will have a notional balance equal to the principal
balance of the Class LG2-SA Regular Interest with the same
numerical denomination and for each regular interest, a Pass-Through
Rate equal to (a) from the Closing Date to the Rate Change Date, 6.50%,
and (b) thereafter, 0%.
(4) An amount equal to 1/2 of the Corresponding Master REMIC Class balance.
(5) A rate equal to the Sub WAC rate.
(6) The Class IP regular interest will have a Pass-Through Rate equal to
zero, but will be entitled to all Prepayment Charges. For federal
income tax purposes, the Class IP regular interest will be entitled to
100% of the amounts received on the Class LG1-SP and LG2-SP regular
interest.
(7) The Class IOC regular interest will have a principal balance equal to
the sum of (1) the Class LG1-OC regular interest plus (b) the Class
LG2-OC regular interest and will have a Pass-Through Rate equal to the
Adjusted Net WAC Rate.
Loan Group 1 Intermediate Classes
On each Distribution Date, 50% of the increase in the Group 1
Overcollateralized Amount will be payable as a reduction of the principal
balances of the Class IAF-A Regular Interest, Class IAF-B1 Regular Interest,
Class IAF-B2 Regular Interest, Class IAF-B3 Regular Interest, Class IAF-B4
Regular Interest, Class I1M-1 Regular Interest, Class I1M-2 Regular Interest,
Class I1B Regular Interest and the Class IOC Regular Interest (together, the
"Group 1 Intermediate REMIC Accretion Directed Classes") to each such class in
an amount equal to 1/2 of the interest paid in reduction of the principal
balance of the Corresponding Class of Master REMIC Interest and will be
accrued and added to the principal balance of the Group 1 Accrual Directed
Class. On each Distribution Date, the increase in the principal balance of the
Group 1 Accrual Directed Class may not exceed interest accruals for such
Distribution Date for the Group 1 Accrual Directed Class. In the event that:
(i) 50% of the increase in the Group 1 Overcollateralized Amount exceeds (ii)
interest accruals on the Group 1 Accrual Directed Class for such Distribution
Date, the excess for such Distribution Date (accumulated with all such
excesses for all prior Distribution Dates) will be added to any increase in
the Group 1 Overcollateralized Amount for purposes of determining the amount
of interest accrual on the Group 1 Accrual Directed Class payable as principal
on the Group 1 Accrual Directed Class on the next Distribution Date pursuant
to the first sentence of this paragraph.
All payments of principal generated by the Mortgage Loans shall be
allocated 50% to the Group 1 Accrual Directed Class, and 50% to the Group 1
Intermediate REMIC Accretion Directed Classes to each such Class in an amount
equal to 1/2 of the interest paid in reduction of the principal balance of the
Corresponding Class of Master REMIC Interest until paid in full of
5
the interest paid in reduction of the principal balance of the Corresponding
Class of Master REMIC Interest. Notwithstanding the above, principal payments
allocated to the Group 1 Intermediate REMIC Accretion Directed Classes that
result in the reduction in the Overcollateralized Amount shall be allocated to
the Group 1 Accrual Directed Class (until paid in full). Realized losses shall
be applied so that after all distributions have been made on each Distribution
Date (i) the principal balances of each of the Group 1 Intermediate REMIC
Accretion Directed Classes is equal to 50% of the principal balance of their
Corresponding Class and (ii) the Group 1 Accrual Directed Class is equal to 50%
of the aggregate principal balance of the Mortgage Pool plus 50% of the Group 1
Overcollateralized Amount.
Loan Group 2 Intermediate Classes
On each Distribution Date, 50% of the increase in the Group 2
Overcollateralized Amount for Certificate Group 2 will be payable as a
reduction of the principal balances of the Class IAV-A Regular Interest, Class
IAV-B Regular Interest, Class I2M-1 Regular Interest, Class I2M-2 Regular
Interest, and Class I2B Regular Interest (together, the "Group 2 Intermediate
REMIC Accretion Directed Classes") to each such class in an amount equal to
1/2 of the interest paid in reduction of the principal balance of the
Corresponding Class of Master REMIC Interest and will be accrued and added to
the principal balance of the Group 2 Accrual Directed Class. On each
Distribution Date, the increase in the principal balance of the Group 2
Accrual Directed Class may not exceed interest accruals for such Distribution
Date for the Group 2 Accrual Directed Class. In the event that: (i) 50% of the
increase in the Group 2 Overcollateralized Amount exceeds (ii) interest
accruals on the Group 2 Accrual Directed Class for such Distribution Date, the
excess for such Distribution Date (accumulated with all such excesses for all
prior Distribution Dates) will be added to any increase in the Group 2
Overcollateralized Amount for purposes of determining the amount of interest
accrual on the Group 2 Accrual Directed Class payable as principal on the
Group 2 Accrual Directed Class on the next Distribution Date pursuant to the
first sentence of this paragraph.
All payments of principal generated by the Mortgage Loans shall be
allocated 50% to the Group 2 Accrual Directed Class, and 50% to the Group 2
Intermediate REMIC Accretion Directed Classes to each such Class in an amount
equal to 1/2 of the interest paid in reduction of the principal balance of the
Corresponding Class of Master REMIC Interest until paid in full of the
interest paid in reduction of the principal balance of the Corresponding Class
of Master REMIC Interest. Notwithstanding the above, principal payments
allocated to the Group 2 Intermediate REMIC Accretion Directed Classes that
result in the reduction in the Overcollateralized Amount shall be allocated to
the Group 2 Accrual Directed Class (until paid in full). Realized losses shall
be applied so that after all distributions have been made on each Distribution
Date (i) the principal balances of each of the Group 2 Intermediate REMIC
Accretion Directed Class is equal to 50% of the principal balance of its
Corresponding Class, and (ii) the Group 2 Accrual Directed Class is equal to
50% of the aggregate principal balance of the Mortgage Pool plus 50% of the
Group 2 Overcollateralized Amount.
6
The Master REMIC
The following table sets forth characteristics of the Certificates,
together with the minimum denominations and integral multiples in excess
thereof in which such Classes shall be issuable (except that one Certificate
of each Class of Certificates may be issued in a different amount and, in
addition, one Residual Certificate representing the Tax Matters Person
Certificate may be issued in a different amount):
=====================================================================================================
Class Certificate Pass-Through Minimum Integral Multiples in
Balance Rate Denomination Excess of Minimum
------------------------------------------------------------------------------------------------------
Class AF-A $104,000,000.00 4.89% $25,000 $1,000
------------------ --------------------- ------------- ------------------ --------------------------
Class AF-B1 $42,500,000.00 (1) $25,000 $1,000
------------------ --------------------- ------------- ------------------ --------------------------
Class AF-B2 $31,300,000.00 4.53% $25,000 $1,000
------------------ --------------------- ------------- ------------------ --------------------------
Class AF-B3 $16,200,000.00 6.04% $25,000 $1,000
------------------ --------------------- ------------- ------------------ --------------------------
Class AF-B4 $10,000,000.00 5.68% $25,000 $1,000
------------------ --------------------- ------------- ------------------ --------------------------
Class AV-A $140,000,000.00 (1) $25,000 $1,000
------------------ --------------------- ------------- ------------------ --------------------------
Class AV-B $49,600,000.00 (1) $25,000 $1,000
------------------ --------------------- ------------- ------------------ --------------------------
Class A-IO (6) 6.50% $25,000 $1,000
------------------ --------------------- ------------- ------------------ --------------------------
Class M-1 $33,600,000.00 (1) $25,000 $1,000
------------------ --------------------- ------------- ------------------ --------------------------
Class M-2 $25,200,000.00 (1) $25,000 $1,000
------------------ --------------------- ------------- ------------------ --------------------------
Class B $19,200,000.00 (1) $25,000 $1,000
------------------ --------------------- ------------- ------------------ --------------------------
Class AR $100.00 N/A $100 N/A
------------------ --------------------- ------------- ------------------ --------------------------
Class P $100.00 (2) $100 $100
------------------ --------------------- ------------- ------------------ --------------------------
Class OC(3) (4) (4) N/A N/A
------------------ --------------------- ------------- ------------------ --------------------------
Class X1(3) (5) (5) N/A N/A
================== ===================== ============= ================== ==========================
--------------
(1) LIBOR plus the related certificate's Class Margin.
(2) The Class P Certificate will have a Pass-Through Rate equal to zero,
but will be entitled to all Prepayment Charges. For federal income tax
purposes, the Class P Certificate will be entitled to 100% of the amounts
received on the Class IP regular interest.
(3) The Class OC regular interest and Class X1 regular interest will be
combined and issued together as the Class X Certificate.
(4) The Class OC Certificate will have a principal balance equal to the
Initial Overcollateralized Amount, and will have a Pass-Through Rate equal to
zero.
(5) As to any Distribution Date, the Class X-1 regular interest will have
a Notional Balance equal to the Pool Stated Principal and the Pass-Through Rate
for the Class X1 regular interest shall equal the excess of: (i) the Adjusted
Net WAC Rate over (ii) the product of: (A) two and
7
(B) the weighted average Pass-Through Rate of the Intermediate REMIC Regular
Interests, where the Accrual Directed Class is subject to a cap equal to zero
and each Intermediate REMIC Accretion Directed Class is subject to a cap equal
to the Pass-Through Rate on its Corresponding Class.
(6) The Class A-IO Certificate will not have a principal balance but will
have a notional balance equal to the sum of the notional balances of Class
I1A-IO and Class I2A-IO, and will be entitled to 100% of the amounts
distributable on Class I1A-IO and Class I2A-IO.
The minimum denomination for each Class of Certificates, other than
the Class P, Class AR, and the Class X Certificates, will be $25,000. The
Class P, Class AR, and the Class X Certificates will each represent a 100%
Percentage Interest in such class.
Set forth below is designations of Classes of Certificates to the
categories used herein:
Book-Entry Certificates.................All Classes of Certificates other than the Physical
Certificates.
Group 1 Certificates....................Class AF-A, Class AF-B1, Class AF-B2, Class AF-B3, and Class
AF-B4 Certificates.
Group 2 Certificates....................Class AV-A and Class AV-B Certificates.
Group 1A Certificates ..................Class AF-A Certificates.
Group 1B Certificates ..................Class AF-B1, Class AF-B2, Class AF-B3, and Class AF-B4
Certificates.
Group 2A Certificates ..................Class AV-A Certificates.
Group 2B Certificates ..................Class AV-B Certificates.
Mezzanine Certificates .................Class M-1 and Class M-2 Certificates.
Subordinated Certificates...............Mezzanine Certificates and Class B Certificates.
Adjustable Rate Certificates............Class AF-B1 Certificates, Group 2 Certificates, Class A-IO
Certificates, and Subordinate Certificates.
Fixed Rate Certificates.................Group 1 Certificates (other than Class AF-B1 Certificates).
ERISA-Restricted Certificates...........Class AR, Class P, and Class X Certificates.
LIBOR Certificates......................Adjustable Rate Certificates.
Offered Certificates....................All Classes of Certificates other than the Private Certificates.
Physical Certificates...................Class AR, Class P, and Class X Certificates.
Private Certificates....................Class X and Class P Certificates.
Rating Agencies.........................Xxxxx'x, S&P, and Fitch.
8
Regular Certificates....................All Classes of Certificates other than the Class AR and Class P
Certificates.
Residual Certificates...................Class AR Certificates.
References to "Class A" are references to Certificates of either or
both Certificate Groups of similar designations and the Class A-IO
Certificates, as the context requires.
9
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions.
Unless the context requires a different meaning, capitalized terms
are used in this Agreement as defined below.
Accrued Certificate Interest Distribution Amount: For any
Distribution Date for each Class of Certificates (other than the Class P,
Class AR, and Class X Certificates), the amount of interest accrued during the
related Interest Accrual Period at the applicable Pass-Through Rate on the
related Class Certificate Balance or Notional Amount immediately before the
Distribution Date.
Adjusted Group 1 Mortgage WAC Rate: The weighted average of the
Adjusted Net Mortgage Rates in effect on the beginning of the related
Remittance Period for the Group 1 Mortgage Loans.
Adjusted Group 2 Mortgage WAC Rate: The weighted average of the
Adjusted Net Mortgage Rates in effect on the beginning of the related
Remittance Period for the Group 2 Mortgage Loans.
Adjusted Group 1 Net WAC Rate: A rate equal to (a) the Adjusted Group
1 Mortgage WAC Rate less (b) the interest paid on the Group 1 Component of the
Class A-IO Certificate, divided by Group 1 Mortgage Loans. For federal income
tax purposes, the Adjusted Group 1 Net WAC Rate will equal the weighted
average of the Subsidiary REMIC A regular interests where (a) from the Closing
Date to each LG1-SA regular interest's Rate Change Date, said LG1-SA regular
interest is capped at the Adjusted Group 1 Net WAC Rate minus 6.50, and (b)
from thereafter, it is capped at the Adjusted Group 1 Net WAC Rate (adjusted
for the appropriate day counting convention).
Adjusted Group 2 Net WAC Rate: A rate equal to (a) the Adjusted Group
2 Mortgage WAC Rate less (b) the interest paid on the Group 2 Component of the
Class A-IO Certificate, divided by Group 2 Mortgage Loans. For federal income
tax purposes, the Adjusted Group 2 Net WAC Rate will equal the weighted
average of the Subsidiary REMIC A regular interests where (a) from the Closing
Date to each LG2-SA regular interest's Rate Change Date, said LG2-SA regular
interest is capped at the Adjusted Group 2 Net WAC Rate minus 6.50, and (b)
from thereafter, it is capped at the Adjusted Group 2 Net WAC Rate (adjusted
for the appropriate day counting convention).
Adjusted Mortgage Rate: As to each Mortgage Loan and at any time, the
per annum rate equal to the Mortgage Rate less the Master Servicing Fee Rate.
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Adjusted Mortgage WAC Rate: The weighted average of the Adjusted Net
Mortgage Rates in effect on the beginning of the related Remittance Period for
the Group 1 and Group 2 Mortgage Loans.
Adjusted Net Mortgage Rate: As to each Mortgage Loan and at any time,
the per annum rate equal to the Mortgage Rate less the Expense Fee Rate.
Adjusted Net WAC Rate: The weighted average rate of the Adjusted
Group 1 Net WAC Rate and Adjusted Group 2 Net WAC Rate.
Adjustment Date: As to any Mortgage Loan in Loan Group 2, the first
Due Date on which the related Mortgage Rate adjusts as provided in the related
Mortgage Note and each Due Date thereafter on which the Mortgage Rate adjusts
as provided in the related Mortgage Note.
Advance: The payment required to be made by the Master Servicer for
any Distribution Date pursuant to Section 4.01, the amount of that payment
being equal to the aggregate of payments of principal and interest (net of the
Master Servicing Fee and the Servicing Fee) on the Mortgage Loans that were
due during the related Remittance Period and not received as of the close of
business on the related Determination Date, less the aggregate amount of any
delinquent payments that the Master Servicer has determined would constitute a
Nonrecoverable Advance if advanced.
AF-B4 Share: The product of the Subgroup 1B Principal Distribution
Amount for the relevant Distribution Date and a fraction whose numerator is
the Class Certificate Balance of the Class AF-B4 Certificates immediately
before that Distribution Date and whose denominator is the aggregate Class
Certificate Balances of the Subgroup 1B Certificates immediately before that
Distribution Date.
Agreement: This Pooling and Servicing Agreement.
Amount Held for Future Distribution: For any Distribution Date, the
aggregate amount held in the Certificate Account at the close of business on
the related Determination Date on account of (i) Principal Prepayments and
Liquidation Proceeds on the Mortgage Loans received after the end of the
preceding calendar month and (ii) all Scheduled Payments on the Mortgage Loans
due after the end of the related Remittance Period.
Applied Realized Loss Amount: For any Distribution Date, the excess
of the aggregate Class Certificate Balance of the Offered Certificates over
the aggregate Stated Principal Balance of all of the Mortgage Loans as of the
last day of the preceding Remittance Period plus the amount in the Pre-Funding
Account excluding investment earnings.
Available Funds: For any Distribution Date are the excess of receipts
over expenses.
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The receipts are the sum of
(i) all scheduled installments of interest (net of the related
Expense Fees) and principal due on the Due Date on the Mortgage Loans in the
related Remittance Period and received by the related Determination Date,
together with any related Advances;
(ii) all Insurance Proceeds and Liquidation Proceeds during the
preceding calendar month (in each case, net of unreimbursed expenses incurred
in connection with a liquidation or foreclosure);
(iii) all partial or full prepayments on the Mortgage Loans received
during the preceding calendar month together with all Compensating Interest;
(iv) the Unused Pre-Funding Amount;
(v) the Capitalized Interest Requirement; and
(vi) amounts received for the Distribution Date as the Substitution
Adjustment Amount or purchase price of a Deleted Mortgage Loan or a Mortgage
Loan repurchased by the Seller or the Master Servicer as of the Distribution
Date.
The expenses are the sum of
(i) amounts in reimbursement for Advances previously made with respect
to the Mortgage Loans and other amounts reimbursable to the Master Servicer
with respect to the Mortgage Loans pursuant to the Agreement; and
(ii) the Trustee's Fee.
Basic Principal Distribution Amount: For any Distribution Date, the
excess of (i) the Principal Remittance Amount for the Distribution Date over
(ii) the Excess Subordinated Amount for the Distribution Date.
Blanket Mortgage: The mortgages encumbering a Cooperative Property.
Book-Entry Certificates: As specified in the Preliminary Statement.
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii)
a day on which banking institutions in the City of New York, New York, or the
State of California, or the city in which the Corporate Trust Office of the
Trustee is located are authorized or obligated by law or executive order to be
closed.
Capitalized Interest Account: The separate Eligible Account created
and maintained by the Trustee pursuant to Section 3.06 in the name of the
Trustee for the benefit of the Certificateholders, if the Capitalized Interest
Requirement is greater than zero, and designated "Bankers Trust Company of
California, N.A., in trust for registered holders of IndyMac Home Equity
Mortgage Loan Asset-Backed Certificates, Series SPMD 2001-C." Funds in the
Capitalized Interest Account (other than investment income) shall be held in
trust for the Certificateholders for the uses and purposes in this Agreement
and shall not be a part of any
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REMIC created under this Agreement. Any investment income earned from
Permitted Investments made with funds in the Capitalized Interest Account will
be for the account of the Seller.
Capitalized Interest Requirement: zero.
Certificate: Any one of the Certificates executed by the Trustee in
substantially the forms attached as exhibits.
Certificate Account: The separate Eligible Account or Accounts
created and maintained by the Master Servicer pursuant to Section 3.06(c) with
a depository institution in the name of the Master Servicer for the benefit of
the Trustee on behalf of Certificateholders and designated "IndyMac Bank,
F.S.B., in trust for the registered holders of Home Equity Mortgage Loan
Asset-Backed Certificates, Series SPMD 2001-C."
Certificate Balance: For any Certificate (other than a Class A-IO or
a Class X Certificate) at any date, the maximum dollar amount of principal to
which the Holder of the Certificate is then entitled, such amount being equal
to the Certificate's Denomination minus all distributions of principal
previously made with respect thereto and in the case of any Subordinated
Certificate, reduced by any Applied Realized Loss Amounts applicable to the
Subordinated Certificate. The Class A-IO and Class X Certificates have no
Certificate Balance.
Certificate Group: Any of the Certificate Group 1 Certificates or the
Certificate Group 2 Certificates, as applicable.
Certificate Owner: Of a Book-Entry Certificate, the Person who is the
beneficial owner of the Book-Entry Certificate.
Certificate Register: The register maintained pursuant to Section
5.02.
Certificateholder or Holder: The person in whose name a Certificate
is registered in the Certificate Register, except that, solely for the purpose
of giving any consent pursuant to this Agreement, any Certificate registered
in the name of the Depositor or any affiliate of the Depositor is not
Outstanding and the Percentage Interest evidenced thereby shall not be taken
into account in determining whether the requisite amount of Percentage
Interests necessary to effect a consent has been obtained unless the Depositor
or its affiliates own 100% of the Percentage Interests evidenced by a Class of
Certificates, in which case the Certificates shall be Outstanding for purposes
of any provision of this Agreement requiring the consent of the Holders of
Certificates of a particular Class as a condition to the taking of any action.
The Trustee and the NIM Insurer are entitled to rely conclusively on a
certification of the Depositor or any affiliate of the Depositor in
determining which Certificates are registered in the name of an affiliate of
the Depositor.
Class: All Certificates bearing the same class designation as in the
Preliminary Statement.
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Class A Principal Distribution Amount: For any Distribution Date, the
greater of
(1) the excess of
(i) the aggregate Class Certificate Balance of the Class A
Certificates before the Distribution Date over
(ii) the lesser of
(A) 64.00% of the aggregate Stated Principal Balance of
all of the Mortgage Loans plus amounts on deposit in the Pre-
Funding Account as of the last day of the related Remittance
Period and
(B) the Stated Principal Balances of all of the Mortgage
Loans as of the last day of the related Remittance Period
plus amounts on deposit in the Pre-Funding Account minus
$2,400,000; and
(2) the greater of
(i) the excess of
(A) the Class Certificate Balance of the Group 1
Certificates before that Distribution Date over
(B) the aggregate Stated Principal Balance of the
Mortgage Loans in Loan Group 1 plus the Group1 PreFunding
Amount as of the last day of the related Remittance Period;
and
(ii) the excess of
(A) the Class Certificate Balance of the Group 2
Certificates before that Distribution Date, over
(B) the aggregate Stated Principal Balance of the
Mortgage Loans in Loan Group 2 plus the Group1 PreFunding
Amount as of the last day of the related Remittance Period.
Notwithstanding the foregoing, for the purposes of distributions under
Section 4.02I(b)(i) the Class A Principal Distribution Amount shall not
exceed the Principal Remittance Amount, and for the purposes of distributions
under Section 4.02I(c)(i) the Class A Principal Distribution Amount shall not
exceed the sum of the Principal Remittance Amount and the Extra Principal
Distribution Amount.
Class B Principal Distribution Amount: For any Distribution Date on
which the Class Certificate Balances of the Class A, Class M-1, and Class M-2
Certificates have been reduced to zero, the Class B Principal Distribution
Amount is the lesser of (x) the Class Certificate Balance of the Class B
Certificates and (y) the Principal Distribution Amount. Otherwise, for any
Distribution Date, the excess of
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(i) the sum of
(A) the aggregate Class Certificate Balance of the Class A
Certificates (after taking into account distribution of the Class A
Principal Distribution Amount on the Distribution Date),
(B) the Class Certificate Balance of the Class M-1
Certificates (after taking into account distribution of the Class M-1
Principal Distribution Amount on the Distribution Date),
(C) the Class Certificate Balance of the Class M-2
Certificates (after taking into account distribution of the Class M-2
Principal Distribution Amount on the Distribution Date), and
(D) the Class Certificate Balance of the Class B
Certificates before the Distribution Date over
(ii) the lesser of
(A) 96.50% of the aggregate Stated Principal Balance of all
of the Mortgage Loans plus amounts in the Pre-Funding Account as of
the last day of the related Remittance Period and
(B) the Stated Principal Balances of all of the Mortgage
Loans as of the last day of the related Remittance Period plus amounts
in the Pre-Funding Account minus $2,400,000.
Class Certificate Balance: For any Class as of any date of
determination, the aggregate of the Certificate Balances of all Certificates
of the Class as of the date.
Class M-1 Principal Distribution Amount: For any Distribution Date on
which the Class Certificate Balances of the Class A Certificates have been
reduced to zero, the Class M-1 Principal Distribution Amount is the lesser of
(x) the Class Certificate Balance of the Class M-1 Certificates and (y) the
Principal Distribution Amount. Otherwise, for any Distribution Date, the
excess of
(i) the sum of
(A) the aggregate Class Certificate Balance of the Class A
Certificates (after taking into account distribution of the Class A
Principal Distribution Amount on the Distribution Date), and
(B) the Class Certificate Balance of the Class M-1
Certificates before the Distribution Date over
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(ii) the lesser of
(A) 78.00% of the aggregate Stated Principal Balance of all
of the Mortgage Loans plus amounts in the Pre-Funding Account as of
the last day of the related Remittance Period and
(B) the Stated Principal Balances of all of the Mortgage
Loans as of the last day of the related Remittance Period plus amounts
in the Pre-Funding Account minus $2,400,000.
Class M-2 Principal Distribution Amount: For any Distribution Date on
which the Class Certificate Balances of the Class A and Class M-1 Certificates
have been reduced to zero, the Class M-2 Principal Distribution Amount is the
lesser of (x) the Class Certificate Balance of the Class M-2 Certificates and
(y) the Principal Distribution Amount. Otherwise, for any Distribution Date,
excess of
(i) the sum of
(A) the aggregate Class Certificate Balance of the Class A
Certificates (after taking into account distribution of the Class A
Principal Distribution Amount on the Distribution Date),
(B) the Class Certificate Balance of the Class M-1
Certificates (after taking into account distribution of the Class M-1
Principal Distribution Amount on the Distribution Date), and
(C) the Class Certificate Balance of the Class M-2
Certificates before the Distribution Date over
(ii) the lesser of
(A) 88.50% of the aggregate Stated Principal Balance of all
of the Mortgage Loans plus amounts in the Pre-Funding Account as of
the last day of the related Remittance Period and
(B) the Stated Principal Balances of all of the Mortgage
Loans as of the last day of the related Remittance Period plus amounts
in the Pre-Funding Account minus $2,400,000.
Class AR Certificates: A certificate representing the beneficial
ownership of the SAR Interest, the SBR Interest, IR Interest, and the MR
Interest.
Class X Distributable Amount: On any Distribution Date, the amount of
interest that has accrued on the Class X1 and Class OC Regular Interests but
that has not been distributed on the Class X Certificates on prior
Distribution Dates.
Closing Date: November 6, 2001.
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Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
Collateral Value: For any Mortgage Loan, the Collateral Value of the
related Mortgaged Property shall be, other than for Mortgage Loans the
proceeds of which were used for a Refinance Loan, the lesser of (i) the
appraised value determined in an appraisal obtained by the originator at
origination of the Mortgage Loan and (ii) the sales price for the Mortgaged
Property. In the case of a Refinance Loan, the Collateral Value of the related
Mortgaged Property is its appraised value determined in an appraisal obtained
at the time of refinancing.
Collection Account: As defined in Section 3.06(c).
Combined Loan-to-Value Ratio: For any Mortgage Loan at any time, the
ratio of
(i) the sum of (a) the original principal balance of the Mortgage
Loan and (b) the outstanding principal balance at the date of origination of
the Mortgage Loan of any senior mortgage loan, or in the case of any
open-ended senior mortgage loan, the maximum available line of credit with
respect to the Mortgage Loan at origination, regardless of any lesser amount
actually outstanding at the date of origination of the Mortgage Loan, to
(ii) the Collateral Value of the Mortgage Loan.
Compensating Interest: For any Distribution Date, the lesser of (i)
any Prepayment Interest Shortfalls during the applicable Remittance Period and
(ii) 0.25% multiplied by one-twelfth multiplied by the aggregate Stated
Principal Balance of the Mortgage Loans as of the first day of the prior
month.
Cooperative Corporation: The entity that holds title (fee or an
acceptable leasehold estate) to the real property and improvements
constituting the Cooperative Property and that governs the Cooperative
Property, which Cooperative Corporation must qualify as a Cooperative Housing
Corporation under Section 216 of the Code.
Coop Shares: Shares issued by a Cooperative Corporation.
Cooperative Loan: Any Mortgage Loan secured by Coop Shares and a
Proprietary Lease.
Cooperative Property: The real property and improvements owned by the
Cooperative Corporation, including the allocation of individual dwelling units
to the holders of the Coop Shares of the Cooperative Corporation.
Cooperative Unit: A single family dwelling located in a Cooperative
Property.
Corporate Trust Office: The designated office of the Trustee in the
State of California at which at any particular time its corporate trust
business with respect to this Agreement is administered, which office at the
date of the execution of this Agreement is located at 0000 Xxxx Xx. Xxxxxx
Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000, Attn: Mortgage Administration-IN01C3
(IndyMac ABS, Inc., Home Equity Mortgage Loan Asset-Backed Trust, Series SPMD
2001-C),
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facsimile no. (000) 000-0000 and which is the address to which notices to and
correspondence with the Trustee should be directed.
Corresponding Class: As in the Preliminary Statement, (a) the class
of interests in the Intermediate REMIC created under this Agreement that
correspond to the Class of interests in the Master REMIC are as provided in
the Preliminary Statement, or in the case of the Class IA-IO1 regular interest
and Class IA-IO2 regular interests, as in the Preliminary Statement.
Cut-off Date: For each Initial Mortgage Loan, November 1, 2001; for
each Subsequent Mortgage Loan, the later of its date of origination and the
first day of the month in which the Subsequent Mortgage Loan is added to the
Trust Fund.
Cut-off Date Pool Principal Balance: For any Cut-off Date, the
aggregate Stated Principal Balance of all Mortgage Loans as of that date.
Cut-off Date Principal Balance: As to any Mortgage Loan, its Stated
Principal Balance as of the close of business on the related Cut-off Date.
Debt Service Reduction: For any Mortgage Loan, a reduction by a court
of competent jurisdiction in a proceeding under the Bankruptcy Code in the
Scheduled Payment for the Mortgage Loan that became final and non-appealable,
except a reduction resulting from a Deficient Valuation or that results in a
permanent forgiveness of principal.
Debt Service Reduction Mortgage Loan: Any Mortgage Loan that became
the subject of a Debt Service Reduction.
Defective Mortgage Loan: Any Mortgage Loan that is required to be
repurchased pursuant to Section 2.02 or 2.03.
Deficient Valuation: For any Mortgage Loan, a valuation by a court of
competent jurisdiction of the Mortgaged Property in an amount less than the
then outstanding indebtedness under the Mortgage Loan, or any reduction in the
amount of principal to be paid in connection with any Scheduled Payment that
results in a permanent forgiveness of principal, which valuation or reduction
results from an order of the court that is final and non-appealable in a
proceeding under the Bankruptcy Code.
Definitive Certificates: Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 5.02(e).
Delay Delivery Mortgage Loans: (i) The Initial Mortgage Loans
identified on the Mortgage Loan Schedule for which all or a portion of a
related Mortgage File is not delivered to the Trustee by the Closing Date, and
(ii) all Subsequent Mortgage Loans. The Depositor shall deliver the Mortgage
Files to the Trustee:
(A) for at least 70% of the Initial Mortgage Loans, not later than
the Closing Date,
(B) for the remaining 30% of the Initial Mortgage Loans, not later
than five Business Days after the Closing Date,
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(C) for at least 90% of the Subsequent Mortgage Loans conveyed on a
Subsequent Transfer Date, not later than twenty days after the Subsequent
Transfer Date, and
(D) for the remaining 10% of the Subsequent Mortgage Loans conveyed
on the related Subsequent Transfer Date, not later than thirty days after the
relevant Subsequent Transfer Date. To the extent that the Seller is in
possession of any Mortgage Files for any Delay Delivery Loan, until delivery
of the Mortgage File to the Trustee as provided in Section 2.01, the Seller
shall hold the files as Master Servicer, as agent and in trust for the
Trustee.
Deleted Mortgage Loan: As defined in Section 2.03(c).
Denomination: For each Certificate, the amount on the face of the
Certificate as the "Initial Certificate Balance of this Certificate" or the
Percentage Interest appearing on the face of the Certificate.
Depositor: IndyMac ABS, Inc., a Delaware corporation, or its
successor in interest.
Depository: The initial Depository shall be The Depository Trust
Company, the nominee of which is CEDE & Co., as the registered Holder of the
Book-Entry Certificates. The Depository shall at all times be a "clearing
corporation" as defined in Section 8-102(a)(5) of the Uniform Commercial Code
of the State of New York.
Depository Participant: A broker, dealer, bank, or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: As to any Distribution Date, the 18th day of each
month or if that day is not a Business Day the next Business Day, except that
if the next Business Day is less than two Business Days before the related
Distribution Date, then the Determination Date shall be the Business Day
preceding the 18th day of the month.
Distribution Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.06(g) in the name of the
Trustee for the benefit of the Certificateholders and designated "Bankers
Trust Company of California, N.A. in trust for registered holders of IndyMac
Home Equity Mortgage Loan Asset-Backed Certificates, Series SPMD 2001-C."
Funds in the Distribution Account shall be held in trust for the
Certificateholders for the uses and purposes set forth in this Agreement.
Distribution Account Deposit Date: As to any Distribution Date, 12:30
P.M. Pacific time on the Business Day preceding the Distribution Date.
Distribution Date: The 25th day of each calendar month after the
initial issuance of the Certificates, or if that day is not a Business Day,
the next Business Day, commencing in December 2001.
Due Date: For any Mortgage Loan, the first day of the month in which
the related Scheduled Payment is due.
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Eligible Account: Any of
(i) an account maintained with a federal or state chartered depository
institution or trust company the short-term unsecured debt obligations of
which (or, in the case of a depository institution or trust company that is
the principal subsidiary of a holding company, the debt obligations of the
holding company, but only if Xxxxx'x is not a Rating Agency) have the highest
short-term ratings of each Rating Agency at the time any amounts are held on
deposit therein, or
(ii) an account in a depository institution or trust company that is
insured by the FDIC or the SAIF (to the limits established by the FDIC or the
SAIF) and the uninsured deposits in which accounts are otherwise secured such
that, as evidenced by an Opinion of Counsel delivered to the Trustee and to
each Rating Agency, the Certificateholders have a claim on the funds in the
account or a perfected first priority security interest against any collateral
(which shall be limited to Permitted Investments) securing the funds in the
account that is superior to claims of any other depositors or creditors of the
depository institution or trust company in which the account is maintained, or
(iii) a trust account or accounts maintained with the trust
department of a federal or state chartered depository institution or trust
company, acting in its fiduciary capacity, or
(iv) any other account acceptable to each Rating Agency without
reduction or withdrawal of their then current ratings of the Certificates or
the NIM Insurer-guaranteed notes as evidenced by a letter from each Rating
Agency to the Trustee and the NIM Insurer.
Eligible Accounts may bear interest, and may include, if otherwise qualified
under this definition, accounts maintained with the Trustee.
Eligible Repurchase Month: As defined in Section 3.12(b).
ERISA: The Employee Retirement Income Security Act of 1974.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements of Prohibited
Transaction Exemption 2000-58, 65 Fed. Reg. 67765 (2000) (or any successor
thereto), or any substantially similar administrative exemption granted by the
U.S. Department of Labor.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
Escrow Account: The Eligible Account or Accounts established and
maintained pursuant to Section 3.07(a).
Event of Default: As defined in Section 7.01.
Excess Proceeds: For any Liquidated Mortgage Loan, the excess of
(a) all Liquidation Proceeds from the Mortgage Loan received in the
calendar month in which the Mortgage Loan became a Liquidated Mortgage Loan,
net of any amounts
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previously reimbursed to the Master Servicer as Nonrecoverable Advances with
respect to the Mortgage Loan pursuant to Section 3.09(a)(ii), over
(b) the sum of (i) the unpaid principal balance of the Liquidated
Mortgage Loan as of the Due Date in the month in which the Mortgage Loan
became a Liquidated Mortgage Loan plus (ii) accrued interest at the Mortgage
Rate from the Due Date for which interest was last paid or advanced (and not
reimbursed) to Certificateholders up to the Due Date applicable to the
Distribution Date following the calendar month during which the liquidation
occurred.
Excess Reserve Fund Account: The separate Eligible Account created
and maintained by the Trustee pursuant to Section 3.06(e) in the name of the
Trustee for the benefit of the Certificateholders and designated "Bankers
Trust Company of California, N.A. in trust for registered holders of IndyMac
Home Equity Mortgage Loan Asset-Backed Trust, Series SPMD 2001-C." Funds in
the Excess Reserve Fund Account shall be held in trust for the
Certificateholders for the uses and purposes set forth in this Agreement. The
Excess Reserve Fund Account will not be an asset of any REMIC.
Excess Subordinated Amount: For any Distribution Date, the excess of
(a) the Subordinated Amount on the Distribution Date over (b) the Specified
Subordinated Amount for the Distribution Date.
Expense Fees: As to each Mortgage Loan, the sum of the related Master
Servicing Fee, Servicing Fee, Trustee Fee, and any lender-paid primary
mortgage insurance premium.
Expense Fee Rate: As to each Mortgage Loan, the sum of the related
Master Servicing Fee Rate, Servicing Fee Rate, Trustee Fee Rate, and the rate
at which lender-paid primary mortgage insurance premiums are calculated.
Extra Principal Distribution Amount: As of any Distribution Date, the
lesser of (x) the Total Monthly Excess Spread for the Distribution Date and
(y) the Subordination Deficiency for the Distribution Date.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of
the Emergency Home Finance Act of 1970, as amended, or any successor thereto.
Final Scheduled Payment Date: The Final Scheduled Payment Date for
each Class of Certificates is:
Final Scheduled
Payment Date
------------------------
Class AF-A Certificates....................... December 25, 2032
Class AF-B1 Certificates...................... October 25, 2016
Class AF-B2 Certificates...................... October 25, 2025
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Final Scheduled
Payment Date
------------------------
Class AF-B3 Certificates...................... December 25, 2032
Class AF-B4 Certificates...................... October 25, 2016
Class A-IO Certificates....................... December 25, 2032
Class M-1 Certificates........................ December 25, 2032
Class M-2 Certificates........................ December 25, 2032
Class B Certificates.......................... December 25, 2032
Class AV-A Certificates....................... December 25, 2032
Class AV-B Certificates....................... December 25, 2032
Class AR Certificates......................... January 25, 2032
FIRREA: The Financial Institutions Reform, Recovery and Enforcement
Act of 1989.
Fitch: Fitch, Inc., or any successor thereto. If Fitch is designated
as a Rating Agency in the Preliminary Statement, for purposes of Section
10.05(b) the address for notices to Fitch shall be Fitch, Inc., Xxx Xxxxx
Xxxxxx Xxxxx, Xxx Xxxx, XX 00000, Attention: MBS Monitoring - IndyMac SPMD
2001-C, or any other address Fitch furnishes to the Depositor and the Master
Servicer.
FNMA: The Federal National Mortgage Association, a federally
chartered and privately owned corporation organized and existing under the
Federal National Mortgage Association Charter Act, or any successor thereto.
Group 1 Accrual Directed Class: As defined in the Preliminary
Statement.
Group 1A Certificates: As specified in the Preliminary Statement.
Group 1 Certificates: As specified in the Preliminary Statement.
Group 1 IO Component: One of the components of the Class A-IO
Certificate, the notional balance of which on a Distribution Date is equal to
the lesser of the aggregate Stated Principal Balance of the Mortgage Loans in
Loan Group 1 as of the last day of the related Remittance Period and the
amounts described below:
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Distribution Notional Distribution Notional Distribution Notional
Dates Amount Dates Amount Dates Amount
----------------- -------------- ---------------- ----------- --------------- -----------
1............... 14,600,000 12.............. 9,600,000 23.............. 6,600,000
2............... 14,600,000 13.............. 9,600,000 24.............. 5,600,000
3............... 13,300,000 14.............. 9,600,000 25.............. 5,600,000
4............... 13,300,000 15.............. 8,500,000 26.............. 5,600,000
5............... 13,300,000 16.............. 8,500,000 27.............. 4,900,000
6............... 12,300,000 17.............. 8,500,000 28.............. 4,900,000
7............... 12,300,000 18.............. 7,700,000 29.............. 4,900,000
8............... 12,300,000 19.............. 7,700,000 30.............. 4,000,000
9............... 10,800,000 20.............. 7,700,000 31.............. 4,000,000
10.............. 10,800,000 21.............. 6,600,000 32.............. 4,000,000
11.............. 10,800,000 22.............. 6,600,000
Group 1B Certificates: As specified in the Preliminary Statement.
Group 1 Intermediate REMIC Accretion Directed Classes: As specified
in the Preliminary Statement.
Group 1 Overcollateralized Amount: As of any Distribution Date, the
excess of the aggregate Stated Principal Balance of the Group 1 Mortgage Loans
as of the last day of the related Due Period (or, in the case of the first
Distribution Date, the Cut-off Date) plus the Group 1 Prefunding Amount over
the aggregate of the Class Certificate Balances of (a) the Group 1
Certificates, (b) 1/2 of the balance of the Class P Certificate, and (c) the
Group 1 Subordinated Amount on the Subordinated Certificates (as determined
under the principal payment and loan allocations described in the Preliminary
Statement).
Group 1 PreFunding Amount: $38,442,570.99.
Group 1 Principal Distribution Amount: For any Distribution Date is
the lesser of:
(1)
(A) the Class A Principal Distribution Amount less
(B) the excess of
(x) the Class Certificate Balance of the Group 2
Certificates before that Distribution Date, over
(y) the aggregate Stated Principal Balance of the
Mortgage Loans in Loan Group 2 as of the last day of the
related Remittance Period; and
(2) the greater of:
(A) the product of
(x) the Class A Principal Distribution Amount and
(y) the fraction whose numerator is
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(i) the aggregate Stated Principal Balance of
the Mortgage Loans in Loan Group 1 as of the last
day of the related Remittance Period and whose
denominator is
(ii) the aggregate Stated Principal Balance of
all the Mortgage Loans as of the last day of the
related Remittance Period and
(B) the excess of
(x) the Class Certificate Balance of the Group 1
Certificates before that Distribution Date, over
(y) the aggregate Stated Principal Balance of the
Mortgage Loans in Loan Group 1 as of the last day of the
related Remittance Period.
Group 1 Subordinate Amount: For any Distribution Date will be the
aggregate of the Stated Principal Balances of the Group 1 Mortgage Loans as of
the last day of the related Collection Period less the Class Principal Balance
of the Group 1 Certificates.
Group 1 WAC Cap: For each Class of Certificates in Loan Group 1 as of
any Distribution Date the weighted average of the Mortgage Rates on the
Mortgage Loans in Loan Group 1 minus the sum of the weighted average Expense
Fee Rate and, for the first 32 Distribution Dates only, the product of
(a) 6.50% and
(b) the applicable Group 1 IO Component notional
balance divided by the aggregate Stated Principal Balances of
the Mortgage Loans in Loan Group 1 as of the opening of
business on the first day of the related Remittance Period.
Group 2 Accrual Directed Class: As defined in the Preliminary
Statement.
Group 2 Certificates: As specified in the Preliminary Statement.
Group 2A Certificates: As specified in the Preliminary Statement.
Group 2B Certificates: As specified in the Preliminary Statement.
Group 2 Intermediate REMIC Accretion Directed Classes: As defined in
the Preliminary Statement.
Group 2 Overcollateralized Amount: As of any Distribution Date, the
excess of the aggregate Stated Principal Balance of the Group 2 Mortgage Loans
as of the last day of the related Due Period (or, in the case of the first
Distribution Date, the Cut-off Date) plus the Group 1 Prefunding Amount
(excluding investment earnings thereon) over the aggregate of the Class
Certificate Balances of (a) the Group 2 Certificates, (b) 1/2 of the balance
of the Class P Certificate, and (c) the Group 2 Subordinated Amount on the
Subordinated Certificates.
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Group 2 IO Component: One of the components of the Class A-IO
Certificate, the notional balance of which on a Distribution Date is equal to
the lesser of the aggregate Stated Principal Balance of the mortgage loans in
Loan Group 2 as of the last day of the related Remittance Period and the
amounts described below:
Distribution Notional Distribution Notional Distribution Notional
Dates Amount Dates Amount Dates Amount
------------------ ------------ --------------- ---------- ---------------- ---------
1............... 19,500,000 12............. 12,900,000 23.............. 8,900,000
2............... 19,500,000 13............. 12,900,000 24.............. 7,500,000
3............... 17,900,000 14............. 12,900,000 25.............. 7,500,000
4............... 17,900,000 15............. 11,400,000 26.............. 7,500,000
5............... 17,900,000 16............. 11,400,000 27.............. 6,600,000
6............... 16,500,000 17............. 11,400,000 28.............. 6,600,000
7............... 16,500,000 18............. 10,200,000 29.............. 6,600,000
8............... 16,500,000 19............. 10,200,000 30.............. 5,900,000
9............... 14,500,000 20............. 10,200,000 31.............. 5,900,000
10.............. 14,500,000 21............. 8,900,000 32.............. 5,900,000
11.............. 14,500,000 22............. 8,900,000
Group 2 Maximum Cap: For each Class of Certificates in Loan Group 2
as of any Distribution Date, the product of:
(i) a fraction whose numerator is 30 and whose denominator is
the actual number of days in the related accrual period and
(ii) the weighted average of the maximum lifetime Mortgage
Rates on the Mortgage Loans in Loan Group 2 minus the sum of the
weighted average Expense Fee Rate and, for the first 32 Distribution
Dates only the product of:
(a) 6.50%; and
(b) the applicable Group 2 IO Component notional balance
divided by the aggregate Stated Principal Balances of the
Mortgage Loans in Loan Group 2 as of the opening of business on
the first day of the related Remittance Period.
Group 2 PreFunding Amount: $61,191,051.34.
Group 2 Principal Distribution Amount: For any Distribution Date is
the lesser of:
(1)
(A) the Class A Principal Distribution Amount less
(B) the excess of
(x) the Class Certificate Balance of the Group 1
Certificates before that Distribution Date, over
(y) the aggregate Stated Principal Balance of the
Mortgage Loans in Loan Group 1 as of the last day of the
related Remittance Period; and
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(2) the greater of:
(A) the product of
(x) the Class A Principal Distribution Amount and
(y) the fraction whose numerator is
(i) the aggregate Stated Principal Balance of the
Mortgage Loans in Loan Group 2 as of the last day of the
related Remittance Period and whose denominator is
(ii) the aggregated Stated Principal Balance of all
the Mortgage Loans as of the last day of the related
Remittance Period and
(B) the excess of
(x) the Class Certificate Balance of the Group 2
Certificates before that Distribution Date, over
(y) the aggregate Stated Principal Balance of the
Mortgage Loans in Loan Group 2 as of the last day of the
related Remittance Period.
Group 2 Subordinate Amount: For any Distribution Date will be the
aggregate of the Stated Principal Balances of the Group 2 Mortgage Loans as of
the last day of the related Collection Period less the Class Principal Balance
of the Group 2 Certificates.
Group 2 WAC Cap: For each Class of Certificates in Loan Group 2 as of
any Distribution Date is the lesser of:
(x) the product of:
(i) a fraction whose numerator is 30 and whose denominator is
the actual number of days in the related accrual period and
(ii) the weighted average of the maximum lifetime Mortgage
Rates on the Mortgage Loans in Loan Group 2 minus the sum of the
weighted average Expense Fee Rate and, for the first 32 Distribution
Dates only the product of:
(a) 6.50%; and
(b) the applicable Group 2 IO Component notional balance
divided by the aggregate Stated Principal Balances of the
Mortgage Loans in Loan Group 2 as of the opening of business on
the first day of the related Remittance Period.
(y) the product of:
(i) a fraction whose numerator is 30 and whose denominator is
the actual number of days in the related accrual period and
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(ii) the weighted average of the Mortgage Rates on the Mortgage
Loans in Loan Group 2 minus the sum of the weighted average Expense
Fee Rate and, for the first 32 Distribution Dates only the product of:
(a) 6.50%; and
(b) the applicable Group 2 IO Component notional balance
divided by the aggregate Stated Principal Balances of the
Mortgage Loans in Loan Group 2 as of the opening of business
on the first day of the related Remittance Period.
Index: As to each Mortgage Loan in Loan Group 2, the index from time
to time in effect for the adjustment of the Mortgage Rate set forth as such on
the related Mortgage Note.
Indirect Participant: A broker, dealer, bank, or other financial
institution or other Person that clears through or maintains a custodial
relationship with a Depository Participant.
Initial Mortgage Loans: Such of the mortgage loans transferred and
assigned to the Trustee pursuant to the provisions hereof, as from time to
time are held as a part of the Trust Fund (including any REO Property), the
mortgage loans so held being identified on the Mortgage Loan Schedule as of
the Closing Date, notwithstanding foreclosure or other acquisition of title of
the related Mortgaged Property.
Insurance Policy: For any Mortgage Loan included in the Trust Fund,
any insurance policy, including all its riders and endorsements in effect,
including any replacement policy or policies for any Insurance Policies.
Insurance Proceeds: Proceeds paid by an insurer pursuant to any
Insurance Policy, in each case other than any amount included in such
Insurance Proceeds in respect of Insured Expenses or released to the
Mortgagor.
Insured Expenses: Expenses covered by an Insurance Policy or any
other insurance policy with respect to the Mortgage Loans.
Interest Accrual Period: For each Class Fixed Rate Certificates and
the corresponding Class of Subsidiary REMIC A, Subsidiary REMIC B, and
Intermediate REMIC regular interests ("Lower Tier Interest") and any
Distribution Date, the calendar month before the month of the Distribution
Date. For purposes of computing accrual of interest on each Class Fixed Rate
Certificates and the corresponding Class of Class of Lower Tier Interest, each
month is assumed to have 30 days and each year is assumed to have 360 days.
For each Class of Adjustable Rate Certificates and the corresponding Class of
Lower Tier Interest and any Distribution Date, the period from the
Distribution Date in the month preceding the month in which the Distribution
Date occurs to the Distribution Date (or in the case of the first Distribution
Date, the period from the Closing Date to the first Distribution Date). For
purposes of computing interest accruals on each Class of Adjustable Rate
Certificates and the corresponding Class of Lower
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Tier Interest, each Interest Accrual Period has the actual number of days in
the month and each year is assumed to have 360 days.
Intermediate REMIC: As defined in the Preliminary Statement.
Intermediate REMIC Accretion Directed Classes: The Group 1
Intermediate REMIC Accretion Directed Classes, and Group 2 Intermediate REMIC
Accretion Directed Classes.
Intermediate REMIC Accrual Directed Classes: The Group 1 Intermediate
REMIC Accrual Directed Classes, and Group 2 Intermediate REMIC Accrual
Directed Classes.
IR Interest: As defined in the Preliminary Statement.
Lender PMI Loans: Mortgage Loans with respect to which the lender
rather than the borrower acquired the primary mortgage guaranty insurance and
charged the related borrower an interest premium.
LIBOR: For any Interest Accrual Period for the LIBOR Certificates,
the rate determined by the Trustee on the related LIBOR Determination Date on
the basis of the offered rate for one-month U.S. dollar deposits that appears
on Telerate Page 3750 as of 11:00 A.M. (London time) on that date. If the rate
does not appear on Telerate Page 3750, the rate for that date will be
determined on the basis of the rates at which one-month U.S. dollar deposits
are offered by the Reference Banks at approximately 11:00 A.M. (London time)
on that date to prime banks in the London interbank market. In that case, the
Trustee will request the principal London office of each of the Reference
Banks to provide a quotation of its rate. If at least two quotations are so
provided, the rate for that date will be the arithmetic mean of the quotations
(rounded upwards if necessary to the nearest whole multiple of 1/16%). If
fewer than two quotations are provided as requested, the rate for that date
will be the arithmetic mean of the rates quoted by major banks in New York
City, selected by the Master Servicer, at approximately 11:00 A.M. (New York
City time) on that date for one-month U.S. dollar loan to leading European
banks.
LIBOR Certificates: As specified in the Preliminary Statement.
LIBOR Determination Date: For any Interest Accrual Period for the
LIBOR Certificates, the second London Business Day preceding the commencement
of the Interest Accrual Period.
Liquidated Mortgage Loan: For any Distribution Date, a defaulted
Mortgage Loan (including any REO Property) that was liquidated in the calendar
month preceding the month of the Distribution Date and as to which the Master
Servicer has certified (in accordance with this Agreement) that it has
received all amounts it expects to receive in connection with the liquidation
of the Mortgage Loan, including the final disposition of an REO Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds
regardless of when received, received in connection with the partial or
complete liquidation of defaulted Mortgage
I-19
Loans, whether through trustee's sale, foreclosure sale, or otherwise or
amounts received in connection with any condemnation or partial release of a
Mortgaged Property, and any other proceeds received in connection with an REO
Property, less the sum of related unreimbursed Servicing Fees, Servicing
Advances, and Advances.
Loan Group: Any of Loan Group 1 or Loan Group 2, as applicable.
Loan Group 1: All Mortgage Loans that have Mortgage Rates that are
fixed.
Loan Group 2: All Mortgage Loans that have Mortgage Rates that are
adjustable.
Loan Subgroup 1A: All Mortgage Loans in Loan Group 1 that are not in
Loan Subgroup 1B.
Loan Subgroup 1B: All Mortgage Loans in Loan Group 1 that are
identified in the Mortgage Loan Schedule (or an addenda to the Mortgage Loan
Schedule) as being included in that subgroup.
Loan Subgroup 2A: All Mortgage Loans in Loan Group 2 that are not in
Loan Subgroup 2B.
Loan Subgroup 2B: All Mortgage Loans in Loan Group 2 that identified
in the Mortgage Loans Schedule (or an addenda to the Mortgage Loan Schedule)
as being included in that subgroup.
Loan-to-Value Ratio: For any Mortgage Loan and as of any date of
determination, is the fraction whose numerator is the original principal
balance of the related Mortgage Loan at that date of determination and whose
denominator is the Collateral Value of the related Mortgaged Property.
Lockout Percentage: The indicated percentage for the indicated
Distribution Dates:
----------------------------------------------------- -------------------
Distribution Dates Percentage
----------------------------------------------------- -------------------
December 2001 through November 2004 ................ 0%
----------------------------------------------------- -------------------
December 2004 through November 2006 ................ 45%
----------------------------------------------------- -------------------
December 2006 through November 2007 ................ 80%
----------------------------------------------------- -------------------
December 2007 through November 2008 ............... 100%
----------------------------------------------------- -------------------
December 2008 and thereafter ...................... 300%
----------------------------------------------------- -------------------
London Business Day: Any day on which dealings in deposits of United
States dollars are transacted in the London interbank market.
Lost Mortgage Note: Any Mortgage Note the original of which was
permanently lost or destroyed and has not been replaced.
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Maintenance: For any Cooperative Unit, the rent paid by the Mortgagor
to the Cooperative Corporation pursuant to the Proprietary Lease.
Majority in Interest: As to any Class of Regular Certificates, the
Holders of Certificates of the Class evidencing, in the aggregate, at least
51% of the Percentage Interests evidenced by all Certificates of the Class.
Margin: As to each Mortgage Loan in Loan Group 2, the percentage
amount on the related Mortgage Note added to the Index in calculating its
Mortgage Rate.
Master REMIC: As defined in the Preliminary Statement.
Master Servicer: IndyMac Bank, F.S.B., a federal savings bank, and
its successors and assigns, in its capacity as master servicer under this
Agreement.
Master Servicer Advance Date: As to any Distribution Date, 12:30 P.M.
Pacific time on the Business Day preceding the Distribution Date.
Master Servicing Fee: As to each Mortgage Loan and any Distribution
Date, one month's interest at the related Master Servicing Fee Rate on the
Stated Principal Balance of the Mortgage Loan or, in the event of any payment
of interest that accompanies a Principal Prepayment in Full made by the
Mortgagor, interest at the Master Servicing Fee Rate on the Stated Principal
Balance of the Mortgage Loan for the period covered by the payment of
interest, subject to reduction as provided in Section 3.15.
Master Servicing Fee Rate: For each Mortgage Loan, zero.
Maximum Rate: As to any Mortgage Loans in Loan Group 2, the maximum
rate in the related Mortgage Note at which interest can accrue on the Mortgage
Loan.
Modified Mortgage Loan: Any Mortgage Loan that the Master Servicer
has modified pursuant to Section 3.12(c).
Monthly Statement: The statement prepared by the Trustee pursuant to
Section 4.03.
Moody's: If Xxxxx'x is designated as a Rating Agency in the
Preliminary Statement, for purposes of Section 10.05(b) the address for
notices to Moody's shall be Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Residential Loan Monitoring Group, or any
other address that Moody's furnishes to the Depositor and the Master Servicer.
Mortgage: The mortgage, deed of trust, or other instrument creating a
first or second lien on an estate in fee simple or leasehold interest in real
property securing a Mortgage Note.
Mortgage File: The mortgage documents listed in Section 2.01
pertaining to a particular Mortgage Loan and any additional documents
delivered to the Trustee to be added to the Mortgage File pursuant to this
Agreement.
I-21
Mortgage Loans: Such of the mortgage loans transferred and assigned
to the Trustee pursuant to either (i) this Agreement or (ii) a Subsequent
Transfer Agreement and this Agreement, as from time to time are held as a part
of the Trust Fund (including any REO Property), the mortgage loans so held
being identified on the Mortgage Loan Schedule, notwithstanding foreclosure or
other acquisition of title of the related Mortgaged Property.
Mortgage Loan Schedule: As of any date, the list of Mortgage Loans in
Schedule I included in the Trust Fund on that date, separately identifying the
Initial Mortgage Loans and the Subsequent Mortgage Loans. The Mortgage Loan
Schedule shall be prepared by the Seller and shall contain the following
information with respect to each Mortgage Loan:
(i) the loan number;
(ii) the Mortgagor's name and the street address of the
Mortgaged Property, including the zip code;
(iii) the maturity date;
(iv) the original principal balance;
(v) the Cut-off Date Principal Balance;
(vi) the first payment date of the Mortgage Loan;
(vii) the Scheduled Payment in effect as of the related Cut-off
Date;
(viii) the Loan-to-Value Ratio or Combined Loan-to-Value (as
applicable) at origination;
(ix) a code indicating whether the residential dwelling at the
time of origination was represented to be owner-occupied;
(x) a code indicating whether the residential dwelling is
either (a) a detached single family dwelling, (b) a
dwelling in a PUD, (c) a condominium unit, (d) a two- to
four-unit residential property, or (e) a Cooperative Unit;
(xi) the Mortgage Rate;
(xii) the purpose for the Mortgage Loan;
(xiii) the type of documentation program pursuant to which the
Mortgage Loan was originated;
(xiv) with respect to the Mortgage Loans in Loan Group 2:
(a) the Maximum Rate;
(b) the Periodic Rate Cap;
(c) the Adjustment Date; and
(d) the Margin;
(xv) a code indicating whether the Mortgage Loan is a
Performance Loan;
(xvi) a code indicating whether the Mortgage Loan is a
borrower-paid mortgage insurance loan;
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(xvii) the Servicing Fee Rate;
(xviii) a code indicating whether the Mortgage Loan is a Lender
PMI Loan;
(xix) the coverage amount of any mortgage insurance;
(xx) with respect to the Lender PMI Loans, the Lender PMI fee
premium;
(xxi) a code indicating whether the Mortgage Loan is a Loan
Subgroup 1B or Loan Subgroup 2B Mortgage Loan; and
(xxii) a code indicating whether the Mortgage Loan is a Delay
Delivery Mortgage Loan.
The schedule shall also state the total of the amounts described under (v)
above for all of the Mortgage Loans.
Mortgage Note: The original executed note or other evidence of the
indebtedness of a Mortgagor under a Mortgage Loan.
Mortgage Rate: The annual rate of interest borne by a Mortgage Note
from time to time.
Mortgaged Property: The underlying property securing a Mortgage Loan,
which, with respect to a Cooperative Loan, is the related Coop Shares and
Proprietary Lease.
Mortgagor: The obligors on a Mortgage Note.
MR Interest: As defined in the Preliminary Statement.
Net Prepayment Interest Shortfall: For any Distribution Date, the
excess of the sum of the Prepayment Interest Shortfalls over the sum of the
Compensating Interest payments made on the Distribution Date.
Net WAC Cap CarryForward Amount: For any Distribution Date, the sum of
(A) if on the Distribution Date the Pass-Through Rate for any Class
of Fixed Rate Certificates is based on the Group 1 WAC Cap, the excess of
(i) the amount of interest that Class of Group 1 Certificates
would otherwise be entitled to receive on the Distribution Date had
its Pass-Through Rate not been subject to the Group 1WAC Cap over
(ii) the amount of interest payable on that Class of Group 1
Certificates at the Group 1 WAC Cap for the Distribution Date;
(B) the Net WAC Cap CarryForward Amount for that Class of Group 1
Certificates for all previous Distribution Dates not previously paid, together
with interest thereon at the then applicable Pass-Through Rate on that Class of
Group 1 Certificates, without giving effect to the Group 1 WAC Cap;
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(C) if on the Distribution Date the Pass-Through Rate for any
Class of Group 2 Certificates is based on the Group 2 WAC Cap, the excess of
(i) the amount of interest that Class of Group 2 Certificates
would otherwise be entitled to receive on the Distribution Date had
its Pass-Through Rate been calculated as the sum of LIBOR and the
applicable Pass-Through Margin on that Class of Group 2 Certificates
for the Distribution Date, up to the Group 2 Maximum Cap over
(ii) the amount of interest payable on that Class of Group 2
Certificates at the Group 2 WAC Cap for the Distribution Date;
(D) the Net WAC Cap CarryForward Amount for that Class of Group 2
Certificates for all previous Distribution Dates not previously paid, together
with interest thereon at a rate equal to the sum of LIBOR and the applicable
Pass-Through Margin for that Class of Group 2 Certificates for the Distribution
Date, subject to the Group 2 Maximum Cap;
(E) if on the Distribution Date the Pass-Through Rate for any
Class of Subordinated Certificates is based on the weighted average of the
Group 1 WAC Cap and the Group 2 WAC Cap, the excess of
(i) the amount of interest that Class of Subordinated
Certificates would otherwise be entitled to receive on the
Distribution Date had its Pass-Through Rate been calculated as the
sum of LIBOR and the applicable Pass-Through Margin on that Class of
Subordinated Certificates for the Distribution Date, over
(ii) the amount of interest payable on that Class of
Subordinated Certificates at the weighted average of the Group 1 WAC
Cap and the Group 2 WAC Cap for the Distribution Date; and
(F) the Net WAC Cap CarryForward Amount for that Class of
Subordinated Certificates for all previous Distribution Dates not previously
paid, together with interest thereon at a rate equal to the sum of LIBOR and
the applicable Pass-Through Margin for that Class of Subordinated Certificates
for the Distribution Date.
Net WAC Cap Payment: For any Distribution Date, the lesser of the
amounts otherwise distributable on the Class X Certificates on the
Distribution Date and the sum of any Net WAC Cap CarryForward Amount plus the
excess of the Required Reserve Amount for the Distribution Date over the
amount on deposit in the Excess Reserve Fund Account on the related
Determination Date.
NIM Insurer: Any insurer guarantying at the request of the Seller
certain payments under notes backed principally by the Class X and Class P
Certificates.
Nonrecoverable Advance: Any portion of an Advance previously made or
proposed to be made by the Master Servicer, that, in the good faith judgment
of the Master Servicer, will not
I-24
be ultimately recoverable by the Master Servicer from the related Mortgagor,
related Liquidation Proceeds or otherwise from collections related to the
Mortgage Loan.
Notice of Final Distribution: The notice to be provided pursuant to
Section 9.02 to the effect that final distribution on any of the Certificates
shall be made only on its presentation and surrender.
Notional Amount: As to the Class A-IO Certificates and any
Distribution Date, the sum of the notional balances of the Group 1 IO
Component and the Group 2 IO Component for the Distribution Date.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: A certificate (i) signed by the Chairman of
the Board, the Vice Chairman of the Board, the President, a Managing Director,
a Vice President (however denominated), an Assistant Vice President, the
Treasurer, the Secretary, or one of the Assistant Treasurers or Assistant
Secretaries of the Depositor or the Master Servicer, or (ii) if provided for
in this Agreement, signed by a Servicing Officer, as the case may be, and
delivered to the Depositor and the Trustee as required by this Agreement.
Opinion of Counsel: For the interpretation or application of the
REMIC Provisions, counsel must (i) in fact be independent of the Depositor and
the Master Servicer, (ii) not have any direct financial interest in the
Depositor or the Master Servicer or in any affiliate of either, and (iii) not
be connected with the Depositor or the Master Servicer as an officer,
employee, promoter, underwriter, trustee, partner, director, or person
performing similar functions. Otherwise, Opinion of Counsel is a written
opinion of counsel, who may be counsel for the Depositor or the Master
Servicer, including in-house counsel, reasonably acceptable to the Trustee.
Optional Termination: The termination of the Trust Fund created
hereunder in connection with the purchase of the Mortgage Loans pursuant to
Section 9.01(a).
Optional Termination Date: The Distribution Date on which the assets
of the Trust Fund decline to 10% or less of the Cut-off Date Principal
Balances of the Mortgage Loans.
Original Mortgage Loan: The Mortgage Loan refinanced in connection
with the origination of a Refinance Loan.
OTS: The Office of Thrift Supervision.
Outstanding: For the Certificates as of any date of determination,
all Certificates theretofore executed and authenticated under this Agreement
except:
(i) Certificates theretofore canceled by the Trustee or
delivered to the Trustee for cancellation; and
(ii) Certificates in exchange for which or in lieu of which
other Certificates have been executed and delivered by the Trustee
pursuant to this Agreement.
I-25
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan with a
Stated Principal Balance greater than zero that was not the subject of a
Principal Prepayment in Full before the Due Date and that did not become a
Liquidated Mortgage Loan before the Due Date.
Overcollateralized Amount. An amount equal to the excess of the
aggregate Stated Principal Balance of the Mortgage Loans as of the last day of
the related Due Period plus the remaining Prefunding Amount (excluding
investment earnings thereon) over the aggregate of the Class Certificate
Balances of the Group 1 Certificates, the Group 2 Certificates, the
Subordinated Certificates, and Class P Certificate.
Ownership Interest: As to any Residual Certificate, any ownership
interest in the Certificate including any interest in the Certificate as its
Holder and any other interest therein, whether direct or indirect, legal or
beneficial.
Pass-Through Margin: For the ClassAF-B1 Certificates, 0.27%; for the
Class AV-A Certificates, 0.33%; for the Class AV-B Certificates, 0.36%; for
the Class M-1 Certificates, 0.95%; for the Class M-2 Certificates, 1.45%; and
for the Class B Certificates, 2.35%. Following the Optional Termination Date,
the Pass-Through Margin for the Class AF-B1, Class AV-A, and Class AV-B
Certificates shall be 2 times their initial margin. Following the Optional
Termination Date, the Pass-Through Margin for the Subordinate Certificates
shall be 1.5 times their initial margin.
Pass-Through Rate: For each Class of Certificates and each Lower Tier
Interest, the per annum rate in or calculated in the manner described in the
Preliminary Statement.
Percentage Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class,
the percentage interest being stated on their face or equal to the percentage
obtained by dividing the Denomination of the Certificate by the aggregate of
the Denominations of all Certificates of the same Class.
Performance Loan: Mortgage Loans that provide borrowers the potential
of margin reduction for good payment history. If, at the time of evaluation,
the related borrower has made scheduled payments in full since the origination
of the loan with a maximum of one late payment (which, however, cannot be in
the month of evaluation) the Mortgage Loan is eligible for a reduction
(ranging from 0.50% to 1.00%) in the margin used to calculate the Mortgage
Rate.
Periodic Rate Cap: As to any Mortgage Loan in Loan Group 2 and any
Adjustment Date, the maximum percentage increase or decrease to the related
Mortgage Rate on the Adjustment Date, as specified in the related Mortgage
Note.
Permitted Investments: At any time, any of the following regardless
of whether issued or managed by the Depositor, the Master Servicer, the NIM
Insurer, the Trustee, or any of their Affiliates or for which an Affiliate of
the NIM Insurer or Trustee serves as an Advisor:
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(i) obligations of the United States or any agency thereof backed by
the full faith and credit of the United States;
(ii) general obligations of or obligations guaranteed by any state of
the United States or the District of Columbia receiving the highest long-term
debt rating of each Rating Agency, or any lower rating that will not result in
the downgrading or withdrawal of the ratings then assigned to the Certificates
by the Rating Agencies, as evidenced by a signed writing delivered by each
Rating Agency;
(iii) commercial or finance company paper that is then receiving the
highest commercial or finance company paper rating of each Rating Agency, or
any lower rating that will not result in the downgrading or withdrawal of the
ratings then assigned to the Certificates by the Rating Agencies, as evidenced
by a signed writing delivered by each Rating Agency;
(iv) certificates of deposit, demand or time deposits, or bankers'
acceptances issued by any depository institution or trust company incorporated
under the laws of the United States or of any state thereof and subject to
supervision and examination by federal or state banking authorities, provided
that the commercial paper or long-term unsecured debt obligations of the
depository institution or trust company (or in the case of the principal
depository institution in a holding company system, the commercial paper or
long-term unsecured debt obligations of the holding company, but only if
Xxxxx'x is not a Rating Agency) are then rated one of the two highest
long-term and the highest short-term ratings of each Rating Agency for the
securities, or any lower rating that will not result in the downgrading or
withdrawal of the ratings then assigned to the Certificates by the Rating
Agencies, as evidenced by a signed writing delivered by each Rating Agency;
(v) demand or time deposits or certificates of deposit issued by any
bank or trust company or savings institution to the extent that the deposits
are fully insured by the FDIC;
(vi) guaranteed reinvestment agreements issued by any bank, insurance
company, or other corporation acceptable to the Rating Agencies at the time of
the issuance of the agreements, as evidenced by a signed writing delivered by
each Rating Agency;
(vii) repurchase obligations with respect to any security described
in clauses (i) and (ii) above, in either case entered into with a depository
institution or trust company (acting as principal) described in clause (iv)
above;
(viii) securities (other than stripped bonds, stripped coupons, or
instruments sold at a purchase price in excess of 115% of their face amount)
bearing interest or sold at a discount issued by any corporation incorporated
under the laws of the United States or any state thereof that, at the time of
the investment, have one of the two highest ratings of each Rating Agency
(except if the Rating Agency is Moody's the rating shall be the highest
commercial paper rating of Moody's for the securities), or any lower rating
that will not result in the downgrading or
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withdrawal of the ratings then assigned to the Certificates by the Rating
Agencies, as evidenced by a signed writing delivered by each Rating Agency;
(ix) units of a taxable money-market portfolio having the highest
rating assigned by each Rating Agency (except (i) if Fitch is a Rating Agency
and has not rated the portfolio, the highest rating assigned by Moody's and
(ii) if S&P is a Rating Agency, "AAAm" or "AAAM-G" by S&P) and restricted to
obligations issued or guaranteed by the United States of America or entities
whose obligations are backed by the full faith and credit of the United States
of America and repurchase agreements collateralized by such obligations; and
(x) any other investments bearing interest or sold at a discount
acceptable to each Rating Agency that will not result in the downgrading or
withdrawal of the ratings then assigned to the Certificates by the Rating
Agencies, as evidenced by a signed writing delivered by each Rating Agency.
No Permitted Investment may evidence the right to receive interest only
payments with respect to the obligations underlying the instrument. Any
Permitted Investment shall be relatively risk free and no options or voting
rights shall be exercised with respect to any Permitted Investment.
Permitted Transferee: Any Person other than
(i) the United States, any State or political subdivision thereof, or
any agency or instrumentality of any of the foregoing,
(ii) a foreign government, International Organization, or any agency
or instrumentality of either of the foregoing,
(iii) an organization (except certain farmers' cooperatives described
in section 521 of the Code) that is exempt from tax imposed by Chapter 1 of
the Code (including the tax imposed by section 511 of the Code on unrelated
business taxable income) on any excess inclusions (as defined in section
860E(c)(1) of the Code) with respect to any Residual Certificate,
(iv) rural electric and telephone cooperatives described in section
1381(a)(2)(C) of the Code,
(v) a Person that is not a U.S. Person, and
(vi) any other Person so designated by the Depositor based on an
Opinion of Counsel that the Transfer of an Ownership Interest in a Residual
Certificate to the Person may cause any REMIC created under this Agreement to
fail to qualify as a REMIC at any time that the Certificates are outstanding.
The terms "United States," "State," and "International Organization"
have the meanings in section 7701 of the Code or successor provisions. A
corporation will not be treated as an instrumentality of the United States or
of any State or political subdivision thereof for these purposes if all of its
activities are subject to tax and, with the exception of the FHLMC, a majority
of its board of directors is not selected by such government unit.
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Person: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization, or government, or any agency or political
subdivision thereof.
Physical Certificates: As specified in the Preliminary Statement.
Pool Stated Principal Balance: As to any Distribution Date, the
aggregate of the Stated Principal Balances of the Mortgage Loans on the last
day of the related Remittance Period that were Outstanding Mortgage Loans on
that day.
Pre-Funding Amount: For any date, the amount on deposit in the
Pre-Funding Account as of that date (net of any reinvestment earnings
thereon).
Pre-Funding Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.06 in the name of the Trustee
for the benefit of the Certificateholders and designated "Bankers Trust
Company of California, N.A., in trust for registered holders of IndyMac Home
Equity Mortgage Loan Asset-Backed Certificates, Series SPMD 2001-C" for the
purchase of Subsequent Mortgage Loans. Funds in the Pre-Funding Account shall
be held in trust for the Certificateholders for the uses and purposes stated
in this Agreement and shall not be a part of any REMIC created under this
Agreement.
Pre-Funding Period: The period commencing on the Closing Date and
ending on the earlier to occur of (i) the date on which the amount on deposit
in the Pre-Funding Account (exclusive of any investment earnings) is less than
$100,000 and (ii) January 18, 2002.
Prepayment Charge: As to a Mortgage Loan, any charge paid by a
Mortgagor in connection with certain partial prepayments and all prepayments
in full made within the related Prepayment Charge Period, the Prepayment
Charges with respect to each applicable Mortgage Loan so held by the Trust
being identified in the Prepayment Charge Schedule.
Prepayment Charge Period: As to any Mortgage Loan the period of time
during which a Prepayment Charge may be imposed.
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 Mortgage
Property is located;
(iv) the first date on which a Monthly Payment is or was due
under the related Mortgage Note;
(v) the term of the Prepayment Charge;
(vi) the original principal amount of the related Mortgage
Loan; and
(vii) the Cut-off Date Principal Balance of the related
Mortgage Loan.
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The Prepayment Charge Schedule shall be amended from time to time by
the Master Servicer in accordance with this Agreement and a copy of the
amended schedule shall be delivered to the NIM Insurer.
Prepayment Interest Shortfall: As to any Distribution Date, Mortgage
Loan, and Principal Prepayment, the excess of one month's interest at the
related Mortgage Rate (net of the related rate at which lender-paid primary
mortgage insurance premiums are calculated if relevant for the Mortgage Loan
and period involved) minus the Servicing Fee Rate on the Principal Prepayment
over the amount of interest paid in connection with the Principal Prepayment.
Prepayment Period: As to any Distribution Date, the prior calendar
month.
Primary Insurance Policy: Each policy of primary mortgage guaranty
insurance or any replacement policy therefor with respect to any Mortgage
Loan.
Principal Distribution Amount: For any Distribution Date, the sum of
(i) the Basic Principal Distribution Amount for the Distribution Date and (ii)
the Extra Principal Distribution Amount for the Distribution Date.
Principal Prepayment: Any payment of principal by a Mortgagor on a
Mortgage Loan (including the Purchase Price of any Modified Mortgage Loan
purchased pursuant to Section 3.12(c)) that is received in advance of its
scheduled Due Date and is not accompanied by an amount representing scheduled
interest due on any date in any month after the month of prepayment. The
Master Servicer shall apply partial Principal Prepayments in accordance with
the related Mortgage Note.
Principal Prepayment in Full: Any Principal Prepayment made by a
Mortgagor of the entire principal balance of a Mortgage Loan.
Principal Remittance Amount: For any Distribution Date, the sum of
the following amounts (without duplication) with respect to the preceding
Remittance Period:
(i) the principal portion of previously undistributed Scheduled
Payments due after the Cut-off Date and by the Due Date occurring in the
Remittance Period that were not the subject of a previous Advance and were
received by the Master Servicer before the related Determination Date or were
part of the Advance for the Determination Date,
(ii) each Principal Prepayment received by the Master Servicer during
the preceding calendar month,
(iii) the Liquidation Proceeds on the Mortgage Loans allocable to
principal actually collected by the Master Servicer during the preceding
calendar month,
(iv) the portion of the purchase price with respect to each Deleted
Mortgage Loan, the repurchase obligation for which arose during the preceding
calendar month and that was repurchased before the related Distribution
Account Deposit Date,
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(v) the principal portion of any Substitution Adjustment Amounts in
connection with a substitution of a Mortgage Loan as of the Distribution Date,
(vi) with respect to the Distribution Date occurring in the month
following the end of the Pre-Funding Period, the related Unused Pre-Funding
Amount, and
(vii) the allocable portion of the proceeds received with respect to
the termination of the Trust Fund (to the extent such proceeds relate to
principal).
Private Certificates: As specified in the Preliminary Statement.
Proprietary Lease: For any Cooperative Unit, a lease or occupancy
agreement between a Cooperative Corporation and a holder of related Coop
Shares.
Prospectus Supplement: The Prospectus Supplement dated October 29,
2001 relating to the Offered Certificates.
PUD: Planned Unit Development.
Purchase Price: For any Modified Mortgage Loan or any Mortgage Loan
required to be purchased by the Seller pursuant to Section 2.02 or 2.03 or
purchased at the option of the Master Servicer pursuant to Section 3.12, the
sum of
(i) 100% of the unpaid principal balance of the Mortgage Loan on the
date of the purchase, and
(ii) accrued interest on the Mortgage Loan at the applicable Mortgage
Rate (or at the applicable Adjusted Net Mortgage Rate if (x) the purchaser is
the Master Servicer or (y) if the purchaser is the Seller and the Seller is
the Master Servicer) from the date through which interest was last paid by the
Mortgagor to the Due Date in the month in which the Purchase Price is to be
distributed to Certificateholders.
If the Mortgage Loan is a Modified Mortgage Loan, the interest component of
the Purchase Price shall be computed (i) on the basis of the applicable
Adjusted Net Mortgage Rate before giving effect to the related modification
and (ii) from the date to which interest was last paid to the date on which
the Modified Mortgage Loan is assigned to the Master Servicer pursuant to
Section 3.12(c).
Qualified Insurer: A mortgage guaranty insurance company duly
qualified as such under the laws of the state of its principal place of
business and each state having jurisdiction over the insurer in connection
with the insurance policy issued by the insurer, duly authorized and licensed
in such states to transact a mortgage guaranty insurance business in such
states and to write the insurance provided by the insurance policy issued by
it, approved as a FNMA- or FHLMC-approved mortgage insurer or having a claims
paying ability rating of at least "AA" or equivalent rating by a nationally
recognized statistical rating organization.
Rating Agency: Each of the Rating Agencies specified in the
Preliminary Statement. If any of them or a successor is no longer in
existence, "Rating Agency" shall be the nationally
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recognized statistical rating organization, or other comparable Person,
designated by the Depositor, notice of which designation shall be given
to the Trustee. References to a given rating or rating category of a
Rating Agency means the rating category without giving effect to any
modifiers.
Recognition Agreement: For any Cooperative Loan, an agreement between
the Cooperative Corporation and the originator of the Mortgage Loan that
establishes the rights of the originator in the Cooperative Property.
Record Date: For any Definitive Certificate or any Fixed Rate
Certificate, the close of business on the last Business Day of the month
preceding the month of the related Distribution Date. For the Adjustable Rate
Certificates held in book-entry form, the close of business on the Business
Day before the related Distribution Date.
Reference Bank: As defined in Section 4.07.
Refinance Loan: Any Mortgage Loan the proceeds of which are used to
refinance an existing mortgage loan.
Regular Certificates: As specified in the Preliminary Statement.
Relevant Mortgage Loan: As defined in Section 3.12(c).
REMIC: A "real estate mortgage investment conduit" within the meaning
of section 860D of the Code.
REMIC Change of Law: Any proposed, temporary, or final regulation,
revenue ruling, revenue procedure, or other official announcement or
interpretation relating to REMICs and the REMIC Provisions issued after the
Closing Date.
REMIC Provisions: Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations promulgated thereunder, as the foregoing may be in effect from
time to time as well as provisions of applicable state laws.
Remittance Period: For any Distribution Date, the period commencing
on the second day of the month preceding the month in which the Distribution
Date occurs and ending on the first day of the month in which the Distribution
Date occurs.
REO Property: A Mortgaged Property acquired by the Trust Fund through
foreclosure or deed-in-lieu of foreclosure in connection with a defaulted
Mortgage Loan.
Request for Release: The Request for Release submitted by the Master
Servicer to the Trustee, substantially in the form of Exhibits M and N, as
appropriate.
Required Insurance Policy: For any Mortgage Loan, any insurance
policy that is required to be maintained from time to time under this
Agreement.
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Required Reserve Amount: (a) $10,000 on any Distribution Date that
the Group 2 WAC Cap exceeds the weighted average rate on the Adjustable Rate
Certificates (other than the Class AF-B1 and Class A-IO Certificates) by more
than 0.25%, and (b) the greater of (i) $10,000 or (ii) the product of 0.50%
and the Class Certificate Balance of the Adjustable Rate Certificates (other
than the Class AF-B1 Certificates) as of the Distribution Date, on any
Distribution Date that the Group 2 WAC Cap exceeds the weighted average rate
on the Adjustable Rate Certificates by less than 0.25%.
Residual Certificates: As specified in the Preliminary Statement.
Responsible Officer: When used with respect to the Trustee, any Vice
President, any Assistant Vice President, any Assistant Secretary, any
Assistant Treasurer, any Trust Officer, or any other officer of the Trustee
customarily performing functions similar to those performed by any of the
above designated officers who at such time shall be officers to whom, with
respect to a particular matter, the matter is referred because of the
officer's knowledge of and familiarity with the particular subject and who has
direct responsibility for the administration of this Agreement.
SAIF: The Savings Association Insurance Fund, or any successor thereto.
SAR Interest: As defined in the Preliminary Statement.
SBR Interest: As defined in the Preliminary Statement.
S&P: Standard & Poor's, a division of The XxXxxx-Xxxx Companies. If
S&P is designated as a Rating Agency in the Preliminary Statement, for
purposes of Section 10.05(b) the address for notices to S&P shall be Standard
& Poor's Ratings Group, a division of The XxXxxx-Xxxx Companies, Inc., 00
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Mortgage Surveillance
Monitoring, or any other address that S&P furnishes to the Depositor and the
Master Servicer.
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan
allocable to principal or interest on the Mortgage Loan that, unless otherwise
specified herein, shall give effect to any related Debt Service Reduction and
any Deficient Valuation that affects the amount of the monthly payment due on
the Mortgage Loan.
Securities Act: The Securities Act of 1933.
Security Agreement: For any Cooperative Loan, the agreement between
the owner of the related Coop Shares and the originator of the related
Mortgage Note that defines the security interest in the Coop Shares and the
related Proprietary Lease.
Seller: IndyMac Bank, F.S.B., a federal savings bank, and its
successors and assigns, in its capacity as seller of the Mortgage Loans to the
Depositor.
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Senior Enhancement Percentage: For any Distribution Date, the
percentage obtained by dividing
(x) the sum of (i) the aggregate Class Certificate Balance of
the Subordinated Certificates and (ii) the Subordinated Amount (in
each case after taking in to account the distributions of the
Principal Distribution Amount for the Distribution Date) by
(y) the aggregate Stated Principal Balance of all of the
Mortgage Loans as of the last day of the related Remittance Period.
Senior Specified Enhancement Percentage: As of any date of
determination, 36.00%.
Servicing Account: The separate Eligible Account or Accounts created
and maintained pursuant to Section 3.06(b).
Servicing Advances: All customary, reasonable, and necessary "out of
pocket" costs and expenses incurred in the performance by the Master Servicer
of its servicing obligations, including the cost of
(i) --
(a) the preservation, restoration, and protection of a
Mortgaged Property,
(b) expenses reimbursable to the Master Servicer pursuant to
Section 3.12 and any enforcement or judicial proceedings, including
foreclosures,
(c) the management and liquidation of any REO Property, and
(d) compliance with the obligations under Section 3.10; and
(ii) reasonable compensation to the Master Servicer or its affiliates
for acting as broker in connection with the sale of foreclosed Mortgaged
Properties and for performing certain default management and other similar
services (including appraisal services) in connection with the servicing of
defaulted Mortgage Loans. For purposes of clause (ii), only costs and expenses
incurred in connection with the performance of activities generally considered
to be outside the scope of customary servicing or master servicing duties
shall be treated as Servicing Advances.
Servicing Fee: As to each Mortgage Loan and any Distribution Date,
one month's interest at the applicable Servicing Fee Rate on the Stated
Principal Balance of the Mortgage Loan as of the Due Date occurring in the
preceding calendar month, or, whenever a payment of interest accompanies a
Principal Prepayment in Full made by the Mortgagor, interest at the Servicing
Fee Rate on the Stated Principal Balance of the Mortgage Loan for the period
covered by the payment of interest, subject to reduction as provided in
Section 3.15
Servicing Fee Rate: For any Mortgage Loan, 0.50%.
Servicing Officer: Any officer of the Master Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and facsimile signature
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appear on a list of servicing officers furnished to the Trustee by the Master
Servicer on the Closing Date pursuant to this Agreement, as the list may from
time to time be amended.
Servicing Standard: That degree of skill and care exercised by the
Master Servicer with respect to mortgage loans comparable to the Mortgage
Loans serviced by the Master Servicer for itself or others.
60+ Day Delinquent Loan: As of any day during any calendar month,
each Mortgage Loan in foreclosure, all REO Property, each Mortgage Loan for
which the Mortgagor has filed for bankruptcy, and each Mortgage Loan with
respect to which any portion of a Scheduled Payment is, as of the last day of
the Remittance Period before the Remittance Period ending in the calendar
month, two months or more past due (without giving effect to any grace
period). For instance, in making a determination on the Distribution Date in
July (July 25) with respect to a Mortgage Loan whose Scheduled Payment for May
is delinquent (and that has no previous Scheduled Payment that is delinquent),
that Mortgage Loan would not be a 60+ Day Delinquent Loan because as of the
last day of the Remittance Period before the Remittance Period ending in July
(which would be the Remittance Period ending in June (on June 1)), the
Scheduled Payment for May (due May 1) would only be one month past due.
Specified Subordinated Amount:
(i) for any Distribution Date before the Stepdown Date, 1.75% of the
sum of the Cut-off Date Principal Balance of the initial Mortgage Loans plus
the amount in the Pre-Funding Account; and
(ii) for any Distribution Date from the Stepdown Date and as long as
no Trigger Event exists, 3.50% of the aggregate Stated Principal Balance of
the Mortgage Loans as of the last day of the related Remittance Period,
subject to a minimum amount equal to 0.50% of the aggregate Stated Principal
Balance of the initial Mortgage Loans as of the related Cut-off Date plus the
amount in the Pre-Funding Account.
If, on any Distribution Date, a Trigger Event has occurred, the
Specified Subordinated Amount shall not be reduced to the applicable
percentage of the then current aggregate Stated Principal Balance of the
Mortgage Loans until the Distribution Date on which a Trigger Event is no
longer occurring.
Startup Day: The Closing Date.
Stated Principal Balance: As to any Mortgage Loan and Due Date, the
unpaid principal balance of the Mortgage Loan as of the Due Date as specified
in the amortization schedule at the time relating thereto (before any
adjustment to the amortization schedule for any moratorium or similar waiver
or grace period) after giving effect to any previous partial Principal
Prepayments and Liquidation Proceeds allocable to principal (other than with
respect to any Liquidated Mortgage Loan) and to the payment of principal due
on the Due Date and irrespective of any delinquency in payment by the related
Mortgagor.
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Stepdown Date: The later to occur of (i) the Distribution Date in
December 2004 and (ii) the first Distribution Date on which the Senior
Enhancement Percentage (calculated for this purpose only after taking into
account distributions of principal on the Mortgage Loans on the last day of
the related Remittance Period but before any application of Principal
Distribution Amount to the Certificates) is greater than or equal to the
Senior Specified Enhancement Percentage.
Subgroup 2A Principal Distribution Amount for any Distribution Date
is the product of:
(x) the Group 2 Principal Distribution Amount and
(y) the fraction whose numerator is
(i) the Principal Remittance Amount for the Mortgage Loans in
Loan Subgroup 2A for the Distribution Date and whose denominator is
(ii) the Principal Remittance Amount for the Mortgage Loans in
Loan Group 2 for that Distribution Date.
Subgroup 2B Principal Distribution Amount for any Distribution Date
is the product of:
(x) the Group 2 Principal Distribution Amount and
(y) the fraction whose numerator is
(i) the Principal Remittance Amount for the Mortgage
Loans in Loan Subgroup 2B for the Distribution Date and whose
denominator is
(ii) the Principal Remittance Amount for the Mortgage
Loans in Loan Group 2 for that Distribution Date.
Subgroup 1A Principal Distribution Amount for any Distribution Date
is the product of:
(x) the Group 1 Principal Distribution Amount and
(y) the fraction whose numerator is
(i) the Principal Remittance Amount for the Mortgage
Loans in Loan Subgroup 1A for the Distribution Date and whose
denominator is
(ii) the Principal Remittance Amount for the Mortgage
Loans in Loan Group 1 for that Distribution Date.
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Subgroup 1B Principal Distribution Amount for any Distribution Date
is the product of:
(x) the Group 1 Principal Distribution Amount and
(y) the fraction whose numerator is
(i) the Principal Remittance Amount for the Mortgage
Loans in Loan Subgroup 1B for the Distribution Date and whose
denominator is
(ii) the Principal Remittance Amount for the Mortgage
Loans in Loan Group 1 for that Distribution Date.
Subordinated Amount: For any Distribution Date, the excess of
(a) the aggregate Stated Principal Balance of the Mortgage Loans as
of the end of the related Remittance Period plus the amount in the Pre-Funding
Account excluding investment earnings over
(b) the aggregate of the Class Certificate Balances of the Offered
Certificates as of the Distribution Date (after giving effect to the payment
of principal on the Certificates on the Distribution Date).
Subordinated Certificates: As specified in the Preliminary Statement.
Subordination Deficiency: For any Distribution Date, the excess of
(a) the Specified Subordinated Amount applicable to the Distribution Date over
(b) the Subordinated Amount applicable to the Distribution Date.
Subordination Reduction Amount: For any Distribution Date, the lesser
of (a) the Excess Subordinated Amount and (b) the Total Monthly Excess Spread.
Subsequent Mortgage Loan: Such of the mortgage loans transferred and
assigned to the Trustee pursuant to (i) a Subsequent Transfer Agreement and
(ii) the provisions hereof, as from time to time are held as a part of the
Trust Fund (including any REO Property), the mortgage loans so held being
identified on the Mortgage Loan Schedule for the related Subsequent Transfer
Date, notwithstanding foreclosure or other acquisition of title of the related
Mortgaged Property. When used with respect to a single Subsequent Transfer
Date, "Subsequent Mortgage Loan" means a Subsequent Mortgage Loan conveyed to
the Trust Fund on the Subsequent Transfer Date.
Subsequent Transfer Agreement: A Subsequent Transfer Agreement
substantially in the form of Exhibit Q, executed and delivered by the Seller,
the Depositor, and the Trustee as provided in Section 2.09(a).
Subsequent Transfer Date: For any Subsequent Transfer Agreement, the
"Subsequent Transfer Date" identified in the Subsequent Transfer Agreement.
The Subsequent Transfer Date for any Subsequent Transfer Agreement may not be
a date earlier than the date on which the
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Subsequent Transfer Agreement is executed and delivered by the parties thereto
pursuant to Section 2.09(a).
Subservicer: As defined in Section 3.02(a).
Subsidiary REMIC A: As defined in the Preliminary Statement.
Subsidiary REMIC A Regular Interests: As defined in the Preliminary
Statement.
Subsidiary REMIC B: As defined in the Preliminary Statement.
Subsidiary REMIC B Regular Interests: As defined in the Preliminary
Statement.
Substitute Mortgage Loan: A Mortgage Loan substituted by the Seller
for a Deleted Mortgage Loan that must, on the date of substitution, as
confirmed in a Request for Release, substantially in the form of Exhibit M,
(i) have a Stated Principal Balance, after deduction of the principal
portion of the Scheduled Payment due in the month of substitution, not in
excess of, and not more than 10% less than, the Stated Principal Balance of
the Deleted Mortgage Loan;
(ii) be accruing interest at a rate no lower than and not more than
1% per annum higher than, that of the Deleted Mortgage Loan;
(iii) have a Loan-to-Value Ratio or Combined Loan-to-Value Ratio (as
applicable) no higher than that of the Deleted Mortgage Loan;
(iv) have a remaining term to maturity no greater than (and not more
than one year less than that of) the Deleted Mortgage Loan;
(v) not be a Cooperative Loan unless the Deleted Mortgage Loan was a
Cooperative Loan; and
(vi) comply with each representation and warranty in Section 2.03;
and
(vii) satisfy the criteria for inclusion in the applicable Loan
Subgroup.
Substitution Adjustment Amount: As defined in Section 2.03.
Sub WAC: For any Distribution Date, a per annum rate equal to a
weighted average of (i) the Adjusted Group 1 Net WAC Rate and (ii) the
Adjusted Group 2 Net WAC Rate for such Distribution Date, weighted on the
basis of the Group 1 Subordinate Amount and Group 2 Subordinate Amount.
Telerate Page 3750: The display page currently so designated on the
Bridge Telerate Information Services, Inc. (or any page replacing that page on
that service for the purpose of displaying London inter-bank offered rates of
major banks).
Total Monthly Excess Spread: For any Distribution Date, the excess of
(i) the interest collected or advanced on the Mortgage Loans during the
related Remittance Period plus the
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Capitalized Interest Requirement for the Distribution Date over (ii) the sum of
the amounts paid to the Certificates on the Distribution Date pursuant to
Section 4.02(I)(a).
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
Trigger Event: With respect to any Distribution Date after a Stepdown
Date exists if the quotient of (x) the three month rolling average of the
Stated Principal Balance of 60+ Day Delinquent Loans as of the last day of the
preceding calendar month over (y) the Stated Principal Balance of the Mortgage
Loans, as of the last day of the preceding calendar month, equals or exceeds
40% of the related Senior Enhancement Percentage.
Trust Fund: The corpus of the trust created under this Agreement
consisting of
(i) the Mortgage Loans and all interest and principal received on
them after the related Cut-off Date, other than amounts due on the Mortgage
Loans by the related Cut-off Date;
(ii) the Certificate Account, Excess Reserve Fund Account, the
Distribution Account, the Pre-Funding Account, and the Capitalized Interest
Account, as of the last day of the related Remittance Period, and all amounts
deposited therein pursuant to this Agreement (including amounts received from
the Seller on the Closing Date that will be deposited by the Trustee in the
Certificate Account pursuant to Section 2.01);
(iii) property that secured a Mortgage Loan and has been acquired by
foreclosure, deed-in-lieu of foreclosure, or otherwise;
(iv) the right to collect any amounts under any mortgage insurance
policies covering any Mortgage Loan and any collections received under any
mortgage insurance policies covering any Mortgage Loan; and
(v) all proceeds of the conversion, voluntary or involuntary, of any
of the foregoing.
Trustee: Bankers Trust Company of California, N.A. and its successors
and, if a successor trustee is appointed under this Agreement, the successor.
Trustee Fee: As to each Mortgage Loan and any Distribution Date, one
month's interest at the related Trustee Fee Rate on the Stated Principal
Balance of the Mortgage Loan as of the Due Date occurring in the preceding
calendar month or, whenever a payment of interest accompanies a Principal
Prepayment in Full made by the Mortgagor during the preceding calendar month,
interest at the Trustee Fee Rate on the Stated Principal Balance of the
Mortgage Loan for the period covered by the payment of interest.
Trustee Fee Rate: For each Mortgage Loan, the per annum rate agreed
upon in writing by the Closing Date by the Trustee and the Depositor.
United States Person or U.S. Person: (i) A citizen or resident of the
United States;
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(ii) a corporation (or entity treated as a corporation for tax
purposes) created or organized in the United States or under the laws of the
United States or of any state thereof, including, for this purpose, the
District of Columbia;
(iii) a partnership (or entity treated as a partnership for tax
purposes) organized in the United States or under the laws of the United
States or of any state thereof, including, for this purpose, the District of
Columbia (unless provided otherwise by future Treasury regulations);
(iv) an estate whose income is includible in gross income for United
States income tax purposes regardless of its source; or
(v) a trust, if a court within the United States is able to exercise
primary supervision over the administration of the trust and one or more U.S.
Persons have authority to control all substantial decisions of the trust.
Notwithstanding the last clause of the preceding sentence, to the extent
provided in Treasury regulations, certain trusts in existence on August 20,
1996, and treated as U.S. Persons before that date, may elect to continue to
be U.S. Persons.
Unpaid Interest Amounts: As of any Distribution Date and any Class of
Certificates, the sum of
(a) the excess of
(i) the sum of the Accrued Certificate Interest Distribution
Amount for the Distribution Date and any portion of the Accrued
Certificate Interest Distribution Amount from prior Distribution Dates
remaining unpaid over
(ii) the amount in respect of interest on the Class of
Certificates actually distributed on the preceding Distribution Date
and
(b) interest on that excess for the related Interest Accrual Period at the
applicable Pass-Through Rate (to the extent permitted by applicable law).
Unpaid Realized Loss Amount: For any Class of Subordinated
Certificates and any Distribution Date, is the excess of (i) Applied Realized
Loss Amounts for the Class over (ii) the sum of all distributions in reduction
of Applied Realized Loss Amounts for the Class on all previous Distribution
Dates. Any amounts distributed to a Class of Subordinated Certificates with
respect to any Unpaid Realized Loss Amount will not be applied to reduce the
Class Certificate Balance of the Class.
Unused Pre-Funding Amount: The Pre-Funding Amount immediately after
the end of the Pre-Funding Period.
Voting Rights: The portion of the voting rights of all of the
Certificates that is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to any Class X
Certificates and 1% of all Voting Rights shall be allocated to any Class A-IO
Certificates and (b) the remaining Voting Rights shall be allocated among
Holders of the remaining Classes of Certificates in proportion to the
Certificate Balances or notional
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amounts, as applicable, of their respective Certificates on the date (the
Voting Rights to be allocated among the holders of Certificates of each Class
in accordance with their respective Percentage Interests or Notional Amount,
as the case may be).
Section 1.02. Rules of Construction.
Except as otherwise expressly provided in this Agreement or unless
the context clearly requires otherwise:
(a) References to designated articles, sections, subsections,
exhibits, and other subdivisions of this Agreement, such as "Section 6.12
(a)," refer to the designated article, section, subsection, exhibit, or other
subdivision of this Agreement as a whole and to all subdivisions of the
designated article, section, subsection, exhibit, or other subdivision. The
words "herein," "hereof," "hereto," "hereunder," and other words of similar
import refer to this Agreement as a whole and not to any particular article,
section, exhibit, or other subdivision of this Agreement.
(b) Any term that relates to a document or a statute, rule, or
regulation includes any amendments, modifications, supplements, or any other
changes that may have occurred since the document, statute, rule, or
regulation came into being, including changes that occur after the date of
this Agreement.
(c) Any party may execute any of the requirements under this
Agreement either directly or through others, and the right to cause something
to be done rather than doing it directly shall be implicit in every
requirement under this Agreement. Unless a provision is restricted as to time
or limited as to frequency, all provisions under this Agreement are implicitly
available and things may happen from time to time.
(d) The term "including" and all its variations mean "including but
not limited to." Except when used in conjunction with the word "either," the
word "or" is always used inclusively (for example, the phrase "A or B" means
"A or B or both," not "either A or B but not both").
(e) A reference to "a [thing]" or "any [of a thing]" does not imply
the existence or occurrence of the thing referred to even though not followed
by "if any," and "any [of a thing]" is any of it. A reference to the plural of
anything as to which there could be either one or more than one does not imply
the existence of more than one (for instance, the phrase "the obligors on a
note" means "the obligor or obligors on a note"). "Until [something occurs]"
does not imply that it must occur, and will not be modified by the word
"unless." The word "due" and the word "payable" are each used in the sense
that the stated time for payment has passed. The word "accrued" is used in its
accounting sense, i.e., an amount paid is no longer accrued. In the
calculation of amounts of things, differences and sums may generally result in
negative numbers, but when the calculation of the excess of one thing over
another results in zero or a
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negative number, the calculation is disregarded and an "excess" does not exist.
Portions of things may be expressed as fractions or percentages interchangeably.
(f) All accounting terms used in an accounting context and not
otherwise defined, and accounting terms partly defined in this Agreement, to
the extent not completely defined, shall be construed in accordance with
generally accepted accounting principles. To the extent that the definitions
of accounting terms in this Agreement are inconsistent with their meanings
under generally accepted accounting principles, the definitions contained in
this Agreement shall control. Capitalized terms used in this Agreement without
definition that are defined in the Uniform Commercial Code are used in this
Agreement as defined in the Uniform Commercial Code.
(g) In the computation of a period of time from a specified date to a
later specified date or an open-ended period, the words "from" and "beginning"
mean "from and including," the word "after" means "from but excluding," the
words "to" and "until" mean "to but excluding," and the word "through" means
"to and including." Likewise, in setting deadlines or other periods, "by"
means "on or before." The words "preceding," "following," and words of similar
import, mean immediately preceding or following. References to a month or a
year refer to calendar months and calendar years.
(h) Any reference to the enforceability of any agreement against a
party means that it is enforceable, subject as to enforcement against the
party, to applicable bankruptcy, insolvency, reorganization, and other similar
laws of general applicability relating to or affecting creditors' rights and
to general equity principles.
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ARTICLE TWO
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
Section 2.01. Conveyance of Mortgage Loans.
(a) The Seller, concurrently with the execution and delivery of this
Agreement, hereby transfers to the Depositor, without recourse, all the
interest of the Seller in each Initial Mortgage Loan, including all interest
and principal due to the Seller on each Initial Mortgage Loan after the
related Cut-off Date and all interest and principal payments on each Initial
Mortgage Loan received by the related Cut-off Date for installments of
interest and principal due after the related Cut-Off Date but not including
payments of principal and interest due on each Initial Mortgage Loan by the
related Cut-off Date. By the Closing Date, the Seller shall deliver to the
Depositor or, at the Depositor's direction, to the Trustee or other designee
of the Depositor, the Mortgage File for each Initial Mortgage Loan listed in
the Mortgage Loan Schedule as of the Closing Date. The delivery of the
Mortgage Files shall be made against payment by the Depositor of the purchase
price, previously agreed to by the Seller and Depositor, for the Initial
Mortgage Loans.
(b) The Depositor, concurrently with the execution and delivery of
this Agreement, hereby transfers to the Trustee for the benefit of the
Certificateholders, without recourse, all the interest of the Depositor in the
Trust Fund, together with the Depositor's right to require the Seller to cure
any breach of a representation or warranty made in this Agreement by the
Seller or to repurchase or substitute for any affected Initial Mortgage Loan
in accordance with this Agreement.
(c) In connection with the transfer and assignment of each Initial
Mortgage Loan, the Depositor has delivered (or, in the case of the Delay
Delivery Mortgage Loans, will deliver to the Trustee within the time periods
specified in the definition of Delay Delivery Mortgage Loans), and, in
connection with the transfer and assignment of each Subsequent Mortgage Loan,
will deliver to the Trustee for the benefit of the Certificateholders the
following documents or instruments with respect to each Mortgage Loan so
assigned.
(i) The original Mortgage Note, endorsed by manual or facsimile
signature in blank in the following form: "Pay to the order of
_______________ ______________without recourse," with all
intervening endorsements showing a complete chain of endorsement
from the originator to the Person endorsing the Mortgage Note (each
endorsement being sufficient to transfer all interest of the party
so endorsing, as noteholder or assignee thereof, in that Mortgage
Note) or a lost note affidavit for any Lost Mortgage Note from the
Seller stating that the original Mortgage Note was lost or
destroyed, together with a copy of the Mortgage Note.
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(ii) Except as provided below, the original recorded Mortgage
or a copy of the Mortgage certified by the Seller (or, in the case
of a Mortgage for which the related Mortgaged Property is located in
the Commonwealth of Puerto Rico, a copy of the Mortgage certified by
the applicable notary) as being a true and complete copy of the
Mortgage.
(iii) A duly executed assignment of the Mortgage (which may be
included in a blanket assignment or assignments), together with,
except as provided below, all interim recorded assignments of the
mortgage (each assignment, when duly and validly completed, to be in
recordable form and sufficient to effect the assignment of and
transfer to its assignee of the Mortgage to which the assignment
relates). If the related Mortgage has not been returned from the
applicable public recording office, the assignment of the Mortgage
may exclude the information to be provided by the recording office.
The assignment of Mortgage need not be delivered in the case of a
Mortgage for which the related Mortgage Property is located in the
Commonwealth of Puerto Rico.
(iv) The original or copies of each assumption, modification,
written assurance, or substitution agreement.
(v) Except as provided below, the original or duplicate
original lender's title policy and all its riders.
(vi) The originals of the following documents for each
Cooperative Loan:
(A) the Coop Shares, together with a stock power in blank;
(B) the executed Security Agreement;
(C) the executed Proprietary Lease;
(D) the executed Recognition Agreement;
(E) the executed UCC-1 financing statement that has been
filed in all places required to perfect the Seller's interest
in the Coop Shares and the Proprietary Lease with evidence of
recording on it; and
(F) executed UCC-3 financing statements or other
appropriate UCC financing statements required by state law,
evidencing a complete and unbroken line from the mortgagee to
the Trustee with evidence of recording thereon (or in a form
suitable for recordation).
If in connection with any Mortgage Loan the Depositor cannot deliver
(a) the original recorded Mortgage,
(b) all interim recorded assignments, or
(c) the lender's title policy (together with all its riders)
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satisfying the requirements of clause (ii), (iii), or (v) above, respectively,
concurrently with the execution and delivery of this Agreement because any of
them have not been returned from the applicable public recording office in the
case of clause (ii) or (iii) above, or because the title policy has not been
delivered to either the Master Servicer or the Depositor by the applicable
title insurer in the case of clause (v) above,
then the Depositor shall promptly deliver to the Trustee, in the case of
clause (ii) or (iii) above, the original Mortgage or the interim assignment,
as the case may be, with evidence of recording indicated on it when it is
received from the public recording office, or a copy of it, certified, if
appropriate, by the relevant recording office.
The delivery of the original Mortgage Loan and each interim
assignment or a copy of them, certified, if appropriate, by the relevant
recording office, shall not be made later than one year following the Closing
Date (or, for a Subsequent Mortgage Loan, the Subsequent Transfer Date), or,
in the case of clause (v) above, later than 120 days following the Closing
Date (or, for a Subsequent Mortgage Loan, the Subsequent Transfer Date). If
the Depositor is unable to deliver each Mortgage by that date and each interim
assignment because any documents have not been returned by the appropriate
recording office, or, in the case of each interim assignment, because the
related Mortgage has not been returned by the appropriate recording office,
the Depositor shall deliver the documents to the Trustee as promptly as
possible upon their receipt and, in any event, within 720 days following the
Closing Date (or, for a Subsequent Mortgage Loan, the Subsequent Transfer
Date).
The Depositor shall forward to the Trustee (a) from time to time
additional original documents evidencing an assumption or modification of a
Mortgage Loan and (b) any other documents required to be delivered by the
Depositor or the Master Servicer to the Trustee. If the original Mortgage is
not delivered and in connection with the payment in full of the related
Mortgage Loan the public recording office requires the presentation of a "lost
instruments affidavit and indemnity" or any equivalent document, because only
a copy of the Mortgage can be delivered with the instrument of satisfaction or
reconveyance, the Master Servicer shall execute and deliver the required
document to the public recording office. If a public recording office retains
the original recorded Mortgage or if a Mortgage is lost after recordation in a
public recording office, the Seller shall deliver to the Trustee a copy of the
Mortgage certified by the public recording office to be a true and complete
copy of the original recorded Mortgage.
As promptly as practicable after any transfer of a Mortgage Loan
under this Agreement, and in any event within thirty days after the transfer,
the Trustee shall (i) affix the Trustee's name to each assignment of Mortgage,
as its assignee, and (ii) cause to be delivered for recording in the
appropriate public office for real property records the assignments of the
Mortgages to the Trustee, except that, if the Trustee has not received the
information required to deliver any assignment of a Mortgage for recording,
the Trustee
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shall deliver it for as soon as practicable after receipt of the needed
information and in any event within thirty days.
The Trustee need not record any assignment that relates to a Mortgage
Loan (a) the Mortgaged Property and Mortgage File relating to which are
located in California or (b) in any other jurisdiction (including Puerto Rico)
under the laws of which, as evidenced by an Opinion of Counsel delivered by
the Seller (at the Seller's expense) to the Trustee, recording the assignment
is not necessary to protect the Trustee's and the Certificateholders' interest
in the related Mortgage Loan.
If any Mortgage Loans have been prepaid in full as of the Closing
Date, the Depositor, in lieu of delivering the above documents to the Trustee,
will deposit in the Certificate Account the portion of the prepayment that is
required to be deposited in the Certificate Account pursuant to Section 3.06.
Notwithstanding anything to the contrary in this Agreement, within
five Business Days after the Closing Date (in the case of Initial Mortgage
Loans) or within thirty days of the Subsequent Transfer Date (in the case of
Subsequent Mortgage Loans), the Seller shall either
(i) deliver to the Trustee the Mortgage File as required pursuant to
this Section 2.01 for each Delay Delivery Mortgage Loan or
(ii) (A) repurchase the Delay Delivery Mortgage Loan or (B)
substitute the Delay Delivery Mortgage Loan for a Substitute Mortgage Loan,
which repurchase or substitution shall be accomplished in the manner and
subject to the conditions in Section 2.03.
If the Seller fails to deliver a Mortgage File for any Delay Delivery
Mortgage Loan within thirty days of the Subsequent Transfer Date, the cure
period provided for in Section 2.02 or in Section 2.03 shall not apply to the
initial delivery of the Mortgage File for the Delay Delivery Mortgage Loan,
but rather the Seller shall have five Business Days to cure the failure to
deliver, and shall promptly provide each Rating Agency with written notice of
any cure, repurchase, or substitution. By the fifth Business Day after the
Closing Date (in the case of Initial Mortgage Loans) or the thirtieth day (or
if that day is not a Business Day, the next Business Day) after the Subsequent
Transfer Date (in the case of Subsequent Mortgage Loans), the Trustee shall,
in accordance with Section 2.02, send a Delay Delivery Certification
substantially in the form of Exhibit G-1 (with any applicable exceptions noted
thereon) for all Delay Delivery Mortgage Loan delivered within the specified
numbers of days after the pertinent date. The Trustee will promptly send a
copy of such Delay Delivery Certification to each Rating Agency.
(d) The Seller agrees to treat the transfer of the Mortgage Loans to
the Depositor as a sale for all tax, accounting, and regulatory purposes.
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Section 2.02. Acceptance by the Trustee of the Mortgage Loans.
(a) The Trustee acknowledges receipt of the documents identified in the
Initial Certification in the form of Exhibit G, and receipt of the amount of
$99,633,622.33 for deposit in the Pre-Funding Account and declares that it
holds and will hold such documents and the other documents delivered to it
constituting the Mortgage Files for the Initial Mortgage Loans, that it holds
and will hold all amounts in the Pre-Funding Account and the Capitalized
Interest Account, and that it holds or will hold such other assets as are
included in the Trust Fund, in trust for the exclusive use and benefit of all
present and future Certificateholders. The Trustee acknowledges that it will
maintain possession of the related Mortgage Notes in the State of California,
unless otherwise permitted by the Rating Agencies.
The Trustee agrees to execute and deliver on the Closing Date to the
Depositor, the Master Servicer, and the Seller an Initial Certification in the
form of Exhibit G. Based on its review and examination, and only as to the
documents identified in the Initial Certification, the Trustee acknowledges
that the documents appear regular on their face and relate to the Initial
Mortgage Loans. The Trustee shall be under no duty to inspect, review, or
examine said documents, instruments, certificates, or other papers to
determine that the same are genuine, enforceable, or appropriate for the
represented purpose or that they have actually been recorded in the real
estate records or that they are other than what they purport to be on their
face.
By the thirtieth day after the Closing Date (or if that day is not a
Business Day, the succeeding Business Day), the Trustee shall deliver to the
Depositor, the Master Servicer, and the Seller a Delay Delivery Certification
with respect to the Initial Mortgage Loans substantially in the form of
Exhibit G-1, with any applicable exceptions noted thereon.
Not later than 90 days after the Closing Date, the Trustee shall
deliver to the Depositor, the Master Servicer, and the Seller a Final
Certification in the form of Exhibit H, with any applicable exceptions noted
thereon.
If, in the course of its review, the Trustee finds any document
constituting a part of a Mortgage File that does not meet the requirements of
Section 2.01, the Trustee shall list such as an exception in the Final
Certification. The Trustee shall not make any determination as to whether (i)
any endorsement is sufficient to transfer all interest of the party so
endorsing, as noteholder or assignee thereof, in that Mortgage Note or (ii)
any assignment is in recordable form or is sufficient to effect the assignment
of and transfer to the assignee thereof under the mortgage to which the
assignment relates. The Seller shall promptly correct any defect within 90
days from the date it was so notified of the defect and, if the Seller does
not correct the defect within that period, the Seller shall either (a)
substitute for the related Initial Mortgage Loan a Substitute Mortgage Loan,
which substitution shall be accomplished in the pursuant Section 2.03, or (b)
purchase the Initial Mortgage Loan at its Purchase Price from the Trustee
within 90 days from the date the Seller was notified of the defect in writing.
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If a substitution or purchase of an Initial Mortgage Loan pursuant to
this provision is required because of a delay in delivery of any documents by
the appropriate recording office, or there is a dispute between either the
Master Servicer or the Seller and the Trustee over the location or status of
the recorded document, then the substitution or purchase shall occur within
720 days from the Closing Date. In no other case may a substitution or
purchase occur more than 540 days from the Closing Date.
The Trustee shall deliver written notice to each Rating Agency within
270 days from the Closing Date indicating each Initial Mortgage Loan (a) that
has not been returned by the appropriate recording office or (b) as to which
there is a dispute as to location or status of the Initial Mortgage Loan. The
notice shall be delivered every 90 days thereafter until the related Initial
Mortgage Loan is returned to the Trustee. Any substitution pursuant to (a)
above or purchase pursuant to (b) above shall not be effected before the
delivery to the Trustee of the Opinion of Counsel required by Section 2.05,
and any substitution pursuant to (a) above shall not be effected before the
additional delivery to the Trustee of a Request for Release substantially in
the form of Exhibit N. No substitution is permitted to be made in any calendar
month after the Determination Date for the month.
The Purchase Price for any Initial Mortgage Loan shall be deposited
by the Seller in the Certificate Account by the Distribution Account Deposit
Date for the Distribution Date in the month following the month of repurchase
and, upon receipt of the deposit and certification with respect thereto in the
form of Exhibit N, the Trustee shall release the related Mortgage File to the
Seller and shall execute and deliver at the Seller's request any instruments
of transfer or assignment prepared by the Seller, in each case without
recourse, necessary to vest in the Seller, or a designee, the Trustee's
interest in any Initial Mortgage Loan released pursuant hereto.
The Trustee shall retain possession and custody of each Mortgage File
in accordance with and subject to the terms and conditions herein. The Master
Servicer shall promptly deliver to the Trustee, upon the execution or receipt
thereof, the originals of such other documents or instruments constituting the
Mortgage File as come into the possession of the Master Servicer from time to
time.
The obligation of the Seller to substitute for or to purchase any
Initial Mortgage Loan that does not meet the requirements of Section 2.01
shall constitute the sole remedy respecting the defect available to the
Trustee, the Depositor, and any Certificateholder against the Seller.
(b) The Trustee agrees to execute and deliver to the Depositor, the
Master Servicer, and the Seller on the Subsequent Transfer Date an Initial
Certification in the form of Exhibit G acknowledging receipt of the documents
identified in such Initial Certification and declaring that it holds and will
hold such documents and the other documents delivered to it constituting the
Mortgage Files for the related Subsequent Mortgage Loans, and that it
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holds or will hold such other assets as are included in the Trust Fund, in
trust for the exclusive use and benefit of all present and future
Certificateholders. The Trustee acknowledges that it will maintain possession
of the related Mortgage Notes in the State of California, unless otherwise
permitted by the Rating Agencies.
Based on its review and examination, and only as to the documents
identified in such Initial Certification, the Trustee acknowledges that such
documents appear regular on their face and relate to such Subsequent Mortgage
Loan. The Trustee shall be under no duty to inspect, review, or examine said
documents, instruments, certificates, or other papers to determine that the
same are genuine, enforceable, or appropriate for the represented purpose or
that they have actually been recorded in the real estate records or that they
are other than what they purport to be on their face.
Not later than 90 days after the Subsequent Transfer Date, the
Trustee shall deliver to the Depositor, the Master Servicer, and the Seller a
Final Certification in the form of Exhibit H, with any applicable exceptions
noted thereon.
If, in the course of its review, the Trustee finds any document
constituting a part of a Subsequent Mortgage File that does not meet the
requirements of Section 2.01, the Trustee shall list such as an exception in
the Final Certification. The Trustee shall not make any determination as to
whether (i) any endorsement is sufficient to transfer all interest of the
party so endorsing, as Noteholder or assignee thereof, in that Mortgage Note
or (ii) any assignment is in recordable form or is sufficient to effect the
assignment of and transfer to the assignee thereof under the mortgage to which
the assignment relates. The Seller shall promptly correct the defect within 90
days from the date it was so notified of the defect and, if the Seller does
not correct the defect within that period, the Seller shall either (a)
substitute for the related Subsequent Mortgage Loan a Substitute Mortgage
Loan, which substitution shall be accomplished pursuant to Section 2.03, or
(b) purchase the Subsequent Mortgage Loan from the Trustee within 90 days from
the date the Seller was notified of the defect in writing at the Purchase
Price of the Subsequent Mortgage Loan.
If the substitution or purchase of a Subsequent Mortgage Loan
pursuant to this provision is required because of a delay in delivery of any
documents by the appropriate recording office, or there is a dispute between
either the Master Servicer or the Seller and the Trustee over the location or
status of the recorded document, then the substitution or purchase shall occur
within 720 days from the Subsequent Transfer Date. In no other case shall the
substitution or purchase occur more than 540 days from the Subsequent Transfer
Date. The Trustee shall deliver written notice to each Rating Agency within
270 days from the Subsequent Transfer Date indicating each Subsequent Mortgage
Loan (a) that has not been returned by the appropriate recording office or (b)
as to which there is a dispute as to location or status of the Mortgage Loan.
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The notice shall be delivered every 90 days thereafter until the
related Subsequent Mortgage Loan is returned to the Trustee. Any substitution
pursuant to (a) above or purchase pursuant to (b) above shall not be effected
before the delivery to the Trustee of the Opinion of Counsel required by
Section 2.05, and any substitution pursuant to (a) above shall not be effected
before the additional delivery to the Trustee of a Request for Release
substantially in the form of Exhibit N. No substitution is permitted to be
made in any calendar month after the Determination Date for the month. The
Purchase Price for any Subsequent Mortgage Loan shall be deposited by the
Seller in the Certificate Account by the Distribution Account Deposit Date for
the Distribution Date in the month following the month of repurchase and, upon
receipt of the deposit and certification with respect thereto in the form of
Exhibit N, the Trustee shall release the related Mortgage File to the Seller
and shall execute and deliver at the Seller's request any instruments of
transfer or assignment prepared by the Seller, in each case without recourse,
necessary to vest in the Seller, or a designee, the Trustee's interest in any
Subsequent Mortgage Loan released pursuant hereto.
The Trustee shall retain custody of each related Mortgage File in
accordance with and subject to the terms of this Agreement. The Master
Servicer shall promptly deliver to the Trustee, upon the execution or receipt
thereof, the originals of any other documents or instruments constituting the
Subsequent Mortgage File that come into the possession of the Master Servicer
from time to time.
The obligation of the Seller to substitute for or to purchase any
Subsequent Mortgage Loan that does not meet the requirements of Section 2.01
shall constitute the sole remedy respecting the defect available to the
Trustee, the Depositor, and any Certificateholder against the Seller.
Section 2.03. Representations, Warranties, and Covenants of the Seller
and the Master Servicer.
(a) IndyMac, in its capacities as Seller and Master Servicer, hereby
makes the representations and warranties in Schedule II, and by this reference
incorporated herein, to the Depositor and the Trustee, as of the Closing Date.
(b) The Seller, in its capacity as Seller, hereby makes the
representations and warranties in Schedule III, and by this reference
incorporated herein, to the Depositor and the Trustee, as of the Closing Date,
or if so specified therein, as of the related Cut-off Date.
(c) Upon discovery by any of the parties hereto of a breach of a
representation or warranty made pursuant to Section 2.03(b) that materially
and adversely affects the interests of the Certificateholders in any Mortgage
Loan, the party discovering such breach shall give prompt notice thereof to
the other parties and the NIM Insurer. The Seller hereby covenants that within
90 days of the earlier of its discovery or its receipt of written notice from
any party of a breach of any representation or warranty made pursuant to
Section 2.03(b) that materially and adversely affects the interests of the
Certificateholders in any Mortgage Loan,
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it shall cure such breach in all material respects, and if such breach is not
so cured, shall, (i) if the 90 day period expires before the second
anniversary of the Closing Date, remove the Mortgage Loan (a "Deleted Mortgage
Loan") from the Trust Fund and substitute in its place a Substitute Mortgage
Loan, in accordance with this Section 2.03; or (ii) repurchase the affected
Mortgage Loan or Mortgage Loans from the Trustee at the Purchase Price in the
manner stated below. Any substitution pursuant to (i) above shall not be
effected before the delivery to the Trustee of the Opinion of Counsel required
by Section 2.05 and a Request for Release substantially in the form of Exhibit
N, and the Mortgage File for any Substitute Mortgage Loan. Anything to the
contrary herein notwithstanding, Seller shall have no obligation to cure any
breach or to repurchase or substitute for the affected Mortgage Loan if the
substance of the breach constitutes fraud in the origination of the affected
Mortgage Loan and the Seller, at the time of origination and on the Closing
Date, did not have actual knowledge of the fraud. The Seller shall promptly
reimburse the Master Servicer and the Trustee for any expenses reasonably
incurred by the Master Servicer or the Trustee in respect of enforcing the
remedies for the breach.
With respect to any Substitute Mortgage Loan or Loans, the Seller
shall deliver to the Trustee for the benefit of the Certificateholders the
Mortgage Note, the Mortgage, the related assignment of the Mortgage, and any
other documents and agreements required by Section 2.01, with the Mortgage
Note endorsed and the Mortgage assigned as required by Section 2.01. No
substitution is permitted to be made in any calendar month after the
Determination Date for the month. Scheduled Payments due with respect to
Substitute Mortgage Loans in the Remittance Period of substitution shall not
be part of the Trust Fund and will be retained by the Seller on the next
Distribution Date. For the Remittance Period of substitution, distributions to
Certificateholders will include the monthly payment due on any Deleted
Mortgage Loan for the Remittance Period and thereafter the Seller shall be
entitled to retain all amounts received with respect to the Deleted Mortgage
Loan.
The Master Servicer shall amend the Mortgage Loan Schedule for the
benefit of the Certificateholders to reflect the removal of the Deleted
Mortgage Loan and the substitution of the Substitute Mortgage Loans and the
Master Servicer shall deliver the amended Mortgage Loan Schedule to the
Trustee. Upon the substitution, the Substitute Mortgage Loans shall be subject
to this Agreement in all respects, and the Seller shall be deemed to have made
with respect to the Substitute Mortgage Loans, as of the date of substitution,
the representations and warranties made pursuant to Section 2.03(b) with
respect to the Mortgage Loan. Upon any substitution and the deposit to the
Certificate Account of the amount required to be deposited therein in
connection with the substitution as described in the following paragraph, the
Trustee shall release the Mortgage File held for the benefit of the
Certificateholders relating to the Deleted Mortgage Loan to the Seller and
shall execute and deliver at the Seller's direction such instruments of
transfer or assignment prepared by the Seller, in each case without recourse,
as shall be necessary to vest title in the Seller, or its
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designee, the Trustee's interest in any Deleted Mortgage Loan substituted for
pursuant to this Section 2.03.
For any month in which the Seller substitutes one or more Substitute
Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer
will determine the amount by which the aggregate principal balance of all such
Substitute Mortgage Loans as of the date of substitution is less than the
aggregate Stated Principal Balance of all the Deleted Mortgage Loans (after
application of the scheduled principal portion of the monthly payments due in
the Remittance Period of substitution). The amount of the shortage (the
"Substitution Adjustment Amount") plus, if the Seller is not the Master
Servicer, the aggregate of any unreimbursed Advances and Servicing Advances
with respect to the Deleted Mortgage Loans shall be deposited into the
Certificate Account by the Seller by the Distribution Account Deposit Date for
the Distribution Date in the month succeeding the calendar month during which
the related Mortgage Loan became required to be purchased or replaced
hereunder.
If the Seller repurchases a Mortgage Loan, the Purchase Price
therefor shall be deposited in the Certificate Account pursuant to Section
3.06 by the Distribution Account Deposit Date for the Distribution Date in the
month following the month during which the Seller became obligated hereunder
to repurchase or replace the Mortgage Loan and upon such deposit of the
Purchase Price, the delivery of the Opinion of Counsel required by Section
2.05 and receipt of a Request for Release in the form of Exhibit N, the
Trustee shall release the related Mortgage File held for the benefit of the
Certificateholders to such Person, and the Trustee shall execute and deliver
at such Person's direction such instruments of transfer or assignment prepared
by such Person, in each case without recourse, as shall be necessary to
transfer title from the Trustee. The obligation under this Agreement of any
Person to cure, repurchase, or replace any Mortgage Loan as to which a breach
has occurred and is continuing shall constitute the sole remedy against the
Person respecting the breach available to Certificateholders, the Depositor,
or the Trustee on their behalf.
The representations and warranties made pursuant to this Section 2.03
shall survive delivery of the respective Mortgage Files to the Trustee for the
benefit of the Certificateholders.
Section 2.04. Representations and Warranties of the Depositor as to
the Mortgage Loans.
The Depositor hereby represents and warrants to the Trustee with
respect to each Mortgage Loan as of the date hereof or such other date set
forth herein that as of the Closing Date (or, for a Subsequent Mortgage Loan,
the Subsequent Transfer Date), and following the transfer of the Mortgage
Loans to it by the Seller, the Depositor had good title to the Mortgage Loans
and the Mortgage Notes were subject to no offsets, defenses, or counterclaims.
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The Depositor hereby transfers to the Trustee all of its rights with
respect to the Mortgage Loans including the representations and warranties of
the Seller made pursuant to Section 2.03(b), together with all rights of the
Depositor to require the Seller to cure any breach thereof or to repurchase or
substitute for any affected Mortgage Loan in accordance with this Agreement.
The representations and warranties in this Section 2.04 shall survive
delivery of the Mortgage Files to the Trustee. Upon discovery by the Depositor
or the Trustee of any breach of any of the representations and warranties in
this Section that materially and adversely affects the interest of the
Certificateholders, the party discovering the breach shall give prompt written
notice to the others, the NIM Insurer, and to each Rating Agency. If the NIM
Insurer discovers such a breach, it may notify the parties to this Agreement
and each Rating Agency.
Section 2.05. Delivery of Opinion of Counsel in Connection with
Substitutions and Repurchases.
(a) Notwithstanding any contrary provision of this Agreement, no
substitution pursuant to Section 2.02 or 2.03 shall be made more than 90 days
after the Closing Date unless the Seller delivers to the Trustee an Opinion of
Counsel, which Opinion of Counsel shall not be at the expense of either the
Trustee or the Trust Fund, addressed to the Trustee, to the effect that such
substitution will not (i) result in the imposition of the tax on "prohibited
transactions" on the Trust Fund or contributions after the Startup Date, as
defined in Sections 860F(a)(2) and 860G(d) of the Code, respectively or (ii)
cause the Trust Fund to fail to qualify as a REMIC at any time that any
Certificates are outstanding.
(b) Upon discovery by the Depositor, the Seller, the Master Servicer,
or the Trustee that any Mortgage Loan does not constitute a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code, the party
discovering such fact shall promptly (and in any event within five Business
Days of discovery) give written notice thereof to the other parties and the
NIM Insurer. If the NIM Insurer discovers such facts, it may notify the
parties to this Agreement. In connection therewith, the Trustee shall require
the Seller, at the Seller's option, to either (i) substitute, if the
conditions in Section 2.03(c) with respect to substitutions are satisfied, a
Substitute Mortgage Loan for the affected Mortgage Loan, or (ii) repurchase
the affected Mortgage Loan within 90 days of such discovery in the same manner
as it would a Mortgage Loan for a breach of representation or warranty made
pursuant to Section 2.03. The Trustee shall reconvey to the Seller the
Mortgage Loan to be released pursuant hereto in the same manner, and on the
same terms, as it would a Mortgage Loan repurchased for breach of a
representation or warranty contained in Section 2.03.
Section 2.06. Execution and Delivery of Certificates.
The Trustee acknowledges the transfer and assignment to it of the
Trust Fund and, concurrently with the transfer and assignment, has executed
and delivered to or upon the
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order of the Depositor, the Certificates in authorized denominations
evidencing directly or indirectly the entire ownership of the Trust Fund. The
Trustee agrees to hold the Trust Fund and exercise the rights referred to
above for the benefit of all present and future Holders of the Certificates.
Section 2.07. REMIC Matters.
The Preliminary Statement sets forth the designations and "latest
possible maturity date" for federal income tax purposes of all interests
created hereby. The "Startup Day" for purposes of the REMIC Provisions shall
be the Closing Date.
Section 2.08. Covenants of the Master Servicer.
The Master Servicer hereby covenants to the Depositor and the Trustee
as follows:
(a) the Master Servicer shall comply in the performance of its
obligations under this Agreement with all reasonable rules and requirements of
the insurer under each Required Insurance Policy; and
(b) no written information, certificate of an officer, statement
furnished in writing or written report delivered to the Depositor, any
affiliate of the Depositor, the NIM Insurer, or the Trustee and prepared by
the Master Servicer pursuant to this Agreement will contain any untrue
statement of a material fact or omit to state a material fact necessary to
make such information, certificate, statement, or report not misleading.
Section 2.09. Subsequent Transfers.
(a) Upon five Business Days prior written notice to the Trustee, the
Depositor, the Seller, and the Trustee shall complete, execute, and deliver a
Subsequent Transfer Agreement, and deliver a copy of it to the NIM Insurer.
Subject to the satisfaction of the conditions in Article II and paragraph (b)
below and pursuant to the related Subsequent Transfer Agreement, in
consideration of the Trustee's delivery on each Subsequent Transfer Date to
the order of the Seller of all or a portion of the balance of funds in the
Pre-Funding Account (net of investment earnings), the Seller shall on each
Subsequent Transfer Date transfer to the Depositor, without recourse, all the
interest of the Seller in each Subsequent Mortgage Loan listed on the Mortgage
Loan Schedule delivered by the Seller on the Subsequent Transfer Date,
including all interest and principal received or receivable by the Seller on
or with respect to each Subsequent Mortgage Loan after the related Cut-off
Date and all interest and principal payments on each Subsequent Mortgage Loan
received by the related Cut-off Date in respect of installments of interest
and principal due thereafter, but not including payments of principal and
interest due and payable on each Subsequent Mortgage Loan by the related
Cut-off Date, and the Depositor shall simultaneously transfer to the Trustee
for the benefit of the Certificateholders, without recourse, all the interest
of the Depositor in each Subsequent Mortgage Loan listed on the Mortgage Loan
Schedule delivered by the Seller on the Subsequent Transfer Date, including
all interest and principal
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received or receivable by the Depositor on or with respect to each Subsequent
Mortgage Loan after the related Cut-off Date and all interest and principal
payments on each Subsequent Mortgage Loan received before the related Cut-off
Date in respect of installments of interest and principal due thereafter, but
not including payments of principal and interest due and payable on each
Subsequent Mortgage Loan by the related Cut-off Date.
(b) If the assignment and transfer of the Subsequent Mortgage Loans
and the other property specified in this Section 2.09 from the Seller to the
Depositor pursuant to this Agreement is held or deemed not to be a sale or is
held or deemed to be a pledge of security for a loan, the Seller intends that
the rights and obligations of the parties shall be established pursuant to
this Agreement and that, in such event, (i) the Seller shall be deemed to have
granted and does hereby grant to the Depositor as of each Subsequent Transfer
Date a perfected, first priority security interest in the entire interest of
the Seller in the related Subsequent Mortgage Loans and all other property
conveyed to the Depositor pursuant to this Section 2.09 and all proceeds
thereof, and (ii) this Agreement shall constitute a security agreement under
applicable law.
If the assignment and transfer of the Subsequent Mortgage Loans and
the other property specified in this Section 2.09 from the Depositor to the
Trustee pursuant to this Agreement is held or deemed not to be a sale or is
held or deemed to be a pledge of security for a loan, the Depositor intends
that the rights and obligations of the parties shall be established pursuant
to this Agreement and that, in such event, (i) the Depositor shall be deemed
to have granted and does hereby grant to the Trustee as of each Subsequent
Transfer Date a perfected, first priority security interest in the entire
interest of the Depositor in the related Subsequent Mortgage Loans and all
other property conveyed to the Trust Fund pursuant to this Section 2.09 and
all proceeds thereof, and (ii) this Agreement shall constitute a security
agreement under applicable law.
(c) The amount released from the Pre-Funding Account by the Trustee
pursuant to this Section 2.09 shall be the aggregate Cut-off Date Principal
Balance of the Subsequent Mortgage Loans.
(d) The Trustee shall contribute from the Pre-Funding Account funds
in an amount equal to the aggregate Cut-off Date Principal Balance of the
Subsequent Mortgage Loans so transferred to the Trust Fund to purchase the
Subsequent Mortgage Loans on behalf of the Trust Fund, along with the other
property and rights related thereto described in Section 2.09(a) only upon the
satisfaction of each of the following conditions:
(i) the Trustee will be provided Opinions of Counsel addressed
to the Rating Agencies with respect to the sale of the Subsequent
Mortgage Loans conveyed on the Subsequent Transfer Date (the
opinions being substantially similar to the opinions delivered on
the Closing Date to the Rating Agencies with respect to the sale of
the Initial Mortgage Loans on the Closing Date);
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(ii) the execution and delivery of the Subsequent Transfer
Agreement or conveyance of the related Subsequent Mortgage Loans
does not result in a reduction or withdrawal of the any ratings
assigned to the Certificates by the Ratings Agencies;
(iii) the Depositor shall deliver to the Trustee an Officer's
Certificate confirming the satisfaction of each of the conditions in
Article II and this Section 2.09(d) required to be satisfied by the
Subsequent Transfer Date;
(iv) each Subsequent Mortgage Loan conveyed on the Subsequent
Transfer Date satisfies the representations and warranties
applicable to it under this Agreement;
(v) the Subsequent Mortgage Loans conveyed on the Subsequent
Transfer Date were selected in a manner reasonably believed not to
be adverse to the interests of the Certificateholders;
(vi) no Subsequent Mortgage Loan conveyed on the Subsequent
Transfer Date was 30 or more days delinquent;
(vii) each Subsequent Mortgage Loan conveyed on the Subsequent
Transfer Date that is an Adjustable Rate Mortgage Loan is secured by
a first lien on the related Mortgaged Property;
(viii) following the conveyance of the Subsequent Mortgage
Loans on the Subsequent Transfer Date to the related Loan Group, the
characteristics of the Loan Group listed below will not vary by more
than the permitted variance listed below for each characteristic
with respect to the Initial Mortgage Loans as set forth on the
Mortgage Loan Schedule delivered on the Closing Date; provided that
for the purpose of making the calculations, the characteristics for
each Mortgage Loan made will be taken as of the related Cut-off Date
for the Mortgage Loan:
Loan Group 1: Variation
Loan Weighted Average Coupon:.......................... -0.01%
Weighted Average Maturity.............................. +/-1 month
Weighted Average Combined Loan-to-Value Ratio:......... +0.61%
Weighted Average FICO Score............................ -5points
Balloon Loans:......................................... +0.01%
Maximum Principal Balance.............................. +2.00%
State Concentration:................................... +1.01%
Zip Code Concentration:................................ +2.00%
Non-Owner Occupied:.................................... +0.71%
Second Liens:.......................................... +0.11%
Manufactured Housing:.................................. +2.27%
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Loan Group 2: Variation
Loan Weighted Average Coupon:.......................... - 0.01%
Weighted Average Maturity.............................. +/- 1 month
Weighted Average Combined Loan-to-Value Ratio:......... + 0.34%
Weighted Average FICO Score............................ -5 points
Performance Loans:..................................... + 0.00%
Maximum Principal Balance.............................. + $0.00
State Concentration:................................... + 1.00%
Zip Code Concentration:................................ + 2.00%
Non-Owner Occupied:.................................... + 0.24%
First Liens:........................................... + 0.00%
Manufactured Housing:.................................. + 0.02%
(ix) neither the Seller nor the Depositor is insolvent and
neither the Seller nor the Depositor will be rendered insolvent by
the conveyance of Subsequent Mortgage Loans on the Subsequent
Transfer Date;
(x) delivery of a letter or letters addressed to the Trustee
from an independent accountant retained by the Depositor confirming
that the characteristics of each Loan Group, following the
acquisition of the related Subsequent Mortgage Loans, conform to the
characteristics identified in this Section 2.09(d);
(xi) delivery to the Trustee of an Opinion of Counsel, which
Opinion of Counsel shall not be at the expense of either the Trustee
or the Trust Fund, addressed to the Trustee, to the effect that the
purchase of Subsequent Mortgage Loans will not (i) result in the
imposition of the tax on "prohibited transactions" on the Trust Fund
or contributions after the Startup Date, as defined in Sections
860F(a)(2) and 860G(d) of the Code, respectively or (ii) cause the
Trust Fund to fail to qualify as a REMIC at any time that any
Certificates are outstanding;
(xii) delivery to the Trustee of the Mortgage File for each
Subsequent Mortgage Loan to be transferred pursuant to the related
Subsequent Transfer Agreement; and
(xiii) the NIM Insurer shall have consented to the transfer of
the Subsequent Mortgage Loans, which consent shall not be
unreasonably withheld.
The Trustee shall not be required to investigate or otherwise verify
compliance with these conditions, except for its own receipt of documents
specified above, and shall be entitled to rely on the required Officer's
Certificate.
(e) In connection with each Subsequent Transfer Date and on the
related Distribution Date, the Seller shall determine (i) the amount and
correct dispositions of the
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funds distributed from the Capitalized Interest Account and the Pre-Funding
Account and (ii) any other necessary matters in connection with the
administration of the Capitalized Interest Account and the Pre-Funding
Account. If the Trustee releases any amounts from a Pre-Funding Account or
from the Capitalized Interest Account because of the Seller's calculation
error, the Trustee shall not be liable therefor, and the Seller shall
immediately repay the amounts to the Trustee.
Section 2.10. Mandatory Prepayment.
Any Unused Pre-Funding Amount shall be distributed to Holders of the
Certificates in accordance with Section 4.02 on the Distribution Date
following the end of the Pre-Funding Period.
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ARTICLE THREE
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01. Master Servicer to Service Mortgage Loans.
For and on behalf of the Certificateholders, the Master Servicer
shall service and administer the Mortgage Loans in accordance with this
Agreement and the Servicing Standard.
The Master Servicer shall not make or permit any modification,
waiver, or amendment of any term of any Mortgage Loan that would cause the
Trust Fund to fail to qualify as a REMIC or result in the imposition of any
tax under Section 860F(a) or Section 860G(d) of the Code.
Without limiting the generality of the foregoing, the Master
Servicer, in its own name or in the name of any Servicer or the Depositor and
the Trustee, is hereby authorized and empowered by the Depositor and the
Trustee, when the Master Servicer or the Servicer, as the case may be,
believes it appropriate in its reasonable judgment, to execute and deliver, on
behalf of the Trustee, the Depositor, the Certificateholders, or any of them,
any instruments of satisfaction or cancellation, or of partial or full release
or discharge, and all other comparable instruments, with respect to the
Mortgage Loans, and with respect to the Mortgaged Properties held for the
benefit of the Certificateholders. The Master Servicer shall prepare and
deliver to the Depositor or the Trustee any documents requiring execution and
delivery by either or both of them appropriate to enable the Master Servicer
to service and administer the Mortgage Loans to the extent that the Master
Servicer is not permitted to execute and deliver such documents pursuant to
the preceding sentence. Upon receipt of the documents, the Depositor or the
Trustee shall execute the documents and deliver them to the Master Servicer.
In accordance with and to the extent of the Servicing Standard, the
Master Servicer shall advance funds necessary to effect the payment of taxes
and assessments on the Mortgaged Properties, which advances shall be
reimbursable in the first instance from related collections from the
Mortgagors pursuant to Section 3.07, and further as provided in Section 3.09.
The costs incurred by the Master Servicer in effecting the timely payments of
taxes and assessments on the Mortgaged Properties and related insurance
premiums shall not, for the purpose of calculating monthly distributions to
the Certificateholders, be added to the Stated Principal Balances of the
related Mortgage Loans, notwithstanding that the Mortgage Loans so permit.
Section 3.02. Subservicing; Enforcement of the Obligations of
Subservicers.
(a) The Master Servicer may arrange for the subservicing of any
Mortgage Loan by a subservicer (a "Subservicer") pursuant to a subservicing
agreement reasonably acceptable to the NIM Insurer. The Master Servicer may
not enter into any subservicing agreement if as a result
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any Class of the Certificates would be downgraded or have their rating
withdrawn by any Rating Agency. The subservicing arrangement and the related
subservicing agreement must provide for the servicing of the Mortgage Loans in
a manner consistent with the servicing arrangements contemplated hereunder.
Unless the context otherwise requires, references in this Agreement to actions
taken or to be taken by the Master Servicer in servicing the Mortgage Loans
include actions taken or to be taken by a Subservicer on behalf of the Master
Servicer. Notwithstanding anything in any subservicing agreement or this
Agreement relating to agreements or arrangements between the Master Servicer
and a Subservicer or references to actions taken through a Subservicer or
otherwise, the Master Servicer shall remain obligated and liable to the
Trustee and Certificateholders for the servicing and administration of the
Mortgage Loans in accordance with this Agreement without diminution of its
obligation or liability by virtue of the subservicing agreements or
arrangements or by virtue of indemnification from the Subservicer and to the
same extent and under the same terms as if the Master Servicer alone were
servicing and administering the Mortgage Loans. All actions of each
Subservicer performed pursuant to the related subservicing agreement shall be
performed as agent of the Master Servicer with the same effect as if performed
directly by the Master Servicer. The Master Servicer, with the consent of the
NIM Insurer, may terminate any subservicing agreement and the rights and
obligations of any Subservicer pursuant to any subservicing agreement in
accordance with the terms of the subservicing agreement.
(b) For purposes of this Agreement, the Master Servicer shall be
deemed to have received any collections, recoveries, or payments with respect
to the Mortgage Loans that are received by the Subservicer regardless of
whether the payments are remitted by the Subservicer to the Master Servicer.
Section 3.03. [Reserved].
Section 3.04. No Contractual Relationship Between Subservicers and
the Trustee.
Any subservicing arrangement that may be entered into and any other
transactions or services relating to the Mortgage Loans involving a
Subservicer in its capacity as such shall be deemed to be solely between the
Subservicer and the Master Servicer alone, and the Trustee, the NIM Insurer,
and Certificateholders shall not be deemed parties thereto and shall have no
claims, rights, obligations, duties, or liabilities with respect to the
Subservicer in its capacity as such except as stated in Section 3.05.
Section 3.05. Trustee to Act as Master Servicer.
If the Master Servicer for any reason is no longer the Master
Servicer hereunder (including because of an Event of Default), the Trustee or
its successor shall thereupon assume all of the rights and obligations of the
Master Servicer hereunder arising thereafter (except that the Trustee shall
not be
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(i) liable for losses of the Master Servicer pursuant to Section 3.10
or any acts or omissions of the predecessor Master Servicer hereunder),
(ii) obligated to make Advances if it is prohibited from doing so by
applicable law,
(iii) obligated to effectuate repurchases or substitutions of
Mortgage Loans hereunder, including repurchases or substitutions pursuant to
Section 2.02 or 2.03,
(iv) responsible for expenses of the Master Servicer pursuant to
Section 2.03, or
(v) deemed to have made any representations and warranties of the
Master Servicer hereunder. Any assumption shall be subject to Section 7.02.
Every subservicing agreement entered into by the Master Servicer
shall contain a provision giving the successor Master Servicer the option to
terminate the agreement if a successor Master Servicer is appointed.
If the Master Servicer is no longer the Master Servicer for any
reason (including because of any Event of Default), the Trustee (or any other
successor Master Servicer) may, at its option, succeed to any rights and
obligations of the Master Servicer under any subservicing agreement in
accordance with its terms. The Trustee (or any other successor Master
Servicer) shall not incur any liability or have any obligations in its
capacity as successor Master Servicer under a subservicing agreement arising
before the date of succession unless it expressly elects to succeed to the
rights and obligations of the Master Servicer thereunder; and the Master
Servicer shall not thereby be relieved of any liability or obligations under
the subservicing agreement arising before the date of succession.
The Master Servicer shall, upon request of the Trustee, but at the
expense of the Master Servicer, deliver to the assuming party all documents
and records relating to each subservicing agreement and the Mortgage Loans
then being serviced thereunder and an accounting of amounts collected held by
it and otherwise use its best efforts to effect the orderly and efficient
transfer of the subservicing agreement to the assuming party.
Notwithstanding anything else in this Agreement to the contrary, in
no event shall the Trustee be liable for any servicing fee or for any
differential in the amount of the servicing fee paid under this Agreement and
the amount necessary to induce any successor Master Servicer to act as
successor Master Servicer under this Agreement and the transactions provided
for in this Agreement.
Section 3.06. Collection of Mortgage Loan Payments; Servicing
Accounts; Collection Account; Certificate Account;
Distribution Account.
(a) In accordance with and to the extent of the Servicing Standard,
the Master Servicer shall make reasonable efforts in accordance with the
customary and usual standards of practice of prudent mortgage servicers to
collect all payments called for under the Mortgage Loans to the extent the
procedures are consistent with this Agreement and any related Required
Insurance Policy. Consistent with the foregoing, the Master Servicer may in
its discretion (i) waive any
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late payment charge or, subject to Section 3.20, any prepayment charge or
penalty interest in connection with the prepayment of a Mortgage Loan and (ii)
extend the due dates for payments due on a Mortgage Note for a period not
greater than 125 days. However, the Master Servicer cannot extend the maturity
of any Mortgage Loan past the date on which the final payment is due on the
latest maturing Mortgage Loan in the applicable Loan Group as of the related
Cut-off Date. In the event of any such arrangement, the Master Servicer shall
make Advances on the related Mortgage Loan in accordance with Section 4.01
during the scheduled period in accordance with the amortization schedule of
the Mortgage Loan without modification thereof because of the arrangements. In
addition, the NIM Insurer's prior written consent shall be required for any
modification, waiver, or amendment if the amendment of the aggregate number of
outstanding Mortgage Loans that have been modified, waived, and amended
exceeds 5% of the aggregate number of Initial Mortgage Loans and Subsequent
Mortgage Loans. The Master Servicer shall not be required to institute or join
in litigation with respect to collection of any payment (whether under a
Mortgage, Mortgage Note, or otherwise or against any public or governmental
authority with respect to a taking or condemnation) if it reasonably believes
that enforcing the provision of the Mortgage or other instrument pursuant to
which the payment is required is prohibited by applicable law.
(b) The Master Servicer shall establish and maintain (or, if a
Mortgage Loan is subserviced by another Person, cause the related Subservicer
to establish and maintain) one or more Servicing Accounts into which the
Master Servicer shall deposit on a daily basis within one Business Day of
receipt, the following payments and collections received by it or remitted by
any Subservicer in respect of Mortgage Loans after the related Cut-off Date
(other than in respect of principal and interest due on the Mortgage Loans by
the related Cut-off Date):
(i) all payments on account of principal on the Mortgage Loans,
including Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans, net
of the related Servicing Fee and, in cases where the Master Servicer
maintains the Servicing Account, the related Master Servicer Fee; and
(iii) all Insurance Proceeds and Liquidation Proceeds, other than
proceeds to be applied to the restoration or repair of the Mortgaged
Property or released to the Mortgagor in accordance with the Master
Servicer's normal servicing procedures.
By the Determination Date in each calendar month, the Master Servicer
shall (a) withdraw from the Servicing Account all amounts on deposit therein
pursuant to clauses (i) and (ii) above (other than amounts attributable to a
Principal Prepayment in Full) and (b) deposit such amounts in the Collection
Account. By the Business Day in each calendar month following the deposit in
the Servicing Account of amounts on deposit therein pursuant to clause (iii)
above or pursuant to any Principal Prepayment in Full, the Master Servicer
shall (a) withdraw such amounts from the Servicing Account and (b) deposit
such amounts in the Collection Account.
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(c) The Master Servicer shall establish and maintain a Collection
Account into which the Master Servicer shall deposit, as and when required by
paragraph (b) of this Section 3.06, all amounts required to be deposited into
the Collection Account pursuant to that paragraph.
(d) The Master Servicer shall establish and maintain a Certificate
Account into which the Master Servicer shall deposit on a daily basis (i)
within one Business Day of deposit in the Collection Account (in the case of
items (i) through (iii) below) and (2) within one Business Day of receipt (in
the case of all other items), except as otherwise specified herein, the
following payments and collections received by it or remitted by any
Subservicer in respect of Mortgage Loans after the related Cut-off Date (other
than in respect of principal and interest due on the Mortgage Loans by the
related Cut-off Date) and the following amounts required to be deposited
hereunder:
(i) all payments on account of principal on the Mortgage Loans,
including Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans, net
of the related Servicing Fee and the related Master Servicing Fee;
(iii) all Insurance Proceeds and Liquidation Proceeds, other than
proceeds to be applied to the restoration or repair of the Mortgaged
Property or released to the Mortgagor in accordance with the Master
Servicer's normal servicing procedures;
(iv) [Reserved];
(v) any amounts required to be deposited by the Master Servicer
pursuant to Sections 3.12 and 3.14;
(vi) all Purchase Prices from the Master Servicer or Seller and all
Substitution Adjustment Amounts;
(vii) all Advances made by the Master Servicer pursuant to Section
4.01;
(viii) any other amounts required to be deposited hereunder; and
(ix) all Prepayment Charges collected.
In addition, with respect to any Mortgage Loan that is subject to a
buydown agreement, on each Due Date for the Mortgage Loan, in addition to the
monthly payment remitted by the Mortgagor, the Master Servicer shall cause
funds to be deposited into the Certificate Account in an amount required to
cause an amount of interest to be paid with respect to the Mortgage Loan equal
to the amount of interest that has accrued on the Mortgage Loan from the
preceding Due Date at the Mortgage Rate net of the Master Servicing Fee on
that date.
The foregoing requirements for remittance by the Master Servicer
shall be exclusive. Without limiting the generality of the foregoing, payments
in the nature of late payment charges or assumption fees, if collected, need
not be remitted by the Master Servicer. If the Master Servicer remits any
amount not required to be remitted, it may at any time withdraw that
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amount from the Certificate Account, any provision herein to the contrary
notwithstanding. The withdrawal or direction may be accomplished by delivering
written notice of it to the Trustee or any other institution maintaining the
Certificate Account that describes the amounts deposited in error in the
Certificate Account. The Master Servicer shall maintain adequate records with
respect to all withdrawals made pursuant to this Section 3.06. All funds
deposited in the Certificate Account shall be held in trust for the
Certificateholders until withdrawn in accordance with Section 3.09.
(e) --
(i) The Trustee shall establish and maintain the Excess Reserve
Fund Account, on behalf of the Class X Certificateholder, to secure
its limited recourse obligation to pay to the other
Certificateholders Net WAC Cap CarryForward Amounts.
(ii) On the Closing Date, the Depositor shall deposit $10,000
into the Excess Reserve Fund Account.
(iii) On each Distribution Date, the Trustee shall deposit the
amount of any Net WAC Cap Payment for that date into the Excess
Reserve Fund Account.
(iv) The Trustee shall invest amounts held in the Excess
Reserve Fund Account only in Permitted Investments, which shall
mature not later than the Business Day next preceding the next
Distribution Date (except that if such Permitted Investment is an
obligation of the institution that maintains such account, then such
Permitted Investment shall mature not later than the next
Distribution Date) and, in each case, shall not be sold or disposed
of before its maturity. The Class X Certificateholder shall direct
the Trustee in writing with respect to investment of amounts in the
Excess Reserve Fund.
(f) --
(i) On each Distribution Date on which a Net WAC Cap
CarryForward Amount exists for any Class of Certificates, the
Trustee shall withdraw from the Excess Reserve Fund Account amounts
necessary to pay to the Class of Certificates the Net WAC Cap
CarryForward Amount. Such payments shall be allocated to those
Classes on a pro rata basis based upon the amount of Net WAC Cap
CarryForward Amount owed to each Class and shall be paid in the
priority in Section 4.02(I)(c)(ii) and 4.02(I)(c)(xi).
(ii) The Trustee shall account for the Excess Reserve Fund
Account as an outside reserve fund within the meaning of Treasury
regulation 1.860G-2(h) and not an asset of any REMIC created
pursuant to this Agreement. The owners of the Excess Reserve Fund
Account are the Class X Certificateholder. The Trustee shall treat
amounts transferred by the Upper Tier REMIC to the Excess Reserve
Fund Account as distributions to the Class X Certificateholder for
all Federal tax purposes.
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(iii) Any Net WAC Cap CarryForward Amounts paid by the Trustee
to the Certificateholders shall be accounted for by the Trustee as
amounts paid to the Holder of the Class X Certificate. In addition,
the Trustee shall account for the Certificateholders' rights to
receive payments of Net WAC Cap CarryForward Amounts as rights in a
limited recourse interest rate cap contract written by the Class X
Certificateholder in favor of the other Certificateholders.
(iv) Notwithstanding any provision contained in this Agreement,
the Trustee shall not be required to make any payments from the
Excess Reserve Fund Account except as expressly stated in this
Section 3.06(f).
(g) The Trustee shall establish and maintain the Distribution Account
on behalf of the Certificateholders. The Trustee shall, promptly upon receipt,
deposit in the Distribution Account and retain therein the following:
(i) the aggregate amount remitted by the Master Servicer to the
Trustee pursuant to Section 3.09(a);
(ii) any amount deposited by the Master Servicer pursuant to
Section 3.06(h) in connection with any losses on Permitted
Investments; and
(iii) any other amounts deposited hereunder that are required
to be deposited in the Distribution Account.
If the Master Servicer remits any amount not required to be remitted,
it may at any time direct the Trustee in writing to withdraw that amount from
the Distribution Account, any provision herein to the contrary
notwithstanding. The direction may be accomplished by delivering an Officer's
Certificate to the Trustee that describes the amounts deposited in error in
the Distribution Account. All funds deposited in the Distribution Account
shall be held by the Trustee in trust for the Certificateholders until
disbursed in accordance with this Agreement or withdrawn in accordance with
Section 3.09. In no event shall the Trustee incur liability for withdrawals
from the Distribution Account at the direction of the Master Servicer.
(h) Each institution at which the Certificate Account is maintained
shall invest the funds therein as directed in writing by the Master Servicer
in Permitted Investments, which shall mature not later than the second
Business Day preceding the related Distribution Account Deposit Date (except
that if the Permitted Investment is an obligation of the institution that
maintains the account, then the Permitted Investment shall mature not later
than the Business Day preceding the Distribution Account Deposit Date) and
shall not be sold or disposed of before its maturity. All Permitted
Investments shall be made in the name of the Trustee, for the benefit of the
Certificateholders. All income realized from any investment of funds on
deposit in the Certificate Account shall be for the benefit of the Master
Servicer as servicing compensation and shall be remitted to it monthly as
provided herein. The amount of any realized losses on Permitted Investments in
the Certificate Account shall promptly be deposited
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by the Master Servicer in the Certificate Account. The Trustee shall not be
liable for the amount of any loss incurred in respect of any investment or
lack of investment of funds held in the Certificate Account and made in
accordance with this Section 3.06.
The Trustee shall invest funds in the Capitalized Interest Account or
Pre-Funding Account as directed in writing by the Master Servicer in Permitted
Investments, which shall mature not later than the Business Day next preceding
the Distribution Date (except that if such Permitted Investment is an
obligation of the institution that maintains such account, then such Permitted
Investment shall mature not later than the Distribution Date) and, in each
case, shall not be sold or disposed of before its maturity. All such Permitted
Investments shall be made in the name of the Trustee, for the benefit of the
Certificateholders.
(i) The Trustee shall establish and maintain, on behalf of the
Certificateholders, a separate account denominated the Pre-Funding Account in
the name of the Trustee. The Pre-Funding Account shall be treated as an
"outside reserve fund" under applicable Treasury regulations and shall not be
part of any REMIC. Any investment earnings on the Pre-Funding Account shall be
treated as owned by the Seller and will be taxable to the Seller. The Trustee
shall hold the Pre-Funding Account for the purchase of Subsequent Mortgage
Loans.
The Trustee shall establish and maintain, on behalf of the
Certificateholders, a separate account denominated the Capitalized Interest
Account in the name of the Trustee if the Capitalized Interest Requirement is
greater than zero. The Capitalized Interest Account shall be treated as an
"outside reserve fund" under applicable Treasury regulations and shall not be
part of the REMIC. Any investment earnings on the Capitalized Interest Account
shall be treated as owned by the Seller and will be taxable to the Seller.
On each Subsequent Transfer Date, upon satisfaction of the conditions
in Section 2.09, the Trustee shall withdraw from the Pre-Funding Account 100%
of the aggregate of the Cut-off Date Principal Balances of the Subsequent
Mortgage Loans sold to the Trust Fund on the Subsequent Transfer Date and pay
that amount to the order of the Seller.
On the Business Day before the Distribution Date following the
Remittance Period in which the Pre-Funding Period ends, the Trustee shall (i)
withdraw the Unused Pre-Funding Amount from the Pre-Funding Account, (ii)
promptly deposit the amount in the Distribution Account, and (iii) distribute
the amount on the Distribution Date pursuant to Section 4.02.
The amount deposited in the Distribution Account pursuant to the
preceding paragraph shall be net of any investment earnings on the amounts on
deposit in the Pre-Funding Account.
On the Business Day before each Distribution Date, through the
Distribution Date following the Remittance Period in which the Pre-Funding
Period ends, the Trustee shall transfer from the Capitalized Interest Account
to the Distribution Account the Capitalized Interest Requirement and shall
distribute such amount on the Distribution Date pursuant to Section 4.02. To
the extent that a Capitalized Interest Requirement on any the Distribution
Date
III-8
exceeds the amounts on deposit in the Capitalized Interest Account, the
Trustee shall transfer to the Distribution Account, to the extent of the
shortfall in the Capitalized Interest Requirement, the investment earnings on
the amounts on deposit in the Capitalized Interest Account and Pre-Funding
Account. The remaining investment earnings on deposit in the Capitalized
Interest Account and the Pre-Funding Account shall be transferred to the
Seller.
All amounts remaining in the Capitalized Interest Account and any
investment earnings remaining in the Pre-Funding Account on the Distribution
Date following the Remittance Period in which the Pre-Funding Period ends
shall be transferred to the Seller.
(j) The Master Servicer shall notify the Trustee, the Seller, each
Rating Agency, and the Depositor of any proposed change of the location of the
Certificate Account, the Collection Account, the Excess Reserve Fund Account,
the Distribution Account, the Pre-Funding Account, or the Capitalized Interest
Account not later than 30 days and not more than 45 days before any change
thereof.
(k) Except as otherwise expressly provided in this Agreement, if any
default occurs under any Permitted Investment, the Trustee may and, subject to
Section 8.01 and 8.02(d), at the request of the NIM Insurer or the Holders of
Certificates representing more than 50% of the Voting Rights allocated to any
Class of Certificates, shall take any action appropriate to enforce payment or
performance, including the institution and prosecution of appropriate
proceedings.
Section 3.07. Collection of Taxes, Assessments, and Similar Items;
Escrow Accounts.
(a) To the extent required by the related Mortgage Note and not
violative of current law, the Master Servicer shall establish and maintain one
or more accounts (each, an "Escrow Account") and deposit and retain therein
all collections from the Mortgagors (or advances) for the payment of taxes,
assessments, hazard insurance premiums or comparable items for the account of
the Mortgagors. Nothing herein shall require the Master Servicer to compel a
Mortgagor to establish an Escrow Account in violation of applicable law.
(b) Withdrawals of amounts so collected from the Escrow Accounts may
be made only to effect timely payment of taxes, assessments, hazard insurance
premiums, condominium or PUD association dues, or comparable items, to
reimburse (without duplication) the Master Servicer out of related collections
for any payments made pursuant to Sections 3.12 (with respect to taxes and
assessments and insurance premiums) and 3.13 (with respect to hazard
insurance), to refund to any Mortgagors any sums determined to be overages, to
pay interest, if required by law or the related Mortgage or Mortgage Note, to
Mortgagors on balances in the Escrow Account or to clear and terminate the
Escrow Account at the termination of this Agreement in accordance with Section
9.01. The Escrow Accounts shall not be a part of the Trust Fund.
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(c) The Master Servicer shall advance any payments referred to in
Section 3.07(a) that are not timely paid by the Mortgagors on the date when
the tax, premium or other cost for which such payment is intended is due, but
the Master Servicer shall be required so to advance only to the extent that
such advances, in the good faith judgment of the Master Servicer, will be
recoverable by the Master Servicer out of Insurance Proceeds, Liquidation
Proceeds, or otherwise.
Section 3.08. Access to Certain Documentation and Information
Regarding the Mortgage Loans.
The Master Servicer shall afford the Depositor, the NIM Insurer, and
the Trustee reasonable access to all records and documentation regarding the
Mortgage Loans and all accounts, insurance information, and other matters
relating to this Agreement, such access being afforded without charge, but
only upon reasonable request and during normal business hours at the office
designated by the Master Servicer.
Upon reasonable advance notice in writing, the Master Servicer will
provide to each Certificateholder that is a savings and loan association,
bank, or insurance company certain reports and reasonable access to
information and documentation regarding the Mortgage Loans sufficient to
permit the Certificateholder to comply with applicable regulations of the OTS
or other regulatory authorities with respect to investment in the
Certificates. The Master Servicer shall be entitled to be reimbursed by each
such Certificateholder for actual expenses incurred by the Master Servicer in
providing the reports and access.
Section 3.09. Permitted Withdrawals from the Certificate Account, the
Distribution Account, and the Excess Reserve
Fund Account.
(a) The Master Servicer may (and, in the case of clause (ix) below,
shall) from time to time make withdrawals from the Certificate Account for the
following purposes:
(i) to pay to the Master Servicer or the related Subservicer
(to the extent not previously retained) the servicing compensation
to which it is entitled pursuant to Section 3.15, and to pay to the
Master Servicer, as additional master servicing compensation,
earnings on or investment income with respect to funds in or
credited to the Certificate Account;
(ii) to reimburse the Master Servicer for unreimbursed Advances
made by it, such right of reimbursement pursuant to this subclause
(ii) being limited to amounts received on the Mortgage Loans in
respect of which the Advance was made;
(iii) to reimburse the Master Servicer for any Nonrecoverable
Advance previously made;
(iv) to reimburse the Master Servicer for Insured Expenses from
the related Insurance Proceeds;
III-10
(v) to reimburse the Master Servicer for (a) unreimbursed
Servicing Advances, the Master Servicer's right to reimbursement
pursuant to this clause (a) with respect to any Mortgage Loan being
limited to amounts received on the Mortgage Loans that represent
late recoveries of the payments for which the advances were made
pursuant to Section 3.01 or Section 3.07 and (b) for unpaid Master
Servicing Fees as provided in Section 3.12;
(vi) to pay to the purchaser, with respect to each Mortgage
Loan or property acquired in respect thereof that has been purchased
pursuant to Section 2.02, 2.03, or 3.14, all amounts received
thereon after the date of such purchase;
(vii) to reimburse the Seller, the Master Servicer, the NIM
Insurer, or the Depositor for expenses incurred by any of them and
reimbursable pursuant to Section 6.03;
(viii) to withdraw any amount deposited in the Certificate
Account and not required to be deposited therein;
(ix) by the Distribution Account Deposit Date, to withdraw (1)
Available Funds and the Trustee Fee for the Distribution Date, to
the extent on deposit, and (2) the Prepayment Charges on deposit,
and remit such amount to the Trustee for deposit in the Distribution
Account; and
(x) to clear and terminate the Certificate Account upon
termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, to justify any withdrawal from the
Certificate Account pursuant to subclauses (i), (ii), (iv), (v), and (vi).
Before making any withdrawal from the Certificate Account pursuant to
subclause (iii), the Master Servicer shall deliver to the Trustee an Officer's
Certificate of a Servicing Officer indicating the amount of any previous
Advance determined by the Master Servicer to be a Nonrecoverable Advance and
identifying the related Mortgage Loans and their respective portions of the
Nonrecoverable Advance.
(b) The Trustee shall withdraw funds from the Distribution Account
for distributions to Certificateholders in the manner specified in this
Agreement (and to withhold from the amounts so withdrawn the amount of any
taxes that it is authorized to withhold pursuant to the last paragraph of
Section 8.11). In addition, the Trustee may from time to time make withdrawals
from the Distribution Account for the following purposes:
(i) to pay to itself the Trustee Fee for the related
Distribution Date;
(ii) to pay to the Master Servicer as additional servicing
compensation earnings on or investment income with respect to funds
in the Distribution Account;
III-11
(iii) to withdraw and return to the Master Servicer any amount
deposited in the Distribution Account and not required to be
deposited therein; and
(iv) to clear and terminate the Distribution Account upon
termination of the Agreement pursuant to Section 9.01.
(c) On each Distribution Date, the Trustee shall make withdrawals
from the Excess Reserve Fund Account for deposit in the Distribution Account
of the amount required pursuant to Section 3.06(f). On the earlier of (i) the
termination of this Agreement pursuant to Section 9.01 and (ii) the later of
(x) the Distribution Date on which all of the Certificates (other than the
Class X Certificates) are reduced to zero and (y) the December 2004
Distribution Date, any amount remaining on deposit in the Excess Reserve Fund
Account after giving effect to the requirements of the preceding sentence
shall be withdrawn by the Trustee and paid to the Class X Certificateholders.
Section 3.10. Maintenance of Hazard Insurance; Maintenance of Primary
Insurance Policies.
(a) The Master Servicer shall maintain, for each Mortgage Loan,
hazard insurance with extended coverage in an amount that is at least equal to
the lesser of
(i) the maximum insurable value of the improvements securing
the Mortgage Loan and
(ii) the greater of (y) the outstanding principal balance of
the Mortgage Loan and (z) an amount such that the proceeds of the
policy are sufficient to prevent the Mortgagor or the mortgagee from
becoming a co-insurer.
Each policy of standard hazard insurance shall contain, or have an
accompanying endorsement that contains, a standard mortgagee clause. Any
amounts collected under the policies (other than the amounts to be applied to
the restoration or repair of the related Mortgaged Property or amounts
released to the Mortgagor in accordance with the Master Servicer's normal
servicing procedures) shall be deposited in the Certificate Account. Any cost
incurred in maintaining any insurance shall not, for the purpose of
calculating monthly distributions to the Certificateholders or remittances to
the Trustee for their benefit, be added to the principal balance of the
Mortgage Loan, notwithstanding that the Mortgage Loan so permits. Such costs
shall be recoverable by the Master Servicer out of late payments by the
related Mortgagor or out of Liquidation Proceeds to the extent permitted by
Section 3.09. No earthquake or other additional insurance is to be required of
any Mortgagor or maintained on property acquired in respect of a Mortgage
other than pursuant to any applicable laws and regulations in force that
require additional insurance. If the Mortgaged Property is located at the time
of origination of the Mortgage Loan in a federally designated special flood
hazard area and the area is participating in the national flood insurance
program, the Master Servicer shall maintain flood insurance for the Mortgage
Loan. The flood insurance shall be in an amount equal to the least of (i) the
original principal
III-12
balance of the related Mortgage Loan, (ii) the replacement value of the
improvements that are part of the Mortgaged Property, and (iii) the maximum
amount of flood insurance available for the related Mortgaged Property under
the national flood insurance program.
If the Master Servicer obtains and maintains a blanket policy
insuring against hazard losses on all of the Mortgage Loans, it shall have
satisfied its obligations in the first sentence of this Section 3.10. The
policy may contain a deductible clause on terms substantially equivalent to
those commercially available and maintained by comparable servicers. If the
policy contains a deductible clause and a policy complying with the first
sentence of this Section 3.10 has not been maintained on the related Mortgaged
Property, and if a loss that would have been covered by the required policy
occurs, the Master Servicer shall deposit in the Certificate Account the
amount not otherwise payable under the blanket policy because of the
deductible clause. In connection with its activities as Master Servicer of the
Mortgage Loans, the Master Servicer agrees to present, on behalf of itself,
the Depositor, and the Trustee for the benefit of the Certificateholders and
the NIM Insurer, claims under any blanket policy.
(b) The Master Servicer shall not take any action that would result
in non-coverage under any applicable Primary Insurance Policy of any loss
that, but for the actions of the Master Servicer, would have been covered
thereunder. The Master Servicer shall not cancel or refuse to renew any
Primary Insurance Policy that is in effect at the date of the initial issuance
of the Certificates and is required to be kept in force hereunder unless the
replacement Primary Insurance Policy for the canceled or non-renewed policy is
maintained with a Qualified Insurer. The Master Servicer need not maintain any
Primary Insurance Policy if maintaining the Primary Insurance Policy is
prohibited by applicable law. The Master Servicer agrees, to the extent
permitted by applicable law, to effect the timely payment of the premiums on
each Primary Insurance Policy, and any costs not otherwise recoverable shall
be recoverable by the Master Servicer from the related liquidation proceeds.
The Master Servicer shall maintain for as long as each relevant Mortgage Loan
is outstanding the mortgage insurance associated with the Mortgage Loans
identified on the Mortgage Loan Schedule as having lender acquired mortgage
insurance, and as to any other Mortgage Loans the Master Servicer need not
maintain any Primary Insurance Policy with respect to any Mortgage Loan with a
Loan-to-Value Ratio or Combined Loan-to-Value Ratio (as applicable) less than
or equal to 80% as of any date of determination or, based on a new appraisal,
the principal balance of the Mortgage Loan represents 80% or less of the new
Appraised Value.
In connection with its activities as Master Servicer of the Mortgage
Loans, the Master Servicer agrees to present, on behalf of itself, the
Trustee, the NIM Insurer, and the Certificateholders, claims to the insurer
under any Primary Insurance Policies and, in this regard, to take any
reasonable action in accordance with the Servicing Standard necessary to
permit recovery under any Primary Insurance Policies respecting defaulted
Mortgage Loans. Any amounts collected by the Master Servicer under any Primary
Insurance Policies shall be deposited in the Certificate Account or the
Collection Account (as applicable).
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Section 3.11. Enforcement of Due-On-Sale Clauses; Assumption
Agreements.
(a) Except as otherwise provided in this Section 3.11, when any
property subject to a Mortgage has been conveyed by the Mortgagor, the Master
Servicer shall to the extent that it has knowledge of the conveyance and in
accordance with the Servicing Standard, enforce any due-on-sale clause
contained in any Mortgage Note or Mortgage, to the extent permitted under
applicable law and governmental regulations, but only to the extent that
enforcement will not adversely affect or jeopardize coverage under any
Required Insurance Policy. Notwithstanding the foregoing, the Master Servicer
is not required to exercise these rights with respect to a Mortgage Loan if
the Person to whom the related Mortgaged Property has been conveyed or is
proposed to be conveyed satisfies the conditions contained in the Mortgage
Note and Mortgage related thereto and the consent of the mortgagee under the
Mortgage Note or Mortgage is not otherwise so required under the Mortgage Note
or Mortgage as a condition to the transfer.
If (i) the Master Servicer is prohibited by law from enforcing any
due-on-sale clause, (ii) coverage under any Required Insurance Policy would be
adversely affected, (iii) the Mortgage Note does not include a due-on-sale
clause, or (iv) nonenforcement is otherwise permitted hereunder, the Master
Servicer is authorized, subject to Section 3.11(b), to take or enter into an
assumption and modification agreement from or with the person to whom the
property has been or is about to be conveyed, pursuant to which the person
becomes liable under the Mortgage Note and, unless prohibited by applicable
state law, the Mortgagor remains liable thereon. The Mortgage Loan must
continue to be covered (if so covered before the Master Servicer enters into
the agreement) by the applicable Required Insurance Policies.
The Master Servicer, subject to Section 3.11(b), is also authorized
with the prior approval of the insurers under any Required Insurance Policies
to enter into a substitution of liability agreement with the Person, pursuant
to which the original Mortgagor is released from liability and the Person is
substituted as Mortgagor and becomes liable under the Mortgage Note.
Notwithstanding the foregoing, the Master Servicer shall not be deemed to be
in default under this Section 3.11 because of any transfer or assumption that
the Master Servicer reasonably believes it is restricted by law from
preventing, for any reason whatsoever.
(b) Subject to the Master Servicer's duty to enforce any due-on-sale
clause to the extent provided in Section 3.11(a), in any case in which a
Mortgaged Property has been conveyed to a Person by a Mortgagor, and the
Person is to enter into an assumption agreement or modification agreement or
supplement to the Mortgage Note or Mortgage that requires the signature of the
Trustee, or if an instrument of release signed by the Trustee is required
releasing the Mortgagor from liability on the Mortgage Loan, the Master
Servicer shall prepare and deliver to the Trustee for signature and shall
direct the Trustee, in writing, to execute the assumption agreement with the
Person to whom the Mortgaged Property is to be conveyed, and the modification
agreement or supplement to the Mortgage Note or Mortgage or other instruments
appropriate to carry out the terms of the Mortgage Note or Mortgage or
otherwise to comply
III-14
with any applicable laws regarding assumptions or the transfer of the
Mortgaged Property to the Person. In connection with any such assumption, no
material term of the Mortgage Note may be changed.
In addition, the substitute Mortgagor and the Mortgaged Property must
be acceptable to the Master Servicer in accordance with its underwriting
standards as then in effect. Together with each substitution, assumption, or
other agreement or instrument delivered to the Trustee for execution by it,
the Master Servicer shall deliver an Officer's Certificate signed by a
Servicing Officer stating that the requirements of this subsection have been
met in connection therewith. The Master Servicer shall notify the Trustee that
any substitution or assumption agreement has been completed by forwarding to
the Trustee the original of the substitution or assumption agreement, which in
the case of the original shall be added to the related Mortgage File and
shall, for all purposes, be considered a part of the Mortgage File to the same
extent as all other documents and instruments constituting a part thereof. The
Master Servicer will retain any fee collected by it for entering into an
assumption or substitution of liability agreement as additional master
servicing compensation.
Section 3.12. Realization Upon Defaulted Mortgage Loans; Repurchase
of Certain Mortgage Loans.
(a) The Master Servicer shall use reasonable efforts in accordance
with the Servicing Standard to foreclose on or otherwise comparably convert
the ownership of Mortgaged Properties in respect of which the related Mortgage
Loans as come into and continues in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments. In connection
with the foreclosure or other conversion, the Master Servicer shall follow the
Servicing Standard and shall follow the requirements of the insurer under any
Required Insurance Policy.
Notwithstanding the foregoing, the Master Servicer shall not be
required to expend its own funds in connection with any foreclosure or towards
the restoration of any property unless it determines (i) that the restoration
or foreclosure will increase the proceeds of liquidation of the Mortgage Loan
after reimbursement to itself of restoration expenses and (ii) that
restoration expenses will be recoverable to it through Liquidation Proceeds
(respecting which it shall have priority for purposes of withdrawals from the
Certificate Account). The Master Servicer shall be responsible for all other
costs and expenses incurred by it in any foreclosure proceedings. The Master
Servicer is entitled to reimbursement thereof from the liquidation proceeds
with respect to the related Mortgaged Property, as provided in the definition
of Liquidation Proceeds. If the Master Servicer has knowledge that a Mortgaged
Property that the Master Servicer is contemplating acquiring in foreclosure or
by deed in lieu of foreclosure is located within one mile of any site listed
in the Expenditure Plan for the Hazardous Substance Clean Up Bond Act of 1984
or other site with environmental or hazardous waste risks known to the Master
Servicer, the Master Servicer will, before acquiring the Mortgaged Property,
consider the risks and only take action in accordance with its established
environmental review procedures. The Master
III-15
Servicer shall not foreclose any Mortgaged Property or accept a deed in lieu
of foreclosure for any Mortgaged Property without the consent of the NIM
Insurer if the Master Servicer has actual knowledge or notice that the
Mortgaged Property contains material hazardous wastes or substances subject to
the Hazardous Substance Clean Up Bond Act of 1984.
With respect to any REO Property, the deed or certificate of sale
shall be taken in the name of the Trustee for the benefit of the
Certificateholders, or its nominee, on behalf of the Certificateholders. The
Trustee's name shall be placed on the title to the REO Property solely as the
Trustee hereunder and not in its individual capacity. The Master Servicer
shall ensure that the title to the REO Property references the Pooling and
Servicing Agreement and the Trustee's capacity hereunder. Pursuant to its
efforts to sell the REO Property, the Master Servicer shall either itself or
through an agent selected by the Master Servicer protect and conserve the REO
Property in accordance with the Servicing Standard as the Master Servicer
deems to be in the best interest of the Certificateholders for the period
before the sale of the REO Property.
The Master Servicer shall perform the tax reporting and withholding
required by Sections 1445 and 6050J of the Code with respect to foreclosures
and abandonments, the tax reporting required by Section 6050H of the Code with
respect to the receipt of mortgage interest from individuals and, if required
by Section 6050P of the Code with respect to the cancellation of indebtedness
by certain financial entities, by preparing any required tax and information
returns, in the form required, and delivering the same to the Trustee for
filing.
If the Trust Fund acquires any Mortgaged Property as aforesaid or
otherwise in connection with a default or imminent default on a Mortgage Loan,
the REO Property shall only be held temporarily, shall be actively marketed
for sale, and the Master 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 from
the Mortgaged Property under Section 860G(c) of the Code or otherwise, unless
the Master Servicer has agreed to indemnify the Trust Fund with respect to the
imposition of any such taxes.
The decision of the Master Servicer to foreclose on a defaulted
Mortgage Loan shall be subject to a determination by the Master Servicer that
the proceeds of the foreclosure would exceed the costs of bringing a
foreclosure proceeding. The proceeds from the maintenance of any REO
Properties, net of reimbursement to the Master Servicer for expenses incurred
(including any property or other taxes) in connection with management of the
REO Properties and net of unreimbursed Servicing Fees, Advances, and Servicing
Advances, shall be applied to the payment of principal of and interest on the
related defaulted Mortgage Loans (with interest
III-16
accruing as though the Mortgage Loans were still current and adjustments, if
applicable, to the Mortgage Rate were being made in accordance with the
Mortgage Note) and all such income shall be deemed, for all purposes in this
Agreement, to be payments on account of principal and interest on the related
Mortgage Notes and shall be deposited into the Certificate Account. To the
extent the proceeds received during any calendar month exceeds the amount
attributable to amortizing principal and accrued interest at the related
Mortgage Rate on the related Mortgage Loan for the calendar month, the excess
shall be considered to be a partial prepayment of principal of the related
Mortgage Loan.
The proceeds from any liquidation of a Mortgage Loan, as well as any
proceeds from an REO Property, will be applied in the following order of
priority:
first, to reimburse the Master Servicer for any related
unreimbursed Servicing Advances or Master Servicing Fees, as
applicable;
second, to reimburse the Master Servicer, as applicable, and to
reimburse the Certificate Account for any Nonrecoverable Advances
(or portions thereof) that were previously withdrawn by the Master
Servicer pursuant to Section 3.09(a)(ii) that related to the
Mortgage Loan;
third, to accrued and unpaid interest (to the extent no Advance
has been made for the amount or the Advance has been reimbursed) on
the Mortgage Loan or related REO Property, at the Adjusted Net
Mortgage Rate through the Remittance Period preceding the
Distribution Date on which the amounts are required to be
distributed; and
fourth, as a recovery of principal of the Mortgage Loan. The
Master Servicer will retain any Excess Proceeds from the liquidation
of a Liquidated Mortgage Loan as additional servicing compensation
pursuant to Section 3.15.
(b) The Master Servicer, in its sole discretion, may purchase for its
own account from the Trust Fund any Mortgage Loan that is 90 days or more
delinquent at a price equal to the Purchase Price. The Master Servicer may
only exercise this right on or before the next to the last day of the calendar
month (the "Eligible Repurchase Month") in which the Mortgage Loan became 90
days delinquent. Any delinquent Mortgage Loan that becomes current but
thereafter becomes delinquent may be purchased by the Master Servicer pursuant
to this Section in any ensuing Eligible Repurchase Month. The Purchase Price
for any Mortgage Loan purchased hereunder shall be deposited in the
Certificate Account and the Trustee, upon receipt of a certificate from the
Master Servicer in the form of Exhibit N, shall release to the purchaser of
the Mortgage Loan the related Mortgage File and shall execute and deliver such
instruments of transfer or assignment prepared by the purchaser of the
Mortgage Loan, in each case without recourse, as shall be necessary to vest in
the purchaser of the Mortgage Loan any Mortgage Loan released pursuant hereto
and the purchaser of the Mortgage Loan shall succeed to all the Trustee's
interest in the Mortgage Loan and all security and documents related thereto.
Such
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assignment shall be an assignment outright and not for security. The purchaser
of the Mortgage Loan shall thereupon own the Mortgage Loan, and all security
and documents, free of any further obligation to the Trustee or the
Certificateholders with respect thereto.
If the Master Servicer fails to purchase a delinquent Mortgage Loan
that it was permitted to purchase pursuant to the preceding paragraph, the NIM
Insurer may, at its option, purchase the Mortgage Loan at any time during the
calendar month following the Eligible Repurchase Month. The NIM Insurer shall
not use any procedure in selecting Mortgage Loans to be repurchased that is
materially adverse to the interests of the Certificateholders. The NIM Insurer
shall purchase the delinquent Mortgage Loan at a price equal to its Purchase
Price. Any purchase of a Mortgage Loan pursuant to this Section 3.12(b) shall
be accomplished by remittance to the Master Servicer for deposit in the
Collection Account of the Purchase Price. The Trustee shall immediately
effectuate the conveyance of the delinquent Mortgage Loan to the NIM Insurer
to the extent necessary, including the prompt delivery of all documentation to
the NIM Insurer.
(c) The Master Servicer may agree to a modification of any Mortgage
Loan (the "Relevant Mortgage Loan") at the request of the related Mortgagor if
the modification is in lieu of a refinancing and the Mortgage Rate on the
Relevant Mortgage Loan, as modified, is approximately a prevailing market rate
for newly-originated mortgage loans having similar terms and (ii) the Master
Servicer purchases the Relevant Mortgage Loan from the Trust Fund as described
below. Effective immediately after the modification, and, in any event, on the
same Business Day on which the modification occurs, all interest of the
Trustee in the Modified Mortgage Loan shall automatically be deemed
transferred and assigned to the Master Servicer and all benefits and burdens
of ownership thereof, including the right to accrued interest thereon from the
date of modification and the risk of default thereon, shall pass to the Master
Servicer. The Master Servicer shall promptly deliver to the Trustee a
certification of a Servicing Officer to the effect that all requirements of
the first paragraph of this subsection (c) have been satisfied with respect to
the Modified Mortgage Loan.
The Master Servicer shall deposit the Purchase Price for any Modified
Mortgage Loan in the Certificate Account pursuant to Section 3.06 within one
Business Day after the purchase of the Modified Mortgage Loan. Upon receipt by
the Trustee of written notification of any such deposit signed by a Servicing
Officer, the Trustee shall release to the Master Servicer the related Mortgage
File and shall execute and deliver such instruments of transfer or assignment,
in each case without recourse, as shall be necessary to vest in the Master
Servicer any Modified Mortgage Loan previously transferred and assigned
pursuant hereto.
The Master Servicer covenants and agrees to indemnify the Trust Fund
against any liability for any "prohibited transaction" taxes and any related
interest, additions, and penalties imposed on the Trust Fund established
hereunder as a result of any modification of a Mortgage Loan effected pursuant
to this subsection (c), any holding of a Modified Mortgage Loan by the Trust
Fund or any purchase of a Modified Mortgage Loan by the Master Servicer (but
such
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obligation shall not prevent the Master Servicer or any other appropriate
Person from contesting any such tax in appropriate proceedings and shall not
prevent the Master Servicer from withholding payment of such tax, if permitted
by law, pending the outcome of such proceedings). The Master Servicer shall
have no right of reimbursement for any amount paid pursuant to the foregoing
indemnification, except to the extent that the amount of any tax, interest,
and penalties, together with interest thereon, is refunded to the Trust Fund
or the Master Servicer.
Section 3.13. Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the
Master Servicer of a notification that payment in full will be escrowed in a
manner customary for such purposes, the Master Servicer will immediately
notify the Trustee by delivering a "Request for Release" substantially in the
form of Exhibit N. Upon receipt of the request, the Trustee shall promptly
release the related Mortgage File to the Master Servicer, and the Trustee
shall at the Master Servicer's direction execute and deliver to the Master
Servicer the request for reconveyance, deed of reconveyance, or release or
satisfaction of mortgage or such instrument releasing the lien of the Mortgage
in each case provided by the Master Servicer, together with the Mortgage Note
with written evidence of cancellation thereon. Expenses incurred in connection
with any instrument of satisfaction or deed of reconveyance shall be
chargeable to the related Mortgagor.
From time to time and as shall be appropriate for the servicing or
foreclosure of any Mortgage Loan, including for such purpose collection under
any policy of flood insurance, any fidelity bond or errors or omissions
policy, or for the purposes of effecting a partial release of any Mortgaged
Property from the lien of the Mortgage or the making of any corrections to the
Mortgage Note or the Mortgage or any of the other documents included in the
Mortgage File, the Trustee shall, upon delivery to the Trustee of a Request
for Release in the form of Exhibit M signed by a Servicing Officer, release
the Mortgage File to the Master Servicer or its designee. Subject to the
further limitations stated below, the Master Servicer shall cause the Mortgage
File or documents so released to be returned to the Trustee when the need
therefor by the Master Servicer no longer exists, unless the Mortgage Loan is
liquidated and the proceeds thereof are deposited in the Certificate Account,
in which case the Master Servicer shall deliver to the Trustee a Request for
Release in the form of Exhibit N, signed by a Servicing Officer.
If the Master Servicer at any time seeks to initiate a foreclosure
proceeding in respect of any Mortgaged Property as authorized by this
Agreement, the Master Servicer shall deliver to the Trustee, for signature, as
appropriate, any court pleadings, requests for trustee's sale, or other
documents necessary to effectuate such foreclosure or any legal action brought
to obtain judgment against the Mortgagor on the Mortgage Note or the Mortgage
or to obtain a deficiency judgment or to enforce any other remedies or rights
provided by the Mortgage Note or the Mortgage or otherwise available at law or
in equity.
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Section 3.14. Documents, Records, and Funds in Possession of the
Master Servicer to be Held for the Trustee.
The Master Servicer shall account fully to the Trustee and the NIM
Insurer for any funds it receives or otherwise collects as Liquidation
Proceeds or Insurance Proceeds in respect of any Mortgage Loan. All Mortgage
Files and funds collected or held by, or under the control of, the Master
Servicer in respect of any Mortgage Loans, whether from the collection of
principal and interest payments or from Liquidation Proceeds, including any
funds on deposit in the Certificate Account, shall be held by the Master
Servicer for and on behalf of the Trustee and shall be and remain the sole and
exclusive property of the Trustee, subject to the applicable provisions of
this Agreement. The Master Servicer also agrees that it shall not create,
incur or subject any Mortgage File or any funds that are deposited in the
Certificate Account, the Collection Account, Distribution Account, or any
Escrow Account, or any funds that otherwise are or may become due or payable
to the Trustee for the benefit of the Certificateholders, to any claim, lien,
security interest, judgment, levy, writ of attachment, or other encumbrance,
or assert by legal action or otherwise any claim or right of setoff against
any Mortgage File or any funds collected on, or in connection with, a Mortgage
Loan, except, however, that the Master Servicer shall be entitled to set off
against and deduct from any such funds any amounts that are properly due and
payable to the Master Servicer under this Agreement.
Section 3.15. Servicing Compensation.
As compensation for its activities hereunder, the Master Servicer may
retain or withdraw from the Servicing Account, the Collection Account, or the
Certificate Account the Master Servicing Fee for each Mortgage Loan for the
related Distribution Date. Notwithstanding the foregoing, the aggregate Master
Servicing Fee and Servicing Fee payable to the Master Servicer shall be
reduced by the lesser of the aggregate of the Prepayment Interest Shortfalls
with respect to the Distribution Date and the aggregate Compensating Interest
for the Distribution Date.
The Master Servicer may retain or withdraw from the Servicing
Account, the Collection Account, or the Certificate Account the Servicing Fee
for each Mortgage Loan for the related Distribution Date. If the Master
Servicer directly services a Mortgage Loan, the Master Servicer may retain the
Servicing Fee for its own account as compensation for performing services. If
a Subservicer directly services a Mortgage Loan, unless the Subservicer
retains the Servicing Fee, the Master Servicer shall remit the Servicing Fee
to the related Subservicer as compensation for performing services.
Additional master servicing compensation in the form of Excess
Proceeds, assumption fees, late payment charges and all income and gain net of
any losses realized from Permitted Investments shall be retained by the Master
Servicer to the extent not required to be deposited in the Certificate Account
pursuant to Section 3.06. The Master Servicer shall be required to pay all
expenses incurred by it in connection with its servicing activities hereunder
(including the fees of any Subservicer, payment of any premiums for hazard
insurance, and any Primary
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Insurance Policy and maintenance of the other forms of insurance coverage
required by this Agreement) and shall not be entitled to reimbursement
therefor except as specifically provided in this Agreement.
Section 3.16. Access to Certain Documentation.
The Master Servicer shall provide to the OTS and the FDIC and to
comparable regulatory authorities supervising Holders of Subordinated
Certificates and the examiners and supervisory agents of the OTS, the FDIC,
and such other authorities, access to the documentation regarding the Mortgage
Loans required by applicable regulations of the OTS and the FDIC. Access shall
be afforded without charge, but only upon reasonable prior written request and
during normal business hours at the offices designated by the Master Servicer.
Nothing in this Section 3.16 shall limit the obligation of the Master Servicer
to observe any applicable law prohibiting disclosure of information regarding
the Mortgagors and the failure of the Master Servicer to provide access as
provided in this Section 3.16 as a result of such obligation shall not
constitute a breach of this Section 3.16.
Section 3.17. Annual Statement as to Compliance.
The Master Servicer shall deliver to the Depositor and the Trustee by
120 days after the end of each year, commencing with 2002, an Officer's
Certificate stating, as to the signer thereof, that (i) a review of the
activities of the Master Servicer during the preceding calendar year and of
the performance of the Master Servicer under this Agreement has been made
under the officer's supervision, and (ii) to the best of the officer's
knowledge, based on the review, the Master Servicer has fulfilled all its
obligations under this Agreement throughout the year, or, if there has been a
default in the fulfillment of any obligation, specifying each default known to
the officer and its nature and status. The Trustee shall forward a copy of
each compliance statement to each Rating Agency.
Section 3.18. Annual Independent Public Accountants' Servicing
Statement; Financial Statements.
By 120 days after the end of each year, commencing with 2002, the
Master Servicer at its expense shall cause a nationally or regionally
recognized firm of independent public accountants (who may also render other
services to the Master Servicer, the Seller or any affiliate thereof) that is
a member of the American Institute of Certified Public Accountants to furnish
a statement to the Trustee and the Depositor to the effect that the firm has
examined certain documents and records relating to the servicing of the
Mortgage Loans under this Agreement or of mortgage loans under pooling and
servicing agreements substantially similar to this Agreement (the statement to
have attached to it a schedule of the pooling and servicing agreements covered
by it) and that, on the basis of its examination, conducted substantially in
compliance with the Audit Guide for Audits of HUD Approved Nonsupervised
Mortgagees, the Uniform Single Attestation Program for Mortgage Bankers, or
the Audit Program for
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Mortgages serviced for FNMA and FHLMC, such servicing has been conducted in
compliance with the pooling and servicing agreements except for any
significant exceptions or errors in records that, in the opinion of the firm,
the Audit Guide for Audits of HUD Approved Nonsupervised Mortgagees, the
Uniform Single Attestation Program for Mortgage Bankers, or the Audit Program
for Mortgages serviced for FNMA and FHLMC requires it to report. In rendering
the statement, the firm may rely, as to matters relating to direct servicing
of mortgage loans by the subservicers, upon comparable statements for
examinations conducted substantially in compliance with the Audit Guide for
Audits of HUD Approved Nonsupervised Mortgagees, the Uniform Single
Attestation Program for Mortgage Bankers, or the Audit Program for Mortgages
serviced for FNMA and FHLMC (rendered within one year of the statement) of
independent public accountants with respect to the related Subservicer. The
Master Servicer shall deliver the statement to the Trustee so that the Trustee
can provide copies of the statement to any Certificateholder on request at the
Master Servicer's expense.
Section 3.19. Errors and Omissions Insurance; Fidelity Bonds.
The Master Servicer shall obtain and maintain in force (a) policies
of insurance covering errors and omissions in the performance of its
obligations as Master Servicer hereunder and (b) a fidelity bond covering its
officers, employees, and agents. Each policy and bond shall, together, comply
with the requirements from time to time of FNMA or FHLMC for persons
performing servicing for mortgage loans purchased by FNMA or FHLMC. The Master
Servicer shall provide the Trustee and the NIM Insurer, upon request, with a
certificate of insurance relating to the insurance policies and fidelity bond.
If any policy or bond ceases to be in effect, the Master Servicer shall obtain
a comparable replacement policy or bond from an insurer or issuer meeting the
above requirements as of the date of the replacement. The Master Servicer
shall also cause each Subservicer to maintain a policy of insurance covering
errors and omissions and fidelity bond that meets these requirements.
Section 3.20. Prepayment Charges.
(a) The Master Servicer will not waive any part of any Prepayment
Charge unless the waiver relates to a default or a reasonably foreseeable
default and 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 Master Servicer will not waive a Prepayment Charge in connection
with a refinancing of a Mortgage Loan that is not related to a default or a
reasonably foreseeable default.
(b) 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
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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. If the NIM Insurer discovers a breach of the foregoing, it
may give written notice of the breach to the Master Servicer, the Seller, and
the Trustee. Within 60 days of the earlier of discovery by the Master Servicer
or receipt of notice by the Master Servicer of breach, the Master Servicer
shall cure the breach in all material respects or shall pay into the
Collection Account the amount of the scheduled Prepayment Charge, less any
amount previously collected and paid by the Master Servicer into the
Collection Account. If the covenant made by the Master Servicer in clause (a)
above is breached, the Master Servicer must pay into the Collection Account
the amount of the waived Prepayment Charge.
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ARTICLE FOUR
DISTRIBUTIONS AND ADVANCES BY THE MASTER SERVICER
Section 4.01. Advances.
The Master Servicer shall determine by each Master Servicer Advance
Date whether it is required to make an Advance pursuant to the definition of
Advance. If the Master Servicer determines it is required to make an Advance,
it shall, by the Master Servicer Advance Date, either (i) deposit into the
Certificate Account the Advance or (ii) make an appropriate entry in its
records relating to the Certificate Account that any Amount Held for Future
Distribution has been used by the Master Servicer in discharge of its
obligation to make the Advance. The Master Servicer shall replace any funds so
applied by making a deposit in the Certificate Account no later than the close
of business on the next Master Servicer Advance Date. The Master Servicer
shall be reimbursed from the Certificate Account for all Advances of its own
funds made pursuant to this Section 4.01 as provided in Section 3.09. The
obligation to make Advances with respect to any Mortgage Loan shall continue
if the Mortgage Loan has been foreclosed or otherwise terminated and the
related Mortgaged Property has not been liquidated. The Master Servicer shall
inform the Trustee of the amount of the Advance to be made on each Master
Servicer Advance Date no later than the second Business Day before the related
Distribution Date.
The Master Servicer shall deliver to the Trustee on the related
Master Servicer Advance Date an Officer's Certificate of a Servicing Officer
indicating the amount of any proposed Advance determined by the Master
Servicer to be a Nonrecoverable Advance.
Section 4.02. Priorities of Distribution.
(I) On each Distribution Date, the Trustee will make the
disbursements and transfers from amounts then on deposit in the Distribution
Account in the following order of priority for each Certificate Group and, in
each case, to the extent of the remaining Available Funds:
(a) to the holders of each Class of Certificates in the following
order of priority:
(i) to the Class A Certificates, the Accrued Certificate
Interest Distribution Amount and any Unpaid Interest Amounts for the
Distribution Date;
(ii) to the Class M-1 Certificates, the Accrued Certificate
Interest Distribution Amount for the Class on the Distribution Date;
(iii) to the Class M-2 Certificates, the Accrued Certificate
Interest Distribution Amount for the Class on the Distribution Date;
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(iv) to the Class B Certificates, the Accrued Certificate
Interest Distribution Amount for the Class on the Distribution Date;
(b)
(i) with respect to each Distribution Date (x) before the
Stepdown Date or (y) if a Trigger Event is in effect, to the holders
of the Classes of Offered Certificates then entitled to
distributions of principal as set forth below, the applicable
principal distribution amount from each Loan Group or Subgroup in
the following order of priority:
(A)
(1) in the case of the Group 1 Certificates and the
Class AR Certificate,
(x) the Subgroup 0X Xxxxxxxxx Xxxxxxxxxxxx
Xxxxxx:
o the Class AF-A Certificates,
until their Class Certificate Balance is
reduced to zero; and
(y) the Subgroup 1B Principal
Distribution Amount:
o to the Class AR Certificates,
until their Class Certificate Balance is
reduced to zero;
o to the Class AF-B4 Certificates
an amount equal to the AF-B4 Share times
the Lockout Percentage; and then
o sequentially to the Class AF-B1,
Class AF-B2, Class AF-B3, and Class
AF-B4 Certificates, until their
respective Class Certificate Balances
are reduced to zero;
(2) in the case of the Group 2 Certificates,
(x) the Subgroup 2A Principal Distribution
Amount to the Class AV-A Certificates until their
Class Certificate Balance is reduced to zero; and
(y) the Subgroup 2B Principal Distribution
Amount to the Class AV-B Certificates until their Class
Certificate Balance is reduced to zero; and then
(B) sequentially to the Class M-1, Class M-2, and Class B
Certificates until their respective Class Certificate Balances are
reduced to zero;
(ii) on each Distribution Date (x) on and after the Stepdown Date
and (y) as long as a Trigger Event is not in effect, to the holders of
the Classes of Offered
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Certificates then entitled to distributions of principal an amount equal
to, in the aggregate, the applicable principal distribution amount from
each Loan Group or Subgroup in the following amounts and order of
priority:
(A) the Class A Principal Distribution Amount, in the following
order of priority:
(1) in the case of the Group 1 Certificates and the Class
AR Certificate,
(x) the Subgroup 0X Xxxxxxxxx Xxxxxxxxxxxx Xxxxxx:
o to the Class AF-A Certificates, until their
Class Certificate Balance is reduced to zero; and
(y) the Subgroup 1B Principal Distribution Amount:
o to the Class AR Certificates, until their
Class Certificate Balance is reduced to zero; and
then
o to the Class AF-B4 Certificates an amount
equal to the AF-B4 Share times the Lockout
Percentage; and then
o sequentially to the Class AF-B1, Class
AF-B2, Class AF-B3, and Class AF-B4 Certificates,
until their respective Class Certificate Balances
are reduced to zero;
(2) in the case of the Group 2 Certificates,
(x) the Subgroup 2A Principal Distribution Amount to
the Class AV-A Certificates until their Class Certificate
Balance is reduced to zero; and
(y) the Subgroup 2B Principal Distribution Amount to
the Class AV-B Certificates until their Class Certificate
Balance is reduced to zero; and then
(B) to the Class M-1 Certificateholders, until their Class
Certificate Balance has been reduced to zero, the lesser of
(1) the excess of (i) the Principal Distribution Amount
over (ii) the amount distributed to the Class A
Certificateholders in clause (b)(ii)(A) above and
(2) the Class M-1 Principal Distribution Amount;
(C) to the Class M-2 Certificateholders, until their Class
Certificate Balance has been reduced to zero, the lesser of
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(1) the excess of (i) the Principal Distribution Amount
over (ii) the amount distributed to the Class A
Certificateholders in clause (b)(ii)(A) above and to the Class
M-1 Certificates in clause (b)(ii)(B) above and
(2) the Class M-2 Principal Distribution Amount;
(D) to the Class B Certificateholders, until their Class
Certificate Balance has been reduced to zero, the lesser of
(1) the excess of (i) the Principal Distribution Amount
over (ii) the amount distributed to the Class A
Certificateholders in clause (b)(ii)(A) above, to the Class M-1
Certificates in clause (b)(ii)(B) above, and to the Class M-2
Certificates in clause (b)(ii)(C) above and
(2) the Class B Principal Distribution Amount;
(c) any amount of Available Funds remaining after the distributions
in clauses (i) and (ii) above shall be distributed in the following order of
priority with respect to the Certificates:
(i) to fund the Extra Principal Distribution Amount for the
Distribution Date to be paid as a component of the Principal Distribution
Amount in the same order of priority as described in clause (b) above;
(ii) to the holders of the Class M-1 Certificates, any Unpaid
Interest Amounts for the Class;
(iii) to the holders of the Class M-1 Certificates, any Unpaid
Realized Loss Amount for the Class;
(iv) to the holders of the Class M-2 Certificates, any Unpaid
Interest Amounts for the Class;
(v) to the holders of the Class M-2 Certificates, any Unpaid
Realized Loss Amount for the Class;
(vi) to the holders of the Class B Certificates, any Unpaid Interest
Amounts for the Class;
(vii) to the holders of the Class B Certificates, any Unpaid
Realized Loss Amount for the Class;
(viii) to the Excess Reserve Fund Account, the amount of any Net WAC
Cap Payment for the Distribution Date;
(ix) to the holders of any affected Certificates from funds in the
Excess Reserve Fund Account, any Net WAC Cap CarryForward Amount for the
Distribution Date in the same order and priority in which Accrued
Certificate Interest is allocated among the Classes of Certificates;
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(x) to the holders of the Class X Certificate, the Class X
Distributable Amount; and
(xi) to the holders of the Class AR Certificates, any remaining
amount.
(II) On each Distribution Date, an amount equal to all Prepayment
Charges received during the related Prepayment Period will be distributed to
the holders of the Class P Certificates.
(III) If on any Distribution Date the Group 1 or Group 2 Certificates
are still outstanding and the other group of Certificates is not outstanding,
then the remaining group of Certificates will receive 100% of the Principal
Distribution Amount or the Class A Principal Distribution Amount, as
applicable, until their aggregate Class Certificate Balance has been reduced
to zero.
If on any Distribution Date the Group 1A or Group 1B Certificates are
still outstanding and the other subgroup of Certificates is not outstanding,
then the remaining subgroup of Certificates will receive 100% of the Group 1
Principal Distribution Amount until their aggregate Class Certificate Balance
has been reduced to zero. The Subgroup 2A and Subgroup 2B Certificates are
treated in the same manner as the Subgroup 1A and Subgroup 1B Certificates.
Section 4.03. Monthly Statements to Certificateholders.
(a) Not later than each Distribution Date, the Trustee shall prepare
and make available to each Certificateholder, the Master Servicer, the
Depositor, the NIM Insurer, and each Rating Agency on its Internet website a
statement for the related distribution of:
(i) the amount of the distribution allocable to principal,
separately identifying the aggregate amount of any Principal Prepayments
and Liquidation Proceeds included therein;
(ii) the amount of the distribution allocable to interest, any
Unpaid Interest Amounts included in the distribution and any remaining
Unpaid Interest Amounts after giving effect to the distribution, any Net
WAC Cap CarryForward Amount for the Distribution Date, and the amount of
all Net WAC Cap Carry Forward Amount covered by withdrawals from the
Excess Reserve Fund Account on the Distribution Date;
(iii) if the distribution to the Holders of any Class of
Certificates is less than the full amount that would be distributable to
them if sufficient funds were available, the amount of the shortfall and
the allocation of the shortfall between principal and interest, including
any Net WAC Cap CarryForward Amount not covered by amounts in the Excess
Reserve Fund Account;
(iv) the Class Certificate Balance of each Class of Certificates
after giving effect to the distribution of principal on the Distribution
Date;
IV-5
(v) the Pool Stated Principal Balance;
(vi) the amount of the Master Servicing Fees and Servicing Fees paid
to or retained by the Master Servicer or Subservicer (with respect to the
Subservicers, in the aggregate) with respect to the Distribution Date;
(vii) the Pass-Through Rate for each Class of Certificates with
respect to the Distribution Date;
(viii) the amount of Advances included in the distribution on the
Distribution Date and the aggregate amount of Advances outstanding as of
the close of business on the Distribution Date;
(ix) the number and aggregate outstanding balance of Mortgage Loans
in each Loan Group as of the end of the preceding calendar month
(A) delinquent (exclusive of Mortgage Loans in foreclosure) (1)
30 to 59 days, (2) 60 to 89 days, and (3) 90 or more days and
(B) in foreclosure and delinquent (1) 30 to 59 days, (2) 60 to
89 days, and (3) 90 or more days,
as of the close of business on the last day of the calendar month
preceding the Distribution Date;
(x) for each of the preceding 12 calendar months, or all calendar
months since the related Cut-off Date, whichever is less, the aggregate
dollar amount of the Scheduled Payments (A) due on all Outstanding
Mortgage Loans on the Due Date in the month and (B) delinquent 60 days or
more (determined in the same manner as for determining Scheduled Payment
delinquencies that result in a Mortgage Loan being a 60+ Day Delinquent
Loan) on the Due Date in the month;
(xi) with respect to any Mortgage Loan that became an REO Property
during the preceding calendar month, the loan number and Stated Principal
Balance of the Mortgage Loan as of the close of business on the
Determination Date preceding the Distribution Date and the date of
acquisition thereof;
(xii) the total number and principal balance of any REO Properties
(and market value, if available) as of the close of business on the
Determination Date preceding the Distribution Date;
(xiii) whether a Trigger Event has occurred and is continuing
(including the calculation of thereof and the aggregate outstanding
balance of all 60+ Day Delinquent Loans);
(xiv) the amount on deposit in the Excess Reserve Fund Account
(after giving effect to distributions on the Distribution Date);
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(xv) the aggregate amount of Applied Realized Loss Amounts incurred
during the preceding calendar month and aggregate Unpaid Realized Loss
Amounts through the Distribution Date;
(xvi) the amount of any Total Monthly Excess Cash Flow on the
Distribution Date and the allocation thereof to the Certificateholders
with respect to Unpaid Realized Loss Amounts and Unpaid Interest Amounts;
(xvii) with respect to the second Distribution Date, the number and
aggregate balance of any Delay Delivery Mortgage Loans not delivered
within the time periods specified in the definition of Delay Delivery
Mortgage Loans;
(xviii) with respect to each Loan Group, the Subordinated Amount and
Required Subordinated Amount; and
(xix) Prepayment Charges collected, waived, and paid by the Master
Servicer.
For the purposes of determining delinquency periods in reporting
under (ix) above, for any monthly statement a Mortgage Loan's delinquency
period shall be determined as of the Due Date falling in the month in which
the monthly statement is provided and a Mortgage Loan is first delinquent only
after the first Due Date following the Due Date for which any part of a
Scheduled Payment has not been paid, and each calendar month shall be treated
as having 30 days. Thus, for the July monthly statement a Mortgage Loan whose
June Due Date payment has not been paid by the July Due Date is not
delinquent. On the day after the July Due Date it would be one day delinquent.
A Mortgage Loan whose May Due Date payment has not been paid by the July Due
Date is 30 days past due as of the July Due Date, and would be reported as
such in the July monthly statement.
If the statement is not accessible to any of the Certificateholders,
the Master Servicer, the Depositor, the NIM Insurer, or any Rating Agency on
the Trustee's Internet website, the Trustee shall forward a hard copy of it to
each Certificateholder, the Master Servicer, the Depositor, the NIM Insurer,
and each Rating Agency immediately after the Trustee becomes aware that it is
not accessible to any of them via its website. The address of the Trustee's
Internet website where the statement will be accessible is
xxxx://xxx-xxxx.xxx.xxxxxxxx-xxxx.xxx/xxxx. Assistance in using the Trustee's
Internet website may be obtained by calling the Trustee's customer service
desk at (000) 000-0000. The Trustee shall notify each Certificateholder, the
Master Servicer, the Depositor, the NIM Insurer, and each Rating Agency in
writing of any change in the address or means of access to the Internet
website where the statement is accessible.
(b) The Trustee's responsibility for disbursing the above information
to the Certificateholders is limited to the availability, timeliness, and
accuracy of the information
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derived from the Master Servicer. The Trustee is not responsible for any
inaccuracies in or caused by the data provided by the Master Servicer.
By each Determination Date the Master Servicer shall provide to the
Trustee in electronic form the information needed to determine the
distributions to be made pursuant to Section 4.02 and 3.09(b)(ii) and any
other information that the Master Servicer and the Trustee mutually agree on.
(c) Within a reasonable period of time after the end of each calendar
year, the Trustee shall cause to be furnished to each Person who at any time
during the calendar year was a Certificateholder, a statement containing the
information in clauses (a)(i), (a)(ii), and (a)(vii) of this Section 4.03
aggregated for the calendar year or applicable portion thereof during which
the Person was a Certificateholder. Within a reasonable period of time after
the end of each calendar year, the Trustee shall cause to be furnished to the
NIM Insurer, a statement containing the information in clauses (a)(i),
(a)(ii), and (a)(vii) of this Section 4.03 aggregated for the calendar year.
This obligation of the Trustee shall be satisfied to the extent that
substantially comparable information shall be provided by the Trustee pursuant
to any requirements of the Code as from time to time in effect.
Section 4.04. [Reserved]
Section 4.05. [Reserved]
Section 4.06. [Reserved]
Section 4.07. Certain Matters Relating to the Determination of LIBOR.
Until all of the LIBOR Certificates are paid in full, the Trustee
will at all times retain at least four Reference Banks for the purpose of
determining LIBOR with respect to each Interest Determination Date. The Master
Servicer initially shall designate the Reference Banks. Each "Reference Bank"
shall be a leading bank engaged in transactions in Eurodollar deposits in the
international Eurocurrency market, shall not control, be controlled by, or be
under common control with, the Trustee and shall have an established place of
business in London. If any such Reference Bank should be unwilling or unable
to act as such or if the Master Servicer should terminate its appointment as
Reference Bank, the Master Servicer shall promptly appoint another Reference
Bank. The Trustee shall have no liability or responsibility to any Person for
(i) the selection of any Reference Bank for purposes of determining LIBOR or
(ii) any inability to retain at least four Reference Banks that is caused by
circumstances beyond its reasonable control.
The Pass-Through Rate for each Class of LIBOR Certificates for each
Interest Accrual Period shall be determined by the Trustee on each LIBOR
Determination Date so long as the LIBOR Certificates are outstanding on the
basis of LIBOR and the respective formulae appearing in footnotes
corresponding to the LIBOR Certificates in the table relating to the
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Certificates in the Preliminary Statement. The Trustee shall not have any
liability or responsibility to any Person for its inability, following a
good-faith reasonable effort, to obtain quotations from the Reference Banks or
to determine the arithmetic mean referred to in the definition of LIBOR, all
as provided for in this Section 4.07 and the definition of LIBOR. The
establishment of LIBOR and each Pass-Through Rate for the LIBOR Certificates
by the Trustee shall (in the absence of manifest error) be final, conclusive
and binding upon each Holder of a Certificate and the Trustee.
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ARTICLE FIVE
THE CERTIFICATES
Section 5.01. The Certificates.
The Certificates shall be substantially in the forms attached hereto
as exhibits. The Certificates shall be issuable in registered form, in the
minimum denominations in the Preliminary Statement, integral multiples of
$1,000 in excess thereof (except that one Certificate in each Class may be
issued in a different amount that must exceed the applicable minimum
denomination) and aggregate denominations per Class set forth in the
Preliminary Statement.
Subject to Section 9.02 respecting the final distribution on the
Certificates, on each Distribution Date the Trustee shall make distributions
to each Certificateholder of record on the preceding Record Date either
(x) by wire transfer in immediately available funds to the
account of the Holder at a bank or other entity having appropriate
facilities therefor, if
(i) the Holder has so notified the Trustee at least five
Business Days before the related Record Date and
(ii) the Holder holds (A) 100% of the Class Certificate
Balance of any Class of Certificates or (B) Certificates of any
Class with aggregate principal Denominations of not less than
$1,000,000 or
(y) by check mailed by first class mail to the
Certificateholder at the address of such holder appearing in the
Certificate Register.
The Trustee shall execute the Certificates by manual or facsimile
signature of an authorized officer. Certificates bearing the manual or
facsimile signatures of individuals who were, at the time such signatures were
affixed, authorized to sign on behalf of the Trustee shall bind the Trustee,
notwithstanding that such individuals or any of them have ceased to be so
authorized before the countersignature and delivery of any such Certificates
or did not hold such offices at the date of such Certificate. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, unless countersigned by the Trustee by manual signature, and such
countersignature upon any Certificate shall be conclusive evidence, and the
only evidence, that such Certificate has been duly executed and delivered
hereunder. All Certificates shall be dated the date of their countersignature.
On the Closing Date, the Trustee shall countersign the Certificates to be
issued at the direction of the Depositor, or any affiliate thereof.
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The Depositor shall provide to the Trustee on a continuous basis, an
adequate inventory of Certificates to facilitate transfers.
Section 5.02. Certificate Register; Registration of Transfer and
Exchange of Certificates.
(a) The Trustee shall maintain, in accordance with Section 5.06, a
Certificate Register for the Trust Fund in which, subject to subsections (b)
and (c) below and to such reasonable regulations as it may prescribe, the
Trustee shall provide for the registration of Certificates and of transfers
and exchanges of Certificates as herein provided. Upon surrender for
registration of transfer of any Certificate, the Trustee shall execute and
deliver, in the name of the designated transferee or transferees, one or more
new Certificates of the same Class and aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged
for other Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest upon surrender of the
Certificates to be exchanged at the office or agency of the Trustee. Whenever
any Certificates are so surrendered for exchange, the Trustee shall execute,
countersign, and deliver the Certificates that the Certificateholder making
the exchange is entitled to receive. A written instrument of transfer in form
satisfactory to the Trustee duly executed by the Holder or his attorney duly
authorized in writing shall accompany every Certificate presented or
surrendered for registration of transfer or exchange.
No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or exchange
shall be cancelled and subsequently destroyed by the Trustee in accordance
with the Trustee's customary procedures.
(b) No transfer of a Private Certificate shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under said Act and any applicable state securities
laws. If a transfer is to be made in reliance on an exemption from the
Securities Act and any applicable state securities laws, to assure compliance
with the Securities Act and any applicable state securities laws, the
Certificateholder desiring to effect the transfer shall certify to the Trustee
in writing the facts surrounding the transfer in substantially the form in
Exhibit J (the "Transferor Certificate") and either (i) deliver to the Trustee
a letter in substantially the form of Exhibit L (the "Rule 144A Letter") or
(ii) deliver to the Trustee at the expense of the transferor an Opinion of
Counsel that the transfer may be made without registration under the
Securities Act. The Depositor shall provide to any Holder of a Private
Certificate and any prospective transferee designated by the Holder of a
Private Certificate,
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information regarding the related Certificates and the Mortgage Loans and any
other information necessary to satisfy the condition to eligibility in Rule
144A(d)(4) for transfer of the Certificate without registration thereof under
the Securities Act pursuant to the registration exemption provided by Rule
144A. The Trustee and the Master Servicer shall cooperate with the Depositor
in providing the Rule 144A information referenced in the preceding sentence,
including providing to the Depositor such information regarding the
Certificates, the Mortgage Loans, and other matters regarding the Trust Fund
the Depositor reasonably requests to meet its obligation under the preceding
sentence. Each Holder of a Private Certificate desiring to effect a transfer
shall, and does hereby agree to, indemnify the Trustee, the NIM Insurer, the
Depositor, the Seller, and the Master Servicer against any liability that may
result if the transfer is not so exempt or is not made in accordance with such
federal and state laws.
No transfer of an ERISA-Restricted Certificate shall be made unless
the Trustee and the NIM Insurer shall have received either
(i) a representation from the transferee of such Certificate
acceptable to and in form and substance satisfactory to the Trustee
and the NIM Insurer (if the Certificate is a Private Certificate or
a Residual Certificate, the requirement is satisfied only by the
Trustee's receipt of a representation letter from the transferee
substantially in the form of Exhibit L), to the effect that the
transferee is not an employee benefit plan or arrangement subject to
Section 406 of ERISA or a plan subject to Section 4975 of the Code,
nor a Person acting on behalf of any such plan or arrangement nor
using the assets of any such plan or arrangement to effect the
transfer, or
(ii) if the ERISA-Restricted Certificate is a Private
Certificate that has been the subject of an ERISA-Qualifying
Underwriting a Residual Certificate, if the purchaser is an
insurance company, a representation that the purchaser is an
insurance company that is purchasing such Certificates with funds
contained in an "insurance company general account" (as such term is
defined in Section V(e) of Prohibited Transaction Class Exemption
95-60 ("PTCE 95-60") and that the purchase and holding of such
Certificates are covered under Sections I and III of PTCE 95-60, or
(iii) in the case of any such ERISA-Restricted Certificate
presented for registration in the name of an employee benefit plan
subject to ERISA, or a plan or arrangement subject to Section 4975
of the Code (or comparable provisions of any subsequent enactments),
or a trustee of any such plan or any other Person acting on behalf
of any such plan or arrangement or using such plan's or
arrangement's assets, an Opinion of Counsel satisfactory to the
Trustee, the NIM Insurer, and the Master Servicer, which Opinion of
Counsel shall not be an expense of the Trustee, the NIM Insurer, the
Master Servicer, or the Trust Fund, addressed to the Trustee, to the
effect that the purchase or holding of such ERISA-Restricted
Certificate will not result in the assets of the Trust Fund being
deemed to be "plan assets" and subject to the prohibited transaction
provisions of ERISA and the Code and will not subject the Trustee or
the
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Master Servicer to any obligation in addition to those expressly
undertaken in this Agreement or to any liability.
For purposes of the preceding sentence, with respect to an ERISA-Restricted
Certificate that is not a Private Certificate or a Residual Certificate, if
the representation letter referred to in the preceding sentence is not
furnished, the representation shall be deemed to have been made to the Trustee
by the transferee's (including an initial acquirer's) acceptance of the
ERISA-Restricted Certificates. If the representation is violated, or any
attempt to transfer to a plan or arrangement subject to Section 406 of ERISA
or a plan subject to Section 4975 of the Code, or a Person acting on behalf of
any such plan or arrangement or using the assets of any such plan or
arrangement, without the Opinion of Counsel, the attempted transfer or
acquisition shall be void.
To the extent permitted under applicable law (including ERISA), the
Trustee shall not be liable to any Person for any registration of transfer of
any ERISA-Restricted Certificate that is in fact not permitted by this Section
5.02(b) or for making any payments due on such Certificate to the Holder
thereof or taking any other action with respect to such Holder under this
Agreement so long as the transfer was registered by the Trustee in accordance
with the foregoing requirements.
(c) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall be a Permitted Transferee and shall
promptly notify the Trustee (with a copy to the NIM Insurer) of any
change or impending change in its status as a Permitted Transferee.
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the
Trustee shall not register the Transfer of any Residual Certificate
unless, in addition to the certificates required to be delivered to
the Trustee under subparagraph (b) above, the Trustee shall have
been furnished with an affidavit (a copy of which shall be provided
to the NIM Insurer) (a "Transfer Affidavit") of the initial owner or
the proposed transferee in the form of Exhibit I.
(iii) Each Person holding or acquiring any Ownership Interest
in a Residual Certificate shall agree
(A) to obtain a Transfer Affidavit from any other Person
to whom such Person attempts to Transfer its Ownership Interest
in a Residual Certificate,
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(B) to obtain a Transfer Affidavit from any Person for
whom such Person is acting as nominee, trustee or agent in
connection with any Transfer of a Residual Certificate, and
(C) not to Transfer its Ownership Interest in a Residual
Certificate or to cause the Transfer of an Ownership Interest
in a Residual Certificate to any other Person if it has actual
knowledge that such Person is not a Permitted Transferee.
(iv) Any attempted or purported Transfer of any Ownership
Interest in a Residual Certificate in violation of this Section
5.02(c) shall be absolutely null and void and shall vest no rights
in the purported Transferee. If any purported transferee shall
become a Holder of a Residual Certificate in violation of this
Section 5.02(c), then the last preceding Permitted Transferee shall
be restored to all rights as Holder thereof retroactive to the date
of registration of Transfer of such Residual Certificate. The
Trustee shall not be liable to any Person for any registration of
Transfer of a Residual Certificate that is in fact not permitted by
Section 5.02(b) and this Section 5.02(c) or for making any payments
due on such Certificate to the Holder thereof or taking any other
action with respect to such Holder under this Agreement so long as
the Transfer was registered after receipt of the related Transfer
Affidavit, Transferor Certificate, and either the Rule 144A Letter
or the Investment Letter. The Trustee shall be entitled but not
obligated to recover from any Holder of a Residual Certificate that
was in fact not a Permitted Transferee at the time it became a
Holder or, at such subsequent time as it became other than a
Permitted Transferee, all payments made on such Residual Certificate
at and after either such time. Any such payments so recovered by the
Trustee shall be paid and delivered by the Trustee to the last
preceding Permitted Transferee of such Certificate.
(v) The Depositor shall use its best efforts to make available,
upon receipt of written request from the Trustee, all information
necessary to compute any tax imposed under Section 860E(e) of the
Code as a result of a Transfer of an Ownership Interest in a
Residual Certificate to any Holder who is not a Permitted
Transferee.
The restrictions on Transfers of a Residual Certificate in this
Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Trustee of an Opinion of Counsel, which
Opinion of Counsel shall not be an expense of the Trust Fund, the Trustee, the
Seller, the NIM Insurer, or the Master Servicer, to the effect that the
elimination of such restrictions will not cause the Trust Fund hereunder to
fail to qualify as a REMIC at any time that the Certificates are outstanding
or result in the imposition of any tax on the Trust Fund, a Certificateholder,
or any other Person. The Opinion of Counsel shall be accompanied by written
notification from each Rating Agency that the removal of the restriction will
not cause the Rating Agency to downgrade its ratings of the Certificates. Each
Person holding or acquiring
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any Ownership Interest in a Residual Certificate hereby consents to any
amendment of this Agreement that, based on an Opinion of Counsel furnished to
the Trustee, is reasonably necessary (a) to ensure that the record ownership
of, or any beneficial interest in, a Residual Certificate is not transferred,
directly or indirectly, to a Person that is not a Permitted Transferee and (b)
to provide for a means to compel the Transfer of a Residual Certificate that
is held by a Person that is not a Permitted Transferee to a Holder that is a
Permitted Transferee.
(d) The preparation and delivery of all certificates and opinions
referred to above in this Section 5.02 in connection with transfer shall be at
the expense of the parties to such transfers.
(e) Except as provided below, the Book-Entry Certificates shall at
all times remain registered in the name of the Depository or its nominee and
at all times:
(i) registration of the Certificates may not be transferred by
the Trustee except to another Depository;
(ii) the Depository shall maintain book-entry records with
respect to the Certificate Owners and with respect to ownership and
transfers of such Book-Entry Certificates;
(iii) ownership and transfers of registration of the Book-Entry
Certificates on the books of the Depository shall be governed by
applicable rules established by the Depository;
(iv) the Depository may collect its usual and customary fees,
charges, and expenses from its Depository Participants;
(v) the Trustee shall deal with the Depository, Depository
Participants, and indirect participating firms as representatives of
the Certificate Owners of the Book-Entry Certificates for purposes
of exercising the rights of holders under this Agreement, and
requests and directions for and votes of such representatives shall
not be deemed to be inconsistent if they are made with respect to
different Certificate Owners; and
(vi) the Trustee may rely and shall be fully protected in
relying upon information furnished by the Depository with respect to
its Depository Participants and furnished by the Depository
Participants with respect to indirect participating firms and
persons shown on the books of such indirect participating firms as
direct or indirect Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall
be made in accordance with the procedures established by the Depository
Participant or brokerage firm representing the Certificate Owner. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
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If (x)
(i) the Depository or the Depositor advises the Trustee in
writing that the Depository is no longer willing or able to properly
discharge its responsibilities as Depository, and
(ii) the Trustee or the Depositor is unable to locate a
qualified successor,
(y) the Depositor at its option advises the Trustee in writing that
it elects to terminate the book-entry system through the Depository, or
(z) after the occurrence of an Event of Default,
Certificate Owners representing at least 51% of the Certificate Balance of the
Book-Entry Certificates together advise the Trustee and the Depository through
the Depository Participants in writing that the continuation of a book-entry
system through the Depository is no longer in the best interests of the
Certificate Owners, the Trustee shall notify all Certificate Owners, through
the Depository, of the occurrence of any such event and of the availability of
definitive, fully-registered Certificates (the "Definitive Certificates") to
Certificate Owners requesting the same. Upon surrender to the Trustee of the
related Class of Certificates by the Depository, accompanied by the
instructions from the Depository for registration, the Trustee shall issue the
Definitive Certificates. Neither the Master Servicer, the Depositor, nor the
Trustee shall be liable for any delay in delivery of such instruction, and
each may conclusively rely on, and shall be protected in relying on, such
instructions. The Master Servicer shall provide the Trustee with an adequate
inventory of certificates to facilitate the issuance and transfer of
Definitive Certificates. Upon the issuance of Definitive Certificates all
references herein to obligations imposed upon or to be performed by the
Depository shall be deemed to be imposed upon and performed by the Trustee, to
the extent applicable with respect to such Definitive Certificates and the
Trustee shall recognize the Holders of the Definitive Certificates as
Certificateholders hereunder; provided that the Trustee shall not by virtue of
its assumption of such obligations become liable to any party for any act or
failure to act of the Depository.
Section 5.03. Mutilated, Destroyed, Lost, or Stolen Certificates.
If
(a) any mutilated Certificate is surrendered to the Trustee, or
(b) the Trustee receives evidence to its satisfaction of the
destruction, loss, or theft of any Certificate and the Master Servicer, the
NIM Insurer, and the Trustee receive the security or indemnity required by
them to hold each of them harmless,
then, in the absence of notice to the Trustee that the Certificate has been
acquired by a Protected Purchaser, and if the requirements of Section 8-406 of
the UCC are met and subject to Section 8-405 of the UCC, the Trustee shall
execute, countersign, and deliver, in exchange for or in lieu of any
mutilated, destroyed, lost, or stolen Certificate, a new Certificate of like
Class, tenor, and Percentage Interest. In connection with the issuance of any
new Certificate under this Section
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5.03, the Trustee may require the payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee) connected
therewith. Any replacement Certificate issued pursuant to this Section 5.03
shall constitute complete and indefeasible evidence of ownership, as if
originally issued, whether or not the lost, stolen, or destroyed Certificate
is found at any time.
Section 5.04. Persons Deemed Owners.
The Master Servicer, the Trustee, the NIM Insurer, and any agent of
the Master Servicer or the Trustee may treat the Person in whose name any
Certificate is registered as the owner of such Certificate for the purpose of
receiving distributions as provided in this Agreement and for all other
purposes whatsoever, and neither the Master Servicer, the Trustee, the NIM
Insurer, nor any agent of the Master Servicer or the Trustee shall be affected
by any notice to the contrary.
Section 5.05. Access to List of Certificateholders' Names and
Addresses.
If three or more Certificateholders (a) request such information in
writing from the Trustee, (b) state that those Certificateholders desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates, and (c) provide a copy of the
communication that those Certificateholders propose to transmit, or if the
Depositor or Master Servicer requests such information in writing from the
Trustee, then the Trustee shall, within ten Business Days after the receipt of
the request, provide the Depositor, the Master Servicer, or those
Certificateholders at the recipients' expense the most recent list of the
Certificateholders of the Trust Fund held by the Trustee. The Depositor and
every Certificateholder, by receiving and holding a Certificate, agree that
the Trustee shall not be held accountable because of the disclosure of any
such information as to the list of the Certificateholders hereunder,
regardless of the source from which the information was derived.
Section 5.06. Maintenance of Office or Agency.
The Trustee will maintain at its expense an office or agency in
Manhattan, New York City. Currently, that office is located at 000 Xxxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: IN01C3, where Certificates may be
surrendered for registration of transfer or exchange. The Trustee will give
prompt written notice to the Certificateholders of any change in the location
of its office or agency.
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ARTICLE SIX
THE DEPOSITOR AND THE MASTER SERVICER
Section 6.01. Respective Liabilities of the Depositor and the Master
Servicer.
The Depositor and the Master Servicer shall each be liable in
accordance herewith only to the extent of the obligations specifically and
respectively imposed upon and undertaken by them herein.
Section 6.02. Merger or Consolidation of the Depositor or the Master
Servicer.
The Depositor and the Master Servicer will each keep in full effect
its existence, rights, and franchises as a corporation or federal savings
bank, as the case may be, under the laws of the United States or under the
laws of one of the states thereof and will each obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its respective duties under this Agreement.
Any Person into which the Depositor or the Master Servicer may be
merged or consolidated, or any Person resulting from any merger or
consolidation to which the Depositor or the Master Servicer shall be a party,
or any person succeeding to the business of the Depositor or the Master
Servicer, shall be the successor of the Depositor or the Master Servicer, as
the case may be, hereunder, without the execution or filing of any paper or
any further act on the part of any of the parties hereto, anything herein to
the contrary notwithstanding. The successor or surviving Person to the Master
Servicer must be qualified to sell mortgage loans to, and to service mortgage
loans on behalf of, FNMA or FHLMC.
Section 6.03. Limitation on Liability of the Depositor, the Seller,
the Master Servicer, and Others.
None of the Depositor, the Seller, the Master Servicer, the NIM
Insurer, or any of the directors, officers, employees, or agents of the
Depositor, the Seller, the NIM Insurer, or the Master Servicer shall be liable
to the Certificateholders for any action taken or for refraining from taking
any action in good faith pursuant to this Agreement, or for errors in
judgment. This provision shall not protect the Depositor, the Seller, the
Master Servicer, or any such person against any breach of representations or
warranties made by it herein or protect the Depositor, the Seller, the Master
Servicer, or any such person from any liability that would otherwise be
imposed for willful misfeasance, bad faith, or gross negligence in the
performance of duties or because of reckless disregard of duties hereunder.
VI-1
The Depositor, the Seller, the Master Servicer, the NIM Insurer, and
any director, officer, employee, or agent of the Depositor, the Seller, the
NIM Insurer, or the Master Servicer may rely in good faith on any document of
any kind prima facie properly executed and submitted by any Person respecting
any matters arising hereunder.
The Depositor, the NIM Insurer, the Seller, the Master Servicer, and
any director, officer, employee, or agent of the Depositor, the Seller, the
NIM Insurer or the Master Servicer shall be indemnified by the Trust Fund for
any loss, liability, or expense incurred in connection with any audit,
controversy, or judicial proceeding relating to a governmental taxing
authority or any legal action relating to this Agreement or the Certificates,
other than any loss, liability, or expense related to any specific Mortgage
Loans (except any loss, liability, or expense otherwise reimbursable pursuant
to this Agreement) and any loss, liability, or expense incurred because of
willful misfeasance, bad faith, or gross negligence in the performance of
duties hereunder or because of reckless disregard of duties hereunder.
None of the Depositor, the NIM Insurer, the Seller, or the Master
Servicer need appear in, prosecute, or defend any legal action that is not
incidental to its respective duties hereunder and that in its opinion may
involve it in any expense or liability. Any of the Depositor, the NIM Insurer,
the Seller, or the Master Servicer may in its discretion undertake any such
action that it deems appropriate in respect of this Agreement and the rights
and duties of the parties hereto and interests of the Trustee and the
Certificateholders hereunder. In such event, the legal expenses and costs of
the action and any liability resulting from it shall be expenses, costs, and
liabilities of the Trust Fund, and the Depositor, the NIM Insurer, the Seller,
and the Master Servicer shall be entitled to be reimbursed therefor out of the
Certificate Account.
Section 6.04. Limitation on Resignation of the Master Servicer.
The Master Servicer shall not resign from the obligations hereby
imposed on it except (a) upon appointment of a successor servicer that is
reasonably acceptable to the Trustee and the NIM Insurer and receipt by the
Trustee of a letter from each Rating Agency that the resignation and
appointment will not result in a downgrading of the rating of any of the
Certificates or (b) upon determination that its duties hereunder are no longer
permissible under applicable law. Any such determination under clause (b)
permitting the resignation of the Master Servicer shall be evidenced by an
Opinion of Counsel to that effect delivered to the Trustee. No such
resignation shall become effective until the Trustee or a successor Master
Servicer shall have assumed the Master Servicer's obligations hereunder.
Section 6.05. Inspection.
The Master Servicer, in its capacity as Master Servicer, shall afford
the Trustee and the NIM Insurer, upon reasonable advance notice, during normal
business hours, access to all records maintained by the Master Servicer in
respect of its rights and obligations hereunder and access to officers of the
Master Servicer responsible for such obligations. Upon request, the Master
Servicer shall furnish to the Trustee and the NIM Insurer its most recent
publicly
VI-2
available financial statements and any other information relating to
its capacity to perform its obligations under this Agreement reasonably
requested by the NIM Insurer.
VI-3
ARTICLE SEVEN
DEFAULT
Section 7.01. Events of Default.
"Event of Default," wherever used herein, means any one of the
following events:
(a) any failure by the Master Servicer to deposit in the Certificate
Account or remit to the Trustee any payment (other than a payment required to
be made under Section 4.01) required to be made by it under this Agreement,
which failure continues unremedied for five days after the date on which
written notice of the failure has been given to the Master Servicer by the
Trustee, the NIM Insurer, or the Depositor, or to the Master Servicer, the NIM
Insurer, and the Trustee by the Holders of Certificates of any Class
evidencing not less than 25% of the aggregate Percentage Interests of the
Class; or
(b) any failure by the Master Servicer to observe or perform in any
material respect any other of the covenants or agreements on the part of the
Master Servicer contained in this Agreement, which failure materially affects
the rights of Certificateholders and continues unremedied for a period of 60
days after the date on which written notice of such failure shall have been
given to the Master Servicer by the Trustee, the NIM Insurer, or the
Depositor, or to the Master Servicer, the NIM Insurer, and the Trustee by the
Holders of Certificates of any Class evidencing not less than 25% of the
Percentage Interests of the Class; provided that the sixty-day cure period
shall not apply to the initial delivery of the Mortgage File for Delay
Delivery Mortgage Loans nor the failure to repurchase or substitute in lieu
thereof; or
(c) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises for the appointment of a receiver,
conservator or liquidator in any insolvency, readjustment of debt, marshalling
of assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Master
Servicer and such decree or order shall have remained in force undischarged or
unstayed for a period of 60 consecutive days; or
(d) the Master Servicer shall consent to the appointment of a
receiver, conservator or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities, or similar proceedings of or relating
to the Master Servicer or all or substantially all of the property of the
Master Servicer; or
(e) the Master Servicer shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take advantage of,
or commence a voluntary case under, any applicable insolvency or
reorganization statute, make an assignment for the benefit of its creditors,
or voluntarily suspend payment of its obligations.
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If an Event of Default described in clauses (a) through (e) of this
Section 7.01 shall occur, then, and in each and every such case, so long as
such Event of Default shall not have been remedied, the Trustee may, or at the
direction of the NIM Insurer or the Holders of Certificates of any Class
evidencing not less than 662/3% of the Percentage Interests of the Class, the
Trustee shall by notice in writing to the Master Servicer (with a copy to each
Rating Agency), terminate all of the rights and obligations of the Master
Servicer under this Agreement and in the Mortgage Loans and the proceeds
thereof, other than its rights as a Certificateholder hereunder. On and after
the receipt by the Master Servicer of such written notice, all authority and
power of the Master Servicer hereunder, whether with respect to the Mortgage
Loans or otherwise, shall pass to and be vested in the Trustee. The Trustee
shall make any Advance that the Master Servicer failed to make, whether or not
the obligations of the Master Servicer have been terminated pursuant to this
Section.
The Trustee is hereby authorized and empowered to execute and
deliver, on behalf of the Master Servicer, as attorney-in-fact or otherwise,
any documents and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents, or otherwise. Unless expressly
provided in such written notice, no such termination shall affect any
obligation of the Master Servicer to pay amounts owed pursuant to Article
VIII. The Master Servicer agrees to cooperate with the Trustee in effecting
the termination of the Master Servicer's responsibilities and rights
hereunder, including the transfer to the Trustee of all cash amounts that
shall at the time be credited to the Certificate Account, or thereafter be
received with respect to the Mortgage Loans.
Notwithstanding any termination of the activities of the Master
Servicer hereunder, the Master Servicer shall be entitled to receive, out of
any late collection of a Scheduled Payment on a Mortgage Loan that was due
before the notice terminating the Master Servicer's rights and obligations as
Master Servicer hereunder and received after the notice, that portion thereof
to which the Master Servicer would have been entitled pursuant to Sections
3.11(a)(i) through (viii), and any other amounts payable to the Master
Servicer hereunder the entitlement to which arose before the termination of
its activities hereunder.
Section 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer receives a notice of
termination pursuant to Section 7.01, the Trustee shall, subject to and to the
extent provided in Section 3.05, be the successor to the Master Servicer in
its capacity as Master Servicer under this Agreement and the transactions
provided for herein and shall be subject to all the obligations relating
thereto placed on the Master Servicer by the terms hereof and applicable law,
including the obligation to make Advances pursuant to Section 4.01. As
compensation therefor, the Trustee shall be entitled to all funds relating to
the Mortgage Loans that the Master Servicer would have been entitled to charge
to the Certificate Account or Distribution Account if the Master Servicer had
continued
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to act hereunder, including, if the Master Servicer was receiving the
Servicing Fee, the Servicing Fee.
Notwithstanding the foregoing, if the Trustee has become the
successor to the Master Servicer in accordance with Section 7.01, the Trustee
may, if it shall be unwilling to so act, or shall, if it is prohibited by
applicable law from making Advances pursuant to Section 4.01 or if it is
otherwise unable to so act, appoint, or petition a court of competent
jurisdiction to appoint, any established mortgage loan servicing institution
reasonably acceptable to the NIM Insurer (as evidenced by the prior written
consent of the NIM Insurer) the appointment of which does not adversely affect
the then current rating of the Certificates and the NIM Insurer guaranteed
notes by each Rating Agency, as the successor to the Master Servicer hereunder
in the assumption of all or any part of the obligations of the Master Servicer
hereunder.
Any successor to the Master Servicer shall be an institution that is
a FNMA and FHLMC approved seller/servicer in good standing, that has a net
worth of at least $15,000,000, that is willing to service the Mortgage Loans,
and that executes and delivers to the Depositor and the Trustee an agreement
accepting such delegation and assignment, containing an assumption by it of
the rights and obligations of the Master Servicer (other than liabilities of
the Master Servicer under Section 6.03 incurred before termination of the
Master Servicer under Section 7.01), with like effect as if originally named
as a party to this Agreement; provided that each Rating Agency acknowledges
that its rating of the Certificates in effect immediately before the
assignment and delegation will not be qualified or reduced, as a result of the
assignment and delegation.
Pending appointment of a successor to the Master Servicer hereunder,
the Trustee, unless the Trustee is prohibited by law from so acting, shall,
subject to Section 3.05, act in such capacity as hereinabove provided. In
connection with such appointment and assumption, the Trustee may make such
arrangements for the compensation of the successor out of payments on Mortgage
Loans as it and the successor shall agree. No such compensation shall exceed
the Master Servicing Fee Rate plus, if the Master Servicer was receiving the
Servicing Fee, the Servicing Fee Rate. The Trustee and the successor shall
take any action, consistent with this Agreement, necessary to effectuate the
succession.
Neither the Trustee nor any other successor Master Servicer shall be
deemed to be in default hereunder because of any failure to make, or any delay
in making, any distribution hereunder or any portion thereof or any failure to
perform, or any delay in performing, any duties hereunder, in either case
caused by the failure of the Master Servicer to deliver or provide, or any
delay in delivering or providing, any cash, information, documents, or records
to it. The appointment of a successor Master Servicer shall not affect any
liability of the predecessor Master Servicer that my have arisen under this
Agreement before its termination as Master Servicer to pay any deductible
under an insurance policy, to indemnify any person, or otherwise, nor shall
any successor Master Servicer be liable for any acts or omissions of the
VII-3
predecessor Master Servicer or for any breach by the Master Servicer of any of
its representations and warranties contained in this Agreement.
Any successor to the Master Servicer as Master Servicer shall give
notice to the NIM Insurer and the Mortgagors of the change of servicer and
shall, during the term of its service as Master Servicer, maintain in force
the policy or policies that the Master Servicer is required to maintain
pursuant to Section 6.05.
Section 7.03. Notification to Certificateholders.
(a) Upon any termination of or appointment of a successor to the
Master Servicer, the Trustee shall give prompt written notice thereof to
Certificateholders and each Rating Agency.
(b) Within 60 days after the occurrence of any Event of Default, the
Trustee shall transmit by mail to all Certificateholders and each Rating
Agency notice of each Event of Default hereunder known to the Trustee, unless
the Event of Default has been cured or waived.
VII-4
ARTICLE EIGHT
CONCERNING THE TRUSTEE
Section 8.01. Duties of the Trustee.
The Trustee, before the occurrence of an Event of Default and after
the curing of all Events of Default that may have occurred, shall undertake to
perform such duties and only the duties specifically set forth in this
Agreement. If an Event of Default has occurred and remains uncured, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders, or other instruments
furnished to the Trustee that are specifically required to be furnished
pursuant to any provision of this Agreement shall examine them to determine
whether they are in the form required by this Agreement. If any such
instrument is found not to conform to the requirements of this Agreement in a
material manner, the Trustee shall take any action it deems appropriate to
have the instrument corrected, and if the instrument is not corrected to the
Trustee's satisfaction, the Trustee shall notify the Certificateholders of the
defect. The Trustee shall not be responsible for the accuracy or content of
any resolution, certificate, statement, opinion, report, document, order, or
other instrument.
No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct.
Unless an Event of Default known to the Trustee has occurred and is
continuing,
(a) the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Agreement, the Trustee shall not be
liable except for the performance of the duties specifically set forth in this
Agreement, no implied covenants or obligations shall be read into this
Agreement against the Trustee, and the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement that it believed in good
faith to be genuine and to have been duly executed by the proper authorities
respecting any matters arising hereunder;
(b) the Trustee shall not be liable for an error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it is finally proven that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken,
suffered, or omitted to be taken by it in good faith in accordance with the
direction of the NIM Insurer or Holders of Certificates evidencing not less
than 25% of the Voting Rights of Certificates relating to the
VIII-1
time, method, and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the Trustee
under this Agreement.
Section 8.02. Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(a) the Trustee may request and rely upon and shall be protected in
acting or refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond, or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties and the Trustee shall have no
responsibility to ascertain or confirm the genuineness of any signature of any
such party or parties;
(b) the Trustee may consult with counsel, financial advisers, or
accountants and the advice of any such counsel, financial advisers, or
accountants, and any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such Opinion of
Counsel;
(c) the Trustee shall not be liable for any action taken, suffered,
or omitted by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Agreement;
(d) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, or other
paper or document, unless requested in writing so to do by the NIM Insurer or
Holders of Certificates evidencing not less than 25% of the Voting Rights
allocated to each Class of Certificates;
(e) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
accountants, or attorneys, and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agents, accountants, or attorneys
appointed with due care by it hereunder;
(f) the Trustee shall not be required to risk or expend its own funds
or otherwise incur any financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers hereunder if it shall
have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not assured to it;
(g) the Trustee shall not be liable for any loss on any investment of
funds pursuant to this Agreement (other than as issuer of the investment
security);
(h) the Trustee shall not be deemed to have knowledge of an Event of
Default until a Responsible Officer of the Trustee shall have received written
notice thereof; and
(i) the Trustee need not exercise any of the trusts, rights, or
powers vested in it by this Agreement or to institute, conduct, or defend any
litigation in connection with this Agreement at
VIII-2
the request, order, or direction of the NIM Insurer or any of the
Certificateholders pursuant to this Agreement unless the NIM Insurer or the
Certificateholders shall have offered to the Trustee reasonable security or
indemnity satisfactory to the Trustee against the costs, expenses, and
liabilities that may be incurred in connection therewith.
Section 8.03. Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates shall be taken
as the statements of the Depositor or the Seller, as the case may be, and the
Trustee assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Agreement or of the
Certificates or of any Mortgage Loan or related document other than with
respect to the Trustee's execution and countersignature of the Certificates.
The Trustee shall not be accountable for the use or application by the
Depositor or the Master Servicer of any funds paid to the Depositor or the
Master Servicer in respect of the Mortgage Loans or deposited in or withdrawn
from the Certificate Account by the Depositor or the Master Servicer.
Except as provided in Section 2.01(c), the Trustee shall have no
responsibility for filing or recording any financing or continuation statement
in any public office at any time or to otherwise perfect or maintain the
perfection of any security interest or lien granted to it hereunder (unless
the Trustee shall have become the successor Master Servicer).
The Trustee executes the Certificates not in its individual capacity
but solely as Trustee of the Trust Fund created by this Agreement, in the
exercise of the powers and authority conferred and vested in it by this
Agreement. Each of the undertakings and agreements made on the part of the
Trustee on behalf of the Trust Fund in the Certificates is made and intended
not as a personal undertaking or agreement by the Trustee but is made and
intended for the purpose of binding only the Trust Fund.
Section 8.04. Trustee May Own Certificates.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Certificates with the same rights as it would have if it
were not the Trustee.
Section 8.05. Trustee's Fees and Expenses.
As compensation for its activities under this Agreement, the Trustee
may withdraw from the Distribution Account on each Distribution Date the
Trustee Fee for the Distribution Date. The Trustee and any director, officer,
employee, or agent of the Trustee shall be indemnified by the Seller against
any loss, liability, or expense (including reasonable attorney's fees)
resulting from any error in any tax or information return prepared by the
Master Servicer or incurred in connection with any claim or legal action
relating to
(a) this Agreement,
(b) the Certificates, or
(c) the performance of any of the Trustee's duties under this
Agreement,
VIII-3
other than any loss, liability, or expense incurred because of willful
misfeasance, bad faith, or negligence in the performance of any of the
Trustee's duties under this Agreement. This indemnity shall survive the
termination of this Agreement or the resignation or removal of the Trustee
under this Agreement. Without limiting the foregoing, except as otherwise
agreed upon in writing by the Depositor and the Trustee, and except for any
expense, disbursement, or advance arising from the Trustee's negligence, bad
faith, or willful misconduct, the Seller shall pay or reimburse the Trustee,
for all reasonable expenses, disbursements, and advances incurred or made by
the Trustee in accordance with this Agreement with respect to
(A) the reasonable compensation, expenses, and disbursements of
its counsel not associated with the closing of the issuance of the
Certificates,
(B) the reasonable compensation, expenses, and disbursements of
any accountant, engineer, or appraiser that is not regularly
employed by the Trustee, to the extent that the Trustee must engage
them to perform services under this Agreement, and
(C) printing and engraving expenses in connection with
preparing any Definitive Certificates.
Except as otherwise provided in this Agreement, the Trustee shall not be
entitled to payment or reimbursement for any routine ongoing expenses incurred
by the Trustee in the ordinary course of its duties as Trustee, Registrar, or
Paying Agent under this Agreement or for any other expenses.
Section 8.06. Eligibility Requirements for the Trustee.
The Trustee hereunder shall at all times be a corporation or
association organized and doing business under the laws of a state or the
United States of America, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by federal or state authority and with a
credit rating that would not cause either of the Rating Agencies to reduce
their respective then current ratings of the Certificates (or having provided
such security from time to time as is sufficient to avoid such reduction) as
evidenced in writing by each Rating Agency. If such corporation or association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 8.06 the combined capital and surplus of such
corporation or association shall be deemed to be its combined capital and
surplus as disclosed in its most recent report of condition so published. If
at any time the Trustee ceases to be eligible in accordance with this Section
8.06, the Trustee shall resign immediately in the manner and with the effect
specified in Section 8.07. The entity serving as Trustee may have normal
banking and trust relationships with the Depositor and its affiliates or the
Master Servicer and its affiliates. The Trustee may not be an affiliate of the
Seller, the Depositor, or the Master Servicer, other than the Trustee in its
role as successor to the Master Servicer. 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
VIII-4
the Trustee at the time the Trustee is appointed Trustee to the effect that
the Trust will not be a taxable entity under the laws of that state.
Section 8.07. Resignation and Removal of the Trustee.
The Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice of resignation to the Depositor, the
Master Servicer, and each Rating Agency not less than 60 days before the date
specified in the notice, when, subject to Section 8.08, the resignation is to
take effect, and acceptance by a successor trustee in accordance with Section
8.08 meeting the qualifications in Section 8.06. If no successor trustee
meeting those qualifications shall have been so appointed and have accepted
appointment within 30 days after the notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment
of a successor trustee reasonably acceptable to the NIM Insurer.
If at any time the Trustee shall cease to be eligible in accordance
with Section 8.06 and shall fail to resign after written request thereto by
the NIM Insurer or the Depositor, or if at any time the Trustee shall become
incapable of acting, or shall be adjudged as bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation, or liquidation, or a
tax is imposed with respect to the Trust Fund by any state in which the
Trustee or the Trust Fund is located and the imposition of the tax would be
avoided by the appointment of a different trustee, then the Depositor, the NIM
Insurer, or the Master Servicer may remove the Trustee and appoint a successor
trustee reasonably acceptable to the NIM Insurer by written instrument, in
triplicate, one copy of which shall be delivered to the Trustee, one copy to
the Master Servicer, and one copy to the successor trustee.
The NIM Insurer or the Holders of Certificates entitled to at least
51% of the Voting Rights may at any time remove the Trustee and appoint a
successor trustee by written instrument or instruments, in triplicate, signed
by the NIM Insurer or the Holders or their attorneys-in-fact duly authorized,
as the case may be, one complete set of which shall be delivered by the
successor Trustee to the Master Servicer, one complete set to the Trustee so
removed, and one complete set to the successor so appointed. The successor
trustee shall notify each Rating Agency of any removal of the Trustee.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to this Section 8.07 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section
8.08.
Section 8.08. Successor Trustee.
Any successor trustee appointed as provided in Section 8.07 shall
execute, acknowledge, and deliver to the Depositor, its predecessor trustee,
and the Master Servicer an instrument accepting its appointment hereunder and
thereupon the resignation or removal of the predecessor trustee shall become
effective and the successor trustee, without any further act,
VIII-5
deed, or conveyance, shall become fully vested with all the rights and
obligations of its predecessor hereunder, with the like effect as if
originally named as trustee herein. The Depositor, the Master Servicer, and
the predecessor trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for more fully and certainly
vesting and confirming in the successor trustee all such rights and
obligations.
No successor trustee shall accept appointment as provided in this
Section 8.08 unless at the time of its acceptance, the successor trustee is
eligible under Section 8.06, is reasonably acceptable to the NIM Insurer, and
its appointment does not adversely affect the then current rating of the
Certificates.
Upon acceptance of appointment by a successor trustee as provided in
this Section 8.08, the Depositor shall mail notice of the succession of such
trustee hereunder to the NIM Insurer and all Holders of Certificates. If the
Depositor fails to mail the notice within 10 days after acceptance of
appointment by the successor trustee, the successor trustee shall cause the
notice to be mailed at the expense of the Depositor.
Section 8.09. Merger or Consolidation of the Trustee.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated or any corporation resulting from any
merger, conversion, or consolidation to which the Trustee shall be a party, or
any corporation succeeding to the business of the Trustee, shall be the
successor of the Trustee hereunder if the successor corporation is eligible
under Section 8.06 without the execution or filing of any paper or further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
Section 8.10. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust Fund or property securing any Mortgage Note may at the
time be located, the Master Servicer and the Trustee acting jointly shall have
the power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Trustee and reasonably acceptable to the NIM Insurer
to act as co-trustee or co-trustees jointly with the Trustee, or separate
trustee or separate trustees, of all or any part of the Trust Fund, and to
vest in them, in such capacity and for the benefit of the Certificateholders,
such title to the Trust Fund or any part thereof, whichever is applicable,
and, subject to the other provisions of this Section 8.10, such powers,
duties, obligations, rights, and trusts as the Master Servicer and the Trustee
may consider appropriate. If the Master Servicer shall not have joined in such
appointment within 15 days after the receipt by it of a request to do so, or
in the case an Event of Default shall have occurred and be continuing, the
Trustee alone shall have the power to make such appointment. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility
as a successor trustee under Section 8.06 and no notice to Certificateholders
of the appointment of any co-trustee or separate trustee shall be required
under Section 8.08.
VIII-6
Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and
conditions:
(a) To the extent necessary to effectuate the purposes of this
Section 8.10, all rights and obligations conferred or imposed upon the
Trustee, except for the obligation of the Trustee under this Agreement to
advance funds on behalf of the Master Servicer, shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Trustee joining in
such act), except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Master Servicer hereunder), the Trustee shall
be incompetent or unqualified to perform such act or acts, in which event such
rights and obligations (including holding title to the applicable Trust Fund
or any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at the
direction of the Trustee;
(b) No trustee hereunder shall be held personally liable because of
any act or omission of any other trustee hereunder and such appointment shall
not, and shall not be deemed to, constitute any such separate trustee or
co-trustee as agent of the Trustee;
(c) The Trustee, with the consent of the Insurer, may at any time
accept the resignation of or remove any separate trustee or co-trustee; and
(d) The Master Servicer, and not the Trustee, shall be liable for the
payment of reasonable compensation, reimbursement, and indemnification to any
such separate trustee or co-trustee.
Any notice, request, or other writing given to the Trustee shall be
deemed to have been given to each of the separate trustees and co-trustees,
when and as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article VIII. Each separate trustee and co-trustee,
upon its acceptance of the trusts conferred, shall be vested with the estates
or property specified in its instrument of appointment, either jointly with
the Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Trustee. Every such instrument shall be filed with the
Trustee and a copy thereof given to the Master Servicer and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign, or be removed, all of its
estates, properties, rights, remedies, and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
VIII-7
Section 8.11. Tax Matters.
It is intended that the assets with respect to which any REMIC
election pertaining to the Trust Fund is to be made, as described in the
Preliminary Statement, shall constitute, and that the conduct of matters
relating to such assets shall be such as to qualify such assets as, a "real
estate mortgage investment conduit" as defined in and in accordance with the
REMIC Provisions. In furtherance of such intention, the Trustee covenants and
agrees that it shall act as agent (and the Trustee is hereby appointed to act
as agent) on behalf of any the REMIC and that in such capacity it shall:
(a) prepare and file in a timely manner, a U.S. Real Estate Mortgage
Investment Conduit Income Tax Return (Form 1066 or any successor form adopted
by the Internal Revenue Service) and prepare and file with the Internal
Revenue Service and applicable state or local tax authorities income tax or
information returns for each taxable year with respect to each REMIC,
described in the Preliminary Statement containing such information and at the
times and in the manner as may be required by the Code or state or local tax
laws, regulations, or rules, and furnish to Certificateholders the schedules,
statements, or information at such times and in such manner as may be required
thereby;
(b) within thirty days of the Closing Date, furnish to the Internal
Revenue Service, on Forms 8811 or as otherwise may be required by the Code,
the name, title, address, and telephone number of the person that the holders
of the Certificates may contact for tax information relating thereto, together
with such additional information as may be required by such Form, and update
such information at the time or times in the manner required by the Code;
(c) make an election that each REMIC created under this Agreement be
treated as a REMIC on the federal tax return for its first taxable year (and,
if necessary, under applicable state law);
(d) prepare and forward to the Certificateholders and to the Internal
Revenue Service and, if necessary, state tax authorities, all information
returns and reports as and when required to be provided to them in accordance
with the REMIC Provisions, including the calculation of any original issue
discount using the Prepayment Assumption (as defined in the Prospectus
Supplement);
(e) provide information necessary for the computation of tax imposed
on the transfer of a Residual Certificate to a Person that is not a Permitted
Transferee, or an agent (including a broker, nominee, or other middleman) of a
Non-Permitted Transferee, or a pass-through entity in which a Non-Permitted
Transferee is the record holder of an interest (the reasonable cost of
computing and furnishing such information may be charged to the Person liable
for such tax);
(f) to the extent that they are under its control, conduct matters
relating to such assets at all times that any Certificates are outstanding so
as to maintain the status of any REMIC as a REMIC under the REMIC Provisions;
(g) not knowingly or intentionally take any action or omit to take
any action that would cause the termination of any REMIC created under this
Agreement status;
VIII-8
(h) pay, from the sources specified in the last paragraph of this
Section 8.11, the amount of any federal or state tax, including prohibited
transaction taxes as described below, imposed on any REMIC created under this
Agreement before its termination when and as the same shall be due and payable
(but such obligation shall not prevent the Trustee or any other appropriate
Person from contesting any such tax in appropriate proceedings and shall not
prevent the Trustee from withholding payment of such tax, if permitted by law,
pending the outcome of such proceedings);
(i) ensure that federal, state, or local income tax or information
returns shall be signed by the Trustee or such other person as may be required
to sign such returns by the Code or state or local laws, regulations, or
rules;
(j) maintain records relating to each REMIC created under this
Agreement, including the income, expenses, assets, and liabilities thereof and
the fair market value and adjusted basis of the assets determined at such
intervals as may be required by the Code, as may be necessary to prepare the
foregoing returns, schedules, statements, or information; and
(k) as and when necessary and appropriate, represent any REMIC
created under this Agreement in any administrative or judicial proceedings
relating to an examination or audit by any governmental taxing authority,
request an administrative adjustment as to any taxable year of any REMIC
created under this Agreement, enter into settlement agreements with any
governmental taxing agency, extend any statute of limitations relating to any
tax item of any REMIC created under this Agreement, and otherwise act on
behalf of any REMIC created under this Agreement in relation to any tax matter
or controversy involving it.
To enable the Trustee to perform its duties under this Agreement, the
Depositor shall provide to the Trustee within ten days after the Closing Date
all information or data that the Trustee requests in writing and determines to
be relevant for tax purposes to the valuations and offering prices of the
Certificates, including the price, yield, prepayment assumption, and projected
cash flows of the Certificates and the Mortgage Loans. Moreover, the Depositor
shall provide information to the Trustee concerning the value to each Class of
Certificates of the right to receive Net WAC Cap CarryForward Amounts from the
Excess Reserve Fund. Thereafter, the Depositor shall provide to the Trustee
promptly upon written request therefor any additional information or data that
the Trustee may, from time to time, reasonably request to enable the Trustee
to perform its duties under this Agreement. The Depositor hereby indemnifies
the Trustee for any losses, liabilities, damages, claims, or expenses of the
Trustee arising from any errors or miscalculations of the Trustee that result
from any failure of the Depositor to provide, or to cause to be provided,
accurate information or data to the Trustee on a timely basis.
If any tax is imposed on "prohibited transactions" of the REMIC as
defined in Section 860F(a)(2) of the Code, on the "net income from foreclosure
property" of any REMIC created under this Agreement as defined in Section
860G(c) of the Code, on any contribution to any REMIC created under this
Agreement after the Startup Day pursuant to Section 860G(d) of the Code, or
any other tax is imposed, including any minimum tax imposed on any REMIC
created
VIII-9
under this Agreement pursuant to Sections 23153 and 24874 of the California
Revenue and Taxation Code, if not paid as otherwise provided for herein, the
tax shall be paid by (i) the Trustee if such tax or any other tax arises out
of or results from negligence of the Trustee in the performance of any of its
obligations under this Agreement, (ii) the Master Servicer or the Seller, in
the case of any such minimum tax, if such tax arises out of or results from a
breach by the Master Servicer or Seller of any of their obligations under this
Agreement, (iii) the Seller if such tax arises out of or results from the
Seller's obligation to repurchase a Mortgage Loan pursuant to Section 2.02 or
2.03, or (iv) in all other cases, or if the Trustee, the Master Servicer, or
the Seller fails to honor its obligations under the preceding clauses (i),
(ii), or (iii), any such tax will be paid with amounts otherwise to be
distributed to the Certificateholders, as provided in Section 3.09(b).
Section 8.12. Periodic Filings.
Beginning with the first Distribution Date, the Trustee shall
prepare, execute, and file all periodic reports required under the Securities
Exchange Act of 1934 in conformity with the terms of the relief granted to
issuers similar to the Trust Fund. In connection with the preparation and
filing of such periodic reports, the Depositor and the Master Servicer shall
timely provide to the Trustee all material information available to them that
is required to be included in such reports and not known to them to be in the
possession of the Trustee and such other information as the Trustee reasonably
may request from either of them and otherwise reasonably shall cooperate with
the Trustee. The Trustee shall have no liability with respect to any failure
to properly prepare or file such periodic reports resulting from or relating
to the Trustee's inability or failure to obtain any information not resulting
from its own negligence or willful misconduct.
Section 8.13. [Reserved]
Section 8.14. Tax Classification of the Excess Reserve Fund Account
For federal income tax purposes, the Trustee shall treat the Excess
Reserve Fund Account as an outside reserve fund, within the meaning of
Treasury Regulation ss. 1.860G-2(h), that is beneficially owned by the holder
of the Class X Certificate. The Trustee shall treat the rights that each Class
of Certificates has to receive payments of Net WAC Cap CarryForward Amounts
from the Excess Reserve Fund Account as rights to receive payments under an
interest rate cap contract written by the Class X Certificateholder in favor
of each Class. Accordingly, each Class of Certificates other than the Class X
Certificate and Class P Certificate will comprise two components - a Master
Regular Interest and an interest in a cap contract. The Trustee shall allocate
the issue price for a Class of Certificates between two components for
purposes of determining the issue price of the Master Regular Interest
component.
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Section 8.15. Access to Records of Trustee.
The Trustee shall afford the Seller, the Depositor, the Master
Servicer, the NIM Insurer, and each Certificateholder 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 Master Servicer, the NIM Insurer, and any
requesting Certificateholder with its most recent financial statements. The
Trustee shall cooperate fully with the Seller, the Master Servicer, the
Depositor, the NIM Insurer, and the Certificateholder for review and copying
any books, documents, or records requested with respect to the Trustee's
duties under this Agreement. The Seller, the Depositor, the Master Servicer,
and the Certificateholder 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.
Section 8.16. Suits for Enforcement.
If an Event of Default or other material default by the Master
Servicer or the Depositor under this Agreement occurs and is continuing, at
the direction of the Majority Certificateholders or the NIM Insurer the
Trustee shall proceed to protect and enforce its rights and the rights of the
Certificateholders or the NIM Insurer 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, the NIM Insurer, and the
Certificateholders.
VIII-11
ARTICLE NINE
TERMINATION
Section 9.01. Termination upon Liquidation or Purchase of the
Mortgage Loans.
Subject to Section 9.03, the obligations of the Depositor, the Master
Servicer, and the Trustee created hereby with respect to the Trust Fund shall
terminate upon the earlier of
(a) the purchase by the NIM Insurer or the Master Servicer of all
Mortgage Loans (and REO Properties) at the price equal to the sum of
(i) 100% of the Stated Principal Balance of each Mortgage Loan
(other than for delinquent Mortgage Loans and REO Property) plus one
month's accrued interest thereon at the applicable Adjusted Mortgage
Rate and
(ii) the lesser of (x) the appraised value of any delinquent
Mortgage Loans and REO Property as determined by the higher of two
appraisals completed by two independent appraisers selected by the
Master Servicer at the expense of the Master Servicer and (y) the
Stated Principal Balance of each delinquent Mortgage Loan and each
Mortgage Loan related to any REO Property, in each case plus
accrued and unpaid interest thereon at the applicable Adjusted Net
Mortgage Rate and
(b) the later of
(i) the maturity or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan remaining in the Trust
Fund and the disposition of all REO Property and
(ii) the distribution to Certificateholders of all amounts
required to be distributed to them pursuant to this Agreement. In no
event shall the trusts created hereby continue beyond the expiration
of 21 years from the death of the survivor of the descendants of
Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to the
Court of St. James's, living on the date hereof or the Latest
Possible Maturity Date (as defined in the Preliminary Statement).
The Master Servicer may repurchase all Mortgage Loans and REO
Properties pursuant to clause (a) above if the aggregate Stated Principal
Balance of the Mortgage Loans, at the time of the repurchase, is ten percent
or less of the aggregate Cut-off Date Principal Balance of the Initial
Mortgage Loans and the initial Pre-Funding Amount. If the Master Servicer is
entitled to repurchase the Mortgage Loans pursuant to this Section and fails
to do so, the NIM Insurer may repurchase all Mortgage Loans and REO Properties
pursuant to clause (a) above after thirty days prior notice to the Master
Servicer if the Master Servicer does not first purchase them.
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Section 9.02. Final Distribution on the Certificates.
If on any Determination Date, the NIM Insurer or the Master Servicer
determines that there are no Outstanding Mortgage Loans and no other funds or
assets in the Trust Fund other than the funds in the Certificate Account, the
NIM Insurer or the Master Servicer shall direct the Trustee promptly to send a
final distribution notice to each Certificateholder. If the NIM Insurer or the
Master Servicer elects to terminate the Trust Fund pursuant to clause (a) of
Section 9.01, at least 20 days before the date notice is to be mailed to the
affected Certificateholders, the Master Servicer shall notify the Depositor
and the Trustee of the date the Master Servicer intends to terminate the Trust
Fund and of the applicable repurchase price of the Mortgage Loans and REO
Properties.
Notice of any termination of the Trust Fund, specifying the
Distribution Date on which Certificateholders may surrender their Certificates
for payment of the final distribution and cancellation, shall be given
promptly by the Trustee by letter to Certificateholders mailed not earlier
than the 10th day and not later than the 15th day of the month next preceding
the month of such final distribution. Any such notice shall specify (a) the
Distribution Date upon which final distribution on the Certificates will be
made upon presentation and surrender of Certificates at the office therein
designated, (b) the amount of such final distribution, (c) the location of the
office or agency at which such presentation and surrender must be made, and
(d) that the Record Date otherwise applicable to the Distribution Date is not
applicable, distributions being made only upon presentation and surrender of
the Certificates at the office therein specified. The Master Servicer will
give such notice to each Rating Agency at the time such notice is given to
Certificateholders.
If the notice is given, the Master Servicer shall cause all funds in
the Certificate Account to be remitted to the Trustee for deposit in the
Distribution Account on the Business Day before the applicable Distribution
Date in an amount equal to the final distribution in respect of the
Certificates. Upon such final deposit with respect to the Trust Fund and the
receipt by the Trustee of a Request for Release therefor, the Trustee shall
promptly release to the Master Servicer the Mortgage Files for the Mortgage
Loans.
Upon presentation and surrender of the Certificates, the Trustee
shall cause to be distributed to the Certificateholders of each Class, in each
case on the final Distribution Date and in the order stated in Section 4.02,
in proportion to their respective Percentage Interests, with respect to
Certificateholders of the same Class, an amount equal to (i) as to each Class
of Regular Certificates (except the Class X Certificate), its Certificate
Balance plus for each such Class and the Class X Certificate accrued interest
thereon in the case of an interest-bearing Certificate and (ii) as to the
Residual Certificates, any amount remaining on deposit in the Distribution
Account (other than the amounts retained to meet claims) after application
pursuant to clause (i) above.
If any affected Certificateholder does not surrender its Certificates
for cancellation within six months after the date specified in the above
mentioned written notice, the Trustee
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shall give a second written notice to the remaining Certificateholders to
surrender their Certificates for cancellation and receive the final
distribution with respect thereto. If within six months after the second
notice all the applicable Certificates shall not have been surrendered for
cancellation, the Trustee may take appropriate steps, or may appoint an agent
to take appropriate steps, to contact the remaining Certificateholders
concerning surrender of their Certificates, and the cost thereof shall be paid
out of the funds and other assets that remain a part of the Trust Fund. If
within one year after the second notice all Certificates shall not have been
surrendered for cancellation, the Class AR Certificateholders shall be
entitled to all unclaimed funds and other assets of the Trust Fund that remain
subject hereto.
Section 9.03. Additional Termination Requirements.
(a) If the NIM Insurer or the Master Servicer exercises its purchase
option with respect to the Mortgage Loans as provided in Section 9.01, the
Trust Fund shall be terminated in accordance with the following additional
requirements, unless the Trustee has been supplied with an Opinion of Counsel,
at the expense of the Master Servicer, to the effect that the failure to
comply with the requirements of this Section 9.03 will not (i) result in the
imposition of taxes on "prohibited transactions" on any REMIC created
hereunder as defined in Section 860F of the Code, or (ii) cause any REMIC
created under this Agreement to fail to qualify as a REMIC at any time that
any Certificates are outstanding:
(b) The Trustee shall sell all of the assets of the Trust Fund to the
NIM Insurer or the Master Servicer, as applicable, and, within 90 days of the
sale, shall distribute to the Certificateholders the proceeds of the sale in
complete liquidation of any Tier REMIC created hereunder.
(c) The Trustee shall attach a statement to the final federal income
tax return for each of any REMIC created hereunder stating that pursuant to
Treasury Regulation ss. 1.860F-1, the first day of the 90-day liquidation
period for each the REMIC was the date on which the Trustee sold the assets of
the Trust Fund to the NIM Insurer or the Master Servicer.
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ARTICLE TEN
MISCELLANEOUS PROVISIONS
Section 10.01. Amendment.
This Agreement may be amended from time to time by the Depositor, the
Master Servicer, and the Trustee with the consent of the NIM Insurer and
without the consent of any of the Certificateholders:
(i) to cure any ambiguity or mistake,
(ii) to correct any defective provision herein or to supplement
any provision herein that may be inconsistent with any other
provision herein,
(iii) to add to the duties of the Depositor, the Seller, or the
Master Servicer,
(iv) to add any other provisions with respect to matters or
questions arising hereunder, or
(v) to modify, alter, amend, add to, or rescind any of the
provisions of this Agreement.
No action pursuant to clauses (iv) or (v) above may, as evidenced by an
Opinion of Counsel (which Opinion of Counsel shall not be an expense of the
Trustee or the Trust Fund), adversely affect in any material respect the
interests of any Certificateholder. The amendment shall not be deemed to
adversely affect in any material respect the interests of the
Certificateholders if the Person requesting the amendment obtains a letter
from each Rating Agency stating that the amendment would not result in the
downgrading or withdrawal of the respective ratings then assigned to the
Certificates. Any such letter in and of itself will not represent a
determination as to the materiality of any amendment and will represent a
determination only as to the credit issues affecting any rating.
The Trustee, the Depositor, and the Master Servicer also may at any
time and from time to time amend this Agreement with the consent of the NIM
Insurer and without the consent of the Certificateholders to modify,
eliminate, or add to any of its provisions to the extent necessary or helpful
to
(i) maintain the qualification of any REMIC created under this
Agreement under the Code,
(ii) avoid or minimize the risk of the imposition of any tax on
any REMIC created under this Agreement pursuant to the Code that
would be a claim at any time before the final redemption of the
Certificates, or
(iii) comply with any other requirements of the Code,
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if the Trustee has been provided an Opinion of Counsel, which opinion shall be
an expense of the party requesting such opinion but in any case shall not be
an expense of the Trustee or the Trust Fund, to the effect that the action is
necessary or helpful for one of those purposes.
This Agreement may also be amended from time to time by the
Depositor, the Master Servicer, and the Trustee with the consent of the NIM
Insurer and the Holders of Certificates of Certificates evidencing Percentage
Interests aggregating not less than 662/3% of each Class of Certificates
affected thereby for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Holders of Certificates. No
amendment shall
(i) reduce in any manner the amount of, or delay the timing of,
payments required to be distributed on any Certificate without the
consent of the Holder of the Certificate,
(ii) adversely affect in any material respect the interests of
the Holders of any Class of Certificates in a manner other than as
described in (i), without the consent of the Holders of Certificates
of the Class evidencing, as to the Class, Percentage Interests
aggregating not less than 662/3%,
(iii) amend, modify, add to, rescind, or alter in any respect
Section 10.12, notwithstanding any contrary provision of this
Agreement, without the consent of the Holders of Certificates
evidencing Percentage Interests aggregating not less than 662/3%,
and for this purpose no Certificates held by the Seller, the
Depositor, or any Affiliate of either of them shall be eligible to
vote or be considered Outstanding, 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.
Notwithstanding any contrary provision of this Agreement, the Trustee
shall not consent to any amendment to this Agreement unless it shall have
first received an Opinion of Counsel satisfactory to the NIM Insurer, which
opinion shall not be an expense of the Trustee or the Trust Fund, to the
effect that the amendment will not cause the imposition of any tax on any
REMIC or the Certificateholders or cause any REMIC to fail to qualify as a
REMIC at any time that any Certificates are outstanding.
Promptly after the execution of any amendment to this Agreement
requiring the consent of Certificateholders, the Trustee shall furnish written
notification of the substance or a copy of the amendment to each
Certificateholder and each Rating Agency.
It shall not be necessary for the consent of Certificateholders under
this Section 10.01 to approve the particular form of any proposed amendment,
but it shall be sufficient if the consent approves its substance. The manner
of obtaining consents and of evidencing the authorization of
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their execution by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee to enter into an
amendment without receiving an Opinion of Counsel satisfactory to the NIM
Insurer (which Opinion shall not be an expense of the Trustee or the Trust
Fund), satisfactory to the Trustee that (i) the amendment is permitted and is
not prohibited by this Agreement and that all requirements for amending this
Agreement have been complied with; and (ii) either (A) the amendment does not
adversely affect in any material respect the interests of any
Certificateholder or (B) the conclusion in the preceding clause (A) is not
required to be reached pursuant to this Section 10.01.
Section 10.02. Recordation of Agreement; Counterparts.
This Agreement is subject to recordation in all appropriate public
offices for real property records in all the counties or other comparable
jurisdictions in which any or all of the properties subject to the Mortgages
are situated, and in any other appropriate public recording office or
elsewhere, the recordation to be effected by the Master Servicer at its
expense, but only upon receipt of an Opinion of Counsel to the effect that the
recordation materially and beneficially affects the interests of the
Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be an original, and all of which shall constitute but one instrument.
Section 10.03. Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS, AND
REMEDIES OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS.
Section 10.04. Intention of Parties.
It is the express intent of the parties hereto that the conveyance
(i) of the Mortgage Loans by the Seller to the Depositor and (ii) of the Trust
Fund by the Depositor to the Trustee each be, and be construed as, an absolute
sale thereof. It is, further, not the intention of the parties that such
conveyances be deemed a pledge thereof. However, if, notwithstanding the
intent of the parties, the assets are held to be the property of the Seller or
Depositor, as the case may be, or if for any other reason this Agreement is
held or deemed to create a security interest in either such assets, then (i)
this Agreement shall be deemed to be a security agreement within the meaning
of the Uniform Commercial Code of the State of New York and (ii) the
conveyances provided for in this Agreement shall be deemed to be an assignment
and a grant (i)
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by the Seller to the Depositor or (ii) by the Depositor to the Trustee, for
the benefit of the Certificateholders, of a security interest in all of the
assets transferred, whether now owned or hereafter acquired.
The Seller and the Depositor for the benefit of the NIM Insurer and
the Certificateholders shall, to the extent consistent with this Agreement,
take such actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the Trust Fund, such security interest
would be deemed to be a perfected security interest of first priority under
applicable law and will be maintained as such throughout the term of the
Agreement. The Depositor shall arrange for filing any Uniform Commercial Code
continuation statements in connection with any security interest granted or
assigned to the Trustee for the benefit of the Certificateholders.
Section 10.05. Notices.
(a) The Trustee shall promptly notify each Rating Agency of each of
the following of which it has actual knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Event of Default that has not
been cured;
3. The resignation or termination of the Master Servicer
or the Trustee and the appointment of any successor;
4. The repurchase or substitution of Mortgage Loans
pursuant to Section 2.03; and
5. The final payment to Certificateholders.
In addition, the Trustee shall promptly furnish to each Rating Agency
copies of the following:
1. Each report to Certificateholders described in Section
4.03;
2. Each annual statement as to compliance described in
Section 3.17;
3. Each annual independent public accountants' servicing
report described in Section 3.18; and
4. Any notice of a purchase of a Mortgage Loan pursuant to
Section 2.02, 2.03 or 3.11.
(b) All directions, demands, and notices hereunder shall be in
writing and be duly given when delivered to
(i) in the case of the Depositor, IndyMac ABS, Inc., 0000 X.
Xxxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, Attention: Capital
Markets, or such other
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address as may be hereafter furnished to the NIM Insurer, the Master
Servicer, and the Trustee by the Depositor;
(ii) in the case of the Master Servicer, IndyMac Bank, F.S.B.,
000 Xxxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, Attention: Master
Servicing, or such other address as may be hereafter furnished to
the NIM Insurer, the Depositor, and the Trustee by the Master
Servicer;
(iii) in the case of the Trustee to the Corporate Trust Office,
Bankers Trust Company of California, N.A., 0000 Xxxx Xx. Xxxxxx
Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000-0000, Attention: Mortgage
Administration IN01C3, Series SPMD 2001-C, or such other address as
the Trustee may hereafter furnish to the NIM Insurer, the Depositor,
and Master Servicer; and
(iv) in the case of the NIM Insurer, to Radian Insurance Inc.,
0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention:
General Counsel, or such other address as the NIM Insurer may
hereafter furnish to the Depositor or Master Servicer;
(v) in the case of each of the Rating Agencies, the address
specified therefor in the definition corresponding to the name of
such Rating Agency.
Notices to Certificateholders shall be deemed given when mailed,
first class postage prepaid, to their respective addresses appearing in the
Certificate Register.
Section 10.06. Severability of Provisions.
If any one or more of the provisions of this Agreement shall be for
any reason whatsoever held invalid, then those provisions shall be deemed
severable from the remaining provisions of this Agreement and shall in no way
affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
Section 10.07. Assignment.
Notwithstanding anything to the contrary contained herein, except as
provided in Section 6.02, this Agreement may not be assigned by the Master
Servicer without the prior written consent of the Trustee and Depositor.
Section 10.08. Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the trust created hereby, nor entitle such
Certificateholder's legal representative or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a petition or
winding up of the trust created hereby, or otherwise affect the rights and
obligations of the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as provided
herein) or in any manner otherwise control the operation and management of the
Trust Fund, or the obligations of the parties hereto, nor shall anything in
this Agreement or the Certificates be construed so
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as to constitute the Certificateholders from time to time as partners or
members of an association; nor shall any Certificateholder be liable to any
third party because of any action taken by the parties to this Agreement
pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action, or
proceeding in equity or at law upon or under or with respect to this
Agreement, unless such Holder previously shall have given to the Trustee a
written notice of an Event of Default and of the continuance thereof, as
herein provided, and unless the Holders of Certificates evidencing not less
than 25% of the Voting Rights evidenced by the Certificates shall also have
made written request to the Trustee to institute such action, suit, or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs,
expenses, and liabilities to be incurred therein or thereby, and the Trustee,
for 60 days after its receipt of such notice, request, and offer of indemnity
shall have neglected or refused to institute any such action, suit, or
proceeding. Each Certificateholder expressly covenants with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself or
themselves of any provisions of this Agreement to affect, disturb, or
prejudice the rights of the Holders of any other of the Certificates, or to
obtain or seek to obtain priority over or preference to any other such Holder
or to enforce any right under this Agreement, except in the manner herein
provided and for the common benefit of all Certificateholders. For the
protection and enforcement of this Section 10.08, each Certificateholder and
the Trustee shall be entitled to any relief that can be given either at law or
in equity.
Section 10.09. Inspection and Audit Rights.
The Master Servicer agrees that, on reasonable prior notice, it will
permit any representative of the Depositor, the NIM Insurer, or the Trustee
during such Person's normal business hours, to examine all the books of
account, records, reports, and other papers of such Person relating to the
Mortgage Loans, to make copies and extracts therefrom, to cause such books to
be audited by independent certified public accountants of the NIM Insurer or
reasonably acceptable to the NIM Insurer selected by the Depositor or the
Trustee and to discuss its affairs, finances, and accounts relating to the
Mortgage Loans with its officers, employees, and independent public
accountants (and by this provision the Master Servicer hereby authorizes said
accountants to discuss with such representative such affairs, finances, and
accounts), all at such reasonable times and as often as may be reasonably
requested. Any out-of-pocket expense incident to the exercise by the
Depositor, the NIM Insurer, or the Trustee of any right under this Section
10.09 shall be borne by the Master Servicer.
Section 10.10. Certificates Nonassessable and Fully Paid.
It is the intention of the Depositor that Certificateholders shall
not be personally liable for obligations of the Trust Fund, that the interests
in the Trust Fund represented by the
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Certificates shall be nonassessable for any reason whatsoever, and that the
Certificates, upon due authentication thereof by the Trustee pursuant to this
Agreement, are and shall be deemed fully paid.
Section 10.11. Official Record.
The Seller agrees that this Agreement is and shall remain at all
times before the time at which this Agreement terminates an official record of
the Seller as referred to in Section 13(e) of the Federal Deposit Insurance
Act.
Section 10.12. Qualifying Special Purpose Entity.
Notwithstanding any other provision to the contrary the Trust shall
not engage in any activity that would disqualify the Trust from being a
qualifying special purpose entity under generally accepted accounting
principles.
Section 10.13. Rights of NIM Insurer.
(a) The rights of the NIM Insurer under this Agreement shall exist
only so long as either
o the notes certain payments on which are guaranteed by the NIM
Insurer remain outstanding or
o the NIM Insurer is owed amounts paid by it with respect to that
guaranty.
The rights of the NIM Insurer under this Agreement are exercisable by the NIM
Insurer only so long as no default by the NIM Insurer under its guaranty of
certain payments under notes backed principally by the Class X and Class P
Certificates has occurred and is continuing. If the NIM Insurer is the subject
of any insolvency proceeding, the rights of the NIM Insurer under this
Agreement will be exercisable by the NIM Insurer only so long as
o the obligations of the NIM Insurer under its guaranty of notes
backed principally by the Class X and Class P Certificates have
not been disavowed and
o the Seller and the Trustee have received reasonable assurances
that the NIM Insurer will be able to satisfy its obligations
under its guaranty of notes backed principally by the Class X
and Class P Certificates.
(b) The NIM Insurer is a third party beneficiary of this Agreement to
it to the same extent as if it were a party to this Agreement, and may enforce
any of those rights under this Agreement.
(c) A copy of any documents of any nature required by this Agreement
to be delivered by the Trustee, or to the Trustee or the Rating Agencies,
shall in each case at the same time also be delivered to the NIM Insurer. Any
notices required to be given by the Trustee, or to the Trustee or the Rating
Agencies, shall in each case at the same time also be given to the NIM
Insurer.
X-7
(d) Anything in this Agreement that is conditioned on not resulting
in the downgrading or withdrawal of the ratings then assigned to the
Certificates by the Rating Agencies shall also be conditioned on not resulting
in the downgrading or withdrawal of the ratings then assigned by the Rating
Agencies to the notes backed principally by the Class X and Class P
Certificates.
X-8
IN WITNESS WHEREOF, the Depositor, the Trustee, and the Seller and
Master Servicer have caused their names to be signed hereto by their
respective officers thereunto duly authorized as of the day and year first
above written.
INDYMAC ABS, INC.
as Depositor
By: /S/ S. Xxxxx Xxxxxxxxx
------------------------------------------
Name: S. Xxxxx Xxxxxxxxx
Title: Executive Vice President
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.
as Trustee
By: /S/ Xxxxx Xxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Associate
INDYMAC BANK, F.S.B.
as Seller and Master Servicer
By: /S/ S. Xxxxx Xxxxxxxxx
------------------------------------------
Name: S. Xxxxx Xxxxxxxxx
Title: Executive Vice President
SCHEDULE I
Mortgage Loan Schedule
[Delivered at Closing to Trustee]
S-I-1
SCHEDULE II
Home Equity Mortgage Loan Asset-Backed Certificates,
Series SPMD 2001-C
Representations and Warranties of the Seller/Master Servicer
Indy Mac Bank, F.S.B. ("IndyMac") hereby makes the representations
and warranties in this Schedule II to the Depositor and the Trustee, as of the
Closing Date, or if so specified herein, as of the Cut-off Date. Capitalized
terms used but not otherwise defined in this Schedule II shall have the
meanings ascribed thereto in the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement") relating to the above-referenced Series, among
IndyMac, as seller and Master Servicer, IndyMac ABS, Inc., as depositor, and
Bankers Trust Company of California, N.A., as trustee.
(1) IndyMac is duly organized as a federally insured savings
bank and is validly existing and in good standing under the laws of
the United States of America and is duly authorized and qualified to
transact any business contemplated by the Pooling and Servicing
Agreement to be conducted by IndyMac in any state in which a
Mortgaged Property is located or is otherwise not required under
applicable law to effect such qualification and, in any event, is in
compliance with the doing business laws of any such state, to the
extent necessary to ensure its ability to enforce each Mortgage
Loan, to service the Mortgage Loans in accordance with the Pooling
and Servicing Agreement and to perform any of its other obligations
under the Pooling and Servicing Agreement in accordance with the
terms thereof.
(2) IndyMac has the full corporate power and authority to sell
and service each Mortgage Loan, and to execute, deliver and perform,
and to enter into and consummate the transactions contemplated by
the Pooling and Servicing Agreement and has duly authorized by all
necessary corporate action on the part of IndyMac the execution,
delivery and performance of the Pooling and Servicing Agreement; and
the Pooling and Servicing Agreement, assuming the due authorization,
execution and delivery thereof by the other parties thereto,
constitutes a legal, valid and binding obligation of IndyMac,
enforceable against IndyMac in accordance with its terms, except
that (a) the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, receivership and other similar laws relating
to creditors' rights generally and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may
be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
(3) The execution and delivery of the Pooling and Servicing
Agreement by IndyMac, the sale and servicing of the Mortgage Loans
by IndyMac under the Pooling
S-II-1
and Servicing Agreement, the consummation of any other of the
transactions contemplated by the Pooling and Servicing Agreement,
and the fulfillment of or compliance with the terms thereof are in
the ordinary course of business of IndyMac and will not (A) result
in a material breach of any term or provision of the charter or
by-laws of IndyMac or (B) materially conflict with, result in a
material breach, violation or acceleration of, or result in a
material default under, any other material agreement or instrument
to which IndyMac is a party or by which it may be bound, or (C)
constitute a material violation of any statute, order or regulation
applicable to IndyMac of any court, regulatory body, administrative
agency or governmental body having jurisdiction over IndyMac
(including the Office of Thrift Supervision, the Federal Deposit
Insurance Corporation or any other governmental entity having
regulatory authority over IndyMac); and IndyMac is not in breach or
violation of any material indenture or other material agreement or
instrument, or in violation of any statute, order or regulation of
any court, regulatory body, administrative agency or governmental
body having jurisdiction over it (including the Office of Thrift
Supervision, the Federal Deposit Insurance Corporation or any other
governmental entity having regulatory authority over IndyMac) which
breach or violation may materially impair IndyMac's ability to
perform or meet any of its obligations under the Pooling and
Servicing Agreement.
(4) Each Servicer is an approved servicer of conventional
mortgage loans for FNMA or FHLMC or is a mortgagee approved by the
Secretary of Housing and Urban Development pursuant to Sections 203
and 211 of the National Housing Act.
(5) No litigation is pending or, to the best of IndyMac's
knowledge, threatened against IndyMac that would prohibit the
execution or delivery of, or performance under, the Pooling and
Servicing Agreement by IndyMac.
S-II-2
SCHEDULE III
Home Equity Mortgage Loan Asset-Backed Certificates,
Series SPMD 2001-C
Representations and Warranties as to the Mortgage Loans
IndyMac Bank, F.S.B. ("IndyMac") hereby makes the representations and
warranties in this Schedule III to the Depositor and the Trustee, as of the
Closing Date or Subsequent Transfer Date, as applicable, or if so specified
herein, as of the related Cut-off Date or date of origination of the Mortgage
Loan (as applicable). Capitalized terms used but not otherwise defined in this
Schedule III shall have the meanings ascribed thereto in the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement") relating to the
above-referenced Series, among IndyMac, as seller and Master Servicer, IndyMac
ABS, Inc., as depositor, and Bankers Trust Company of California, N.A., as
trustee.
(1) The information on Schedule I to the Pooling and Servicing
Agreement with respect to each Mortgage Loan is true and correct in
all material respects as of the Closing Date or Subsequent Transfer
Date, as applicable.
(2) As of the Closing Date, all regularly scheduled monthly
payments due with respect to each Mortgage Loan up to and including
the Due Date before the related Cut-off Date have been made; and as
of the related Cut-off Date, no Mortgage Loan had a regularly
scheduled monthly payment that was 60 or more days Delinquent during
the twelve months before the related Cut-off Date.
(3) With respect to any Mortgage Loan that is not a Cooperative
Loan, each Mortgage is a valid and enforceable first or second lien
on the Mortgaged Property subject only to (a) the lien of
nondelinquent current real property taxes and assessments and liens
or interests arising under or as a result of any federal, state or
local law, regulation or ordinance relating to hazardous wastes or
hazardous substances and, if the related Mortgaged Property is a
unit in a condominium project or planned unit development, any lien
for common charges permitted by statute or homeowner association
fees, (b) covenants, conditions and restrictions, rights of way,
easements and other matters of public record as of the date of
recording of such Mortgage, such exceptions appearing of record
being generally acceptable to mortgage lending institutions in the
area wherein the related Mortgaged Property is located or
specifically reflected in the appraisal made in connection with the
origination of the related Mortgage Loan, and (c) other matters to
which like properties are commonly subject that do not materially
interfere with the benefits of the security intended to be provided
by such Mortgage.
S-III-1
(4) Immediately before the assignment of the Mortgage Loans to
the Depositor, the Seller had good title to, and was the sole owner
of, each Mortgage Loan free and clear of any pledge, lien,
encumbrance or security interest and had full right and authority,
subject to no interest or participation of, or agreement with, any
other party, to sell and assign the same pursuant to the Pooling and
Servicing Agreement.
(5) As of the date of origination of each Mortgage Loan, there
was no delinquent tax or assessment lien against the related
Mortgaged Property.
(6) There is no valid offset, defense or counterclaim to any
Mortgage Note or Mortgage, including the obligation of the Mortgagor
to pay the unpaid principal of or interest on such Mortgage Note.
(7) There are no mechanics' liens or claims for work, labor or
material affecting any Mortgaged Property that are or may be a lien
before, or equal with, the lien of such Mortgage, except those that
are insured against by the title insurance policy referred to in
item (11) below.
(8) To the best of the Seller's knowledge, no Mortgaged
Property has been materially damaged by water, fire, earthquake,
windstorm, flood, tornado or similar casualty (excluding casualty
from the presence of hazardous wastes or hazardous substances, as to
which the Seller makes no representation) so as to affect adversely
the value of the related Mortgaged Property as security for the
Mortgage Loan.
(9) Each Mortgage Loan at origination complied in all material
respects with applicable state and federal laws, including usury,
equal credit opportunity, real estate settlement procedures,
truth-in-lending, HOEPA, and disclosure laws, or any noncompliance
does not have a material adverse effect on the value of the related
Mortgage Loan.
(10) As of the Closing Date or Subsequent Transfer Date, as
applicable, the Seller has not modified the Mortgage in any material
respect (except that a Mortgage Loan may have been modified by a
written instrument that has been recorded or submitted for
recordation, if necessary, to protect the interests of the
Certificateholders and that has been delivered to the Trustee);
satisfied, cancelled or subordinated such Mortgage in whole or in
part; released the related Mortgaged Property in whole or in part
from the lien of such Mortgage; or executed any instrument of
release, cancellation, modification or satisfaction with respect
thereto.
(11) A lender's policy of title insurance together with a
condominium endorsement and extended coverage endorsement, if
applicable, in an amount at least equal to the Cut-off Date
Principal Balance of each the Mortgage Loan or a commitment (binder)
to issue the same was effective on the date of the origination of
each Mortgage Loan, each such policy is valid and remains in full
force and effect.
S-III-2
(12) Each Mortgage Loan was originated (within the meaning of
Section 3(a)(41) of the Securities Exchange Act of 1934, as amended)
by an entity that satisfied at the time of origination the
requirements of Section 3(a)(41) of the Securities Exchange Act of
1934, as amended.
(13) To the best of the Seller's knowledge, all of the
improvements that were included for the purpose of determining the
Appraised Value of the Mortgaged Property lie wholly within the
boundaries and building restriction lines of such property, and no
improvements on adjoining properties encroach upon the Mortgaged
Property, unless such failure to be wholly within such boundaries
and restriction lines or such encroachment, as the case may be, does
not have a material effect on the value of the Mortgaged Property.
(14) To the best of the Seller's knowledge, as of the date of
origination of each Mortgage Loan, no improvement located on or
being part of the Mortgaged Property is in violation of any
applicable zoning law or regulation unless such violation would not
have a material adverse effect on the value of the related Mortgaged
Property. To the best of the Seller's knowledge, all inspections,
licenses and certificates required to be made or issued with respect
to all occupied portions of the Mortgaged Property and, with respect
to the use and occupancy of the same, including certificates of
occupancy and fire underwriting certificates, have been made or
obtained from the appropriate authorities, unless the lack thereof
would not have a material adverse effect on the value of the
Mortgaged Property.
(15) The Mortgage Note and the related Mortgage are genuine,
and each is the legal, valid and binding obligation of the maker
thereof, enforceable in accordance with its terms and under
applicable law.
(16) The proceeds of the Mortgage Loan have been fully
disbursed and there is no requirement for future advances
thereunder.
(17) The related Mortgage contains customary and enforceable
provisions that render the rights and remedies of the holder thereof
adequate for the realization against the Mortgaged Property of the
benefits of the security, including, (i) in the case of a Mortgage
designated as a deed of trust, by trustee's sale, and (ii) otherwise
by judicial foreclosure.
(18) With respect to each Mortgage constituting a deed of
trust, a trustee, duly qualified under applicable law to serve as
such, has been properly designated and currently so serves and is
named in such Mortgage, and no fees or expenses are or will become
payable by the Certificateholders to the trustee under the deed of
trust, except in connection with a trustee's sale after default by
the Mortgagor.
S-III-3
(19) At the related Cut-off Date, the improvements upon each
Mortgaged Property are covered by a valid and existing hazard
insurance policy with a generally acceptable carrier that provides
for fire and extended coverage and coverage for such other hazards
as are customarily required by institutional single family mortgage
lenders in the area where the Mortgaged Property is located, and the
Seller has received no notice that any premiums due and payable
thereon have not been paid; the Mortgage obligates the Mortgagor
thereunder to maintain all such insurance including flood insurance
at the Mortgagor's cost and expense. Anything to the contrary in
this item (19) notwithstanding, no breach of this item (19) shall be
deemed to give rise to any obligation of the Seller to repurchase or
substitute for such affected Mortgage Loan or Loans so long as the
Master Servicer maintains a blanket policy pursuant to the second
paragraph of Section 3.10(a) of the Pooling and Servicing Agreement.
(20) If at the time of origination of each Mortgage Loan, the
related Mortgaged Property was in an area then identified in the
Federal Register by the Federal Emergency Management Agency as
having special flood hazards, a flood insurance policy in a form
meeting the then-current requirements of the Flood Insurance
Administration is in effect with respect to the Mortgaged Property
with a generally acceptable carrier.
(21) To the best of the Seller's knowledge, there is no
proceeding pending or threatened for the total or partial
condemnation of any Mortgaged Property, nor is such a proceeding
currently occurring.
(22) To the best of the Seller's knowledge, there is no
material event that, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a material
non-monetary default, breach, violation or event of acceleration
under the Mortgage or the related Mortgage Note; and the Seller has
not waived any material non-monetary default, breach, violation or
event of acceleration.
(23) Each Mortgage File contains an appraisal of the related
Mortgaged Property in a form acceptable to FNMA or FHLMC.
(24) Any leasehold estate securing a Mortgage Loan has a stated
term at least as long as the term of the related Mortgage Loan.
(25) Each Mortgage Loan was selected from among the outstanding
one- to four-family sub-prime mortgage loans in the Seller's
sub-prime mortgage portfolio at the Closing Date as to which the
representations and warranties made with respect to the Mortgage
Loans in this Schedule III can be made. No such selection was made
in a manner intended to adversely affect the interests of the
Certificateholders.
(26) No more than 1.60% (by aggregate Stated Principal Balance)
of the Mortgage Loans are Cooperative Loans.
S-III-4
(27) Each Cooperative Loan is secured by a valid, subsisting
and enforceable perfected first and second liens (in the case of
Loan Group 1) and first liens only (in the case of Loan Group 2) and
security interest in the related Mortgaged Property, subject only to
(i) the rights of the Cooperative Corporation to collect maintenance
and assessments from the Mortgagor, (ii) the lien of the Blanket
Mortgage on the Cooperative Property and of real property taxes,
water and sewer charges, rents and assessments on the Cooperative
Property not yet due and payable, and (iii) other matters to which
like Cooperative Units are commonly subject that do not materially
interfere with the benefits of the security intended to be provided
by the Security Agreement or the use, enjoyment, value or
marketability of the Cooperative Unit. Each original UCC financing
statement, continuation statement or other governmental filing or
recordation necessary to create or preserve the perfection and
priority of the first priority lien and security interest in the
Cooperative Shares and Proprietary Lease has been timely and
properly made. Any security agreement, chattel mortgage or
equivalent document related to the Cooperative Loan and delivered to
the sponsor or its designee establishes in the Seller a valid and
subsisting perfected first or second lien (in the case of a
Cooperative Loan that is in Loan Group 1) and first lien only (in
the case of a (Cooperative Loan that is in Loan Group 2) on and
security interest in the property described therein, and the Seller
has full right to sell and assign the same.
(28) Each Cooperative Corporation qualifies as a "cooperative
housing corporation" as defined in Section 216 of the Code.
S-III-5
SCHEDULE IV
[Not applicable]
S-IV-1
SCHEDULE V
PREPAYMENT CHARGE SCHEDULE
S-V-1
EXHIBIT A
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
[THIS CLASS OF CERTIFICATES CONSISTS OF SUBORDINATED SECURITIES AND
THEY WILL NOT SATISFY THE REQUIREMENTS OF CERTAIN PROHIBITED TRANSACTION
EXEMPTIONS. AS A RESULT, THE PURCHASE OR HOLDING OF ANY OF THIS CLASS OF
CERTIFICATES BY A PLAN INVESTOR MAY CONSTITUTE A NON-EXEMPT PROHIBITED
TRANSACTION OR RESULT IN THE IMPOSITION OF EXCISE TAXES OR CIVIL PENALTIES
UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA") OR THE CODE. ACCORDINGLY, NONE OF THIS CLASS OF CERTIFICATES ARE
OFFERED FOR SALE, AND ARE NOT TRANSFERABLE, TO PLAN INVESTORS UNLESS AN
EXEMPTION FROM THE PROHIBITED TRANSACTION RULES OF ERISA AND THE CODE APPLIES
TO THE ACQUISITION, HOLDING, AND RESALE OF SUCH CERTIFICATE. EACH PURCHASER OF
THIS CLASS OF CERTIFICATE, BY VIRTUE OF ITS PURCHASE OF SUCH CERTIFICATE, WILL
BE DEEMED TO HAVE REPRESENTED EITHER THAT IT IS NOT A PLAN INVESTOR OR THAT
CERTAIN EXEMPTIONS FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE
CODE APPLY TO THE PLAN INVESTOR'S ACQUISITION, HOLDING, AND RESALE OF SUCH
CERTIFICATES.]
Certificate No. : [ ]
Cut-off Date : November 1, 2001
First Distribution Date : December 26, 2001
Initial Certificate Balance
of this Certificate
("Denomination") : $[__]
Initial Certificate Balances
of all Certificates
of this Class : $[__]
CUSIP : [_______]
INDYMAC ABS, INC.
Home Equity Mortgage Loan Asset-Backed Trust
Home Equity Mortgage Loan Asset-Backed Certificates, Series SPMD 2001-C
Class [ ]
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 Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Seller, the Master 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 ABS, Inc.,
as depositor (the "Depositor"), IndyMac, Inc., as seller (in such capacity,
the "Seller") and as master servicer (in such capacity, the "Master
Servicer"), and Bankers Trust Company of California, N.A., 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.
[The Class [__] Certificates are subordinated securities and they
will not satisfy the requirements of certain prohibited transaction
exemptions. As a result, the purchase or holding of any of the Class M-1
Certificates by a plan investor may constitute a non-exempt prohibited
transaction or result in the imposition of excise taxes or civil penalties
under the Employee Retirement Income Security Act of 1974,
A-2
as amended ("ERISA") or the Code. Accordingly, none of the Class M-1
Certificates are offered for sale, and are not transferable, to plan investors
unless an exemption from the prohibited transaction rules of ERISA and the
Code applies to the acquisition, holding, and resale of such certificate. Each
purchaser of a Class M-1 Certificate, by virtue of its purchase of such
Certificate, will be deemed to have represented either that it is not a plan
investor or that certain exemptions from the prohibited transaction provisions
of ERISA and the Code apply to the plan investor's acquisition, holding, and
resale of such Certificates.]
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
A-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated: [__], 200[_]
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.,
not in its individual Capacity, but
solely as Trustee
By ___________________________
Countersigned:
By ___________________________
Authorized Signatory of
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.,
not in its individual Capacity,
but solely as Trustee
A-4
EXHIBIT B
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").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO THE
EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR A PLAN SUBJECT
TO SECTION 4975 OF THE CODE, OR AN OPINION OF COUNSEL IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE
TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON
BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO THE CODE WITHOUT THE
REPRESENTATION LETTER OR THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS
DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
Certificate No. : [ ]
Cut-off Date : November 1, 2001
First Distribution Date : December 26, 2001
Percentage Interest
of this Certificate
("Denomination") : [ ]%
CUSIP :
INDYMAC ABS, INC.
Home Equity Mortgage Loan Asset-Backed Trust,
Home Equity Mortgage Loan Asset-Backed Certificates, Series SPMD 2001-C
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
Master 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 ABS, Inc.,
as depositor (the "Depositor"), IndyMac, Inc., as seller (in such capacity,
the "Seller") and as master servicer (in such capacity, the "Master
Servicer"), and Bankers Trust Company of California, N.A., 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 Certificate Balance or 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 Corporate Trust
Office or the office or agency maintained by the Trustee.
No transfer of a Certificate of this Class shall be made unless such
disposition is exempt from the registration requirements of the Securities Act
of 1933, as amended (the "1933 Act"), and any applicable state securities laws
or is made in accordance with the 1933 Act and such laws. In the event of any
such transfer, the Trustee shall require the transferor to execute a
transferor certificate (in substantially the form attached to the Pooling and
Servicing Agreement) and deliver either (i) an Investment Letter or the Rule
144A Letter, in either case substantially in the form attached to the
Agreement, or (ii) a written Opinion of Counsel to the Trustee that such
transfer may be made pursuant to an exemption, describing the applicable
exemption and the basis therefor, from the 1933 Act or is being made pursuant
to the 1933 Act, which Opinion of Counsel shall be an expense of the
transferor.
No transfer of a Certificate of this Class shall be made unless the
Trustee shall have received either (i) a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan subject to Section 406 of ERISA or Section 4975 of the
Code, nor a person acting on behalf of any such
B-2
plan, which representation letter shall not be an expense of the Trustee, or
(ii) if the purchaser is an insurance company, a representation that the
purchaser is an insurance company that is purchasing such Certificates with
funds contained in an "insurance company general account" (as such term is
defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE
95-60")) and that the purchase and holding of such Certificates are covered
under PTCE 95-60, or (iii) in the case of a Certificate presented for
registration in the name of an employee benefit plan subject to ERISA, or a
plan or arrangement subject to Section 4975 of the Code (or comparable
provisions of any subsequent enactments), or a trustee of any such plan or any
other person acting on behalf of any such plan or arrangement or using such
plan's or arrangement's assets, an Opinion of Counsel satisfactory to the
Trustee and the Master Servicer, which Opinion of Counsel shall not be an
expense of the Trustee, the Master Servicer or the Trust Fund, addressed to
the Trustee, to the effect that the purchase or holding of such Certificate
will not result in the assets of the Trust Fund being deemed to be "plan
assets" and subject to the prohibited transaction provisions of ERISA and the
Code and will not subject the Trustee or the Master Servicer to any obligation
in addition to those expressly undertaken in this Agreement or to any
liability.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
B-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated: [_______], 200[_]
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.
not in its individual capacity,
but solely as Trustee
By ______________________
Countersigned:
By ___________________________
Authorized Signatory of
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.
not in its individual capacity,
but solely as Trustee
B-4
EXHIBIT C
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED
UNLESS THE PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED
UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER
TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR A PLAN
SUBJECT TO SECTION 4975 OF THE CODE, OR, IF THE PURCHASER IS AN INSURANCE
COMPANY, A REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT
REFERRED TO HEREIN OR AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS
OF THE AGREEMENT REFERRED TO HEREIN. IN THE EVENT THAT SUCH REPRESENTATION IS
VIOLATED, OR ANY ATTEMPT TO TRANSFER TO A PLAN OR ARRANGEMENT SUBJECT TO
SECTION 406 OF ERISA OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR A
PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR ARRANGEMENT OR USING THE ASSETS OF
ANY SUCH PLAN OR ARRANGEMENT, WITHOUT SUCH OPINION OF COUNSEL, SUCH ATTEMPTED
TRANSFER OR ACQUISITION SHALL BE VOID AND OF NO EFFECT.
Certificate No. : [ ]
Cut-off Date : November 1, 2001
Initial Certificate Balance
of this Certificate
("Denomination") : $[__________]
Initial Certificate Balances
of all Certificates of
this Class : $[__________]
CUSIP : [___________]
INDYMAC ABS, INC.
Home Equity Mortgage Loan Asset-Backed Trust,
Home Equity Mortgage Loan Asset-Backed Certificates, Series SPMD 2001-C
Class R
evidencing the distributions allocable to the Class R Certificates
with respect to a Trust Fund consisting primarily of a pool of
fixed-rate and adjustable-rate conventional loans (the "Mortgage
Loans") secured by first liens on one- to four-family residential
properties IndyMac ABS, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Seller, the Master Servicer or the Trustee referred to below or
any of their respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or instrumentality.
This certifies that [___] is the registered owner of the Percentage
Interest (obtained by dividing the Denomination of this Certificate by the
aggregate Initial Certificate Balances of 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 ABS, Inc., as depositor (the "Depositor"),
IndyMac, Inc., as seller (in such capacity, the "Seller") and as master
servicer (in such capacity, the "Master Servicer"), and Bankers Trust Company
of California, N.A., as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Any distribution of the proceeds of any remaining assets of the Trust
Fund will be made only upon presentment and surrender of this Class R
Certificate at the Corporate Trust Office or the office or agency maintained
by the Trustee in New York, New York.
No transfer of a Class R Certificate shall be made unless the Trustee
shall have received either (i) a representation letter from the transferee of
such Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan or
arrangement subject to Section 406 of ERISA, nor a plan or arrangement subject
to Section 4975 of the Code or a person acting on behalf of any such plan or
arrangement nor using the assets of any such plan or arrangement to effect
such transfer, which representation letter shall not be an expense of the
Trustee, the Master Servicer or the Trust Fund, (ii) if the purchaser is an
insurance company, a representation that the purchaser is an insurance company
that is purchasing such Certificates with funds contained in an "insurance
company general account" (as such term is defined in Section V(e) of
Prohibited Transaction
C-2
Class Exemption 95-60 ("PTCE 95-60")) and that the purchase and holding of
such Certificates are covered under PTCE 95-60 or (iii) in the case of any
such Class R Certificate presented for registration in the name of an employee
benefit plan subject to ERISA or a plan or arrangement subject to Section 4975
of the Code (or comparable provisions of any subsequent enactments), or a
trustee of any such plan or arrangement or any other person acting on behalf
of any such plan or arrangement or using such plan's or arrangement's assets,
an Opinion of Counsel satisfactory to the Trustee and the Master Servicer to
the effect that the purchase or holding of such Class R Certificate will not
result in the assets of the Trust Fund being deemed to be "plan assets" and
subject to the prohibited transaction provisions of ERISA and the Code and
will not subject the Trustee or the Master Servicer to any obligation in
addition to those expressly undertaken in the Agreement or to any liability,
which Opinion of Counsel shall not be an expense of the Trustee, the Master
Servicer or the Trust Fund. In the event that such representation is violated,
or any attempt to transfer to a plan or arrangement subject to Section 406 of
ERISA or a plan subject to Section 4975 of the Code, or a person acting on
behalf of any such plan or arrangement or using the assets of any such plan or
arrangement, without such Opinion of Counsel, such attempted transfer or
acquisition shall be void and of no effect.
(i) Each Holder of this Class R Certificate shall be deemed by
the acceptance or acquisition an Ownership Interest in this Class R
Certificate to have agreed to be bound by the following provisions,
and the rights of each Person acquiring any Ownership Interest in
this Class R Certificate are expressly subject to the following
provisions: (i) each Person holding or acquiring any Ownership
Interest in this 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 Ownership
Interest in this Class R Certificate may be registered on the
Closing Date or thereafter transferred, and the Trustee shall not
register the Transfer of this Certificate unless, in addition to the
certificates required to be delivered to the Trustee under Section
5.02(b) of the Agreement, the Trustee shall have been furnished with
a Transfer Affidavit of the initial owner or the proposed transferee
in the form attached as Exhibit I to the Agreement, (iii) each
Person holding or acquiring any Ownership Interest in this Class R
Certificate shall agree (A) to obtain a Transfer Affidavit from any
other Person to whom such Person attempts to Transfer its Ownership
Interest this Class R Certificate, (B) to obtain a Transfer
Affidavit from any Person for whom such Person is acting as nominee,
trustee or agent in connection with any Transfer of this Class R
Certificate and (C) not to Transfer the Ownership Interest in this
Class R Certificate or to cause the Transfer of the Ownership
Interest in this Class R Certificate to any other Person if it has
actual knowledge that such Person is not a Permitted Transferee and
(iv) any attempted or purported Transfer of the Ownership Interest
in this Class R Certificate in violation of the provisions herein
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
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.
C-3
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[ ]
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
not in its individual Capacity, but
solely as Trustee
By ______________________
Countersigned:
By ___________________________
Authorized Signatory of
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.,
not in its individual Capacity,
but solely as Trustee
C-4
EXHIBIT D
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").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO THE
EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR A PLAN SUBJECT
TO SECTION 4975 OF THE CODE, OR AN OPINION OF COUNSEL IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE
TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON
BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO THE CODE WITHOUT THE
REPRESENTATION LETTER OR THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS
DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
Certificate No. : [ ]
Cut-off Date : November 1, 2001
First Distribution Date : December 26, 2001
Percentage Interest
of this Certificate
("Denomination") : [ ]%
CUSIP :
INDYMAC ABS, INC.
Home Equity Mortgage Loan Asset-Backed Trust,
Home Equity Mortgage Loan Asset-Backed Certificates, Series SPMD 2001-C
Class X
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class.
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
Master 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 ABS, Inc.,
as depositor (the "Depositor"), IndyMac, Inc., as seller (in such capacity,
the "Seller") and as master servicer (in such capacity, the "Master
Servicer"), and Bankers Trust Company of California, N.A., 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 Certificate Balance or Pass-Through
Rate and will be entitled to distributions only to the extent set forth in the
Agreement. In addition, any distribution of the proceeds of any remaining
assets of the Trust will be made only upon presentment and surrender of this
Certificate at the Corporate Trust Office or the office or agency maintained
by the Trustee.
No transfer of a Certificate of this Class shall be made unless such
disposition is exempt from the registration requirements of the Securities Act
of 1933, as amended (the "1933 Act"), and any applicable state securities laws
or is made in accordance with the 1933 Act and such laws. In the event of any
such transfer, the Trustee shall require the transferor to execute a
transferor certificate (in substantially the form attached to the Pooling and
Servicing Agreement) and deliver either (i) an Investment Letter or the Rule
144A Letter, in either case substantially in the form attached to the
Agreement, or (ii) a written Opinion of Counsel to the Trustee that such
transfer may be made pursuant to an exemption, describing the applicable
exemption and the basis therefor, from the 1933 Act or is being made pursuant
to the 1933 Act, which Opinion of Counsel shall be an expense of the
transferor.
No transfer of a Certificate of this Class shall be made unless the
Trustee shall have received either (i) a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan subject to Section 406 of ERISA or Section 4975 of the
Code, nor a person acting on behalf of any such plan, which representation
letter shall not be an expense of the Trustee, or (ii) if the purchaser is an
insurance company, a representation that the purchaser is an insurance company
that is purchasing such
D-2
Certificates with funds contained in an "insurance company general account"
(as such term is defined in Section V(e) of Prohibited Transaction Class
Exemption 95-60 ("PTCE 95-60")) and that the purchase and holding of such
Certificates are covered under PTCE 95-60, or (iii) in the case of a
Certificate presented for registration in the name of an employee benefit plan
subject to ERISA, or a plan or arrangement subject to Section 4975 of the Code
(or comparable provisions of any subsequent enactments), or a trustee of any
such plan or any other person acting on behalf of any such plan or arrangement
or using such plan's or arrangement's assets, an Opinion of Counsel
satisfactory to the Trustee and the Master Servicer, which Opinion of Counsel
shall not be an expense of the Trustee, the Master Servicer or the Trust Fund,
addressed to the Trustee, to the effect that the purchase or holding of such
Certificate will not result in the assets of the Trust Fund being deemed to be
"plan assets" and subject to the prohibited transaction provisions of ERISA
and the Code and will not subject the Trustee or the Master Servicer to any
obligation in addition to those expressly undertaken in this Agreement or to
any liability.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
D-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated: [__], 200[ ]
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
not in its individual Capacity, but solely
as Trustee
By ______________________
Countersigned:
By ___________________________
Authorized Signatory of
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.,
not in its individual Capacity,
but solely as Trustee
D-4
EXHIBIT E
INDYMAC ABS, INC.
Home Equity Mortgage Loan Asset-Backed Trust,
Home Equity Mortgage Loan Asset-Backed Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as IndyMac ABS, Inc., Home Equity Mortgage Loan Asset-Backed
Certificates, of the Series specified on the face hereof (herein collectively
called the "Certificates"), and representing a beneficial ownership interest
in the Trust Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account
for payment hereunder and that the Trustee is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is the last Business Day of the month
next preceding the month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days
prior to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any
time by the Depositor, the Master Servicer and the Trustee with the consent of
the Holders of Certificates affected by such amendment evidencing the
requisite Percentage Interest, as
provided in the Agreement. Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof,
in certain limited circumstances, without the consent of the Holders of any of
the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the 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 Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Seller and the Trustee and
any agent of the Depositor or the Trustee may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and
neither the Depositor, the Trustee, nor any such agent shall be affected by
any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the aggregate
Cut-off Date Principal Balances of the Mortgage Loans, the Master Servicer
will have the option to repurchase, in whole, from the Trust Fund all
remaining Mortgage Loans and all property acquired in respect of the Mortgage
Loans at a purchase price determined as provided in the Agreement. The
obligations and responsibilities created by the Agreement will terminate as
provided in Section 9.01 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.
E-2
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
---------------------.
Dated:
Signature by or on behalf of assignor
E-3
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 __________, 200_ before me, a notary public in
and for said State, personally appeared _______________________, known to me
who, being by me duly sworn, did depose and say that he executed the foregoing
instrument.
----------------------
Notary Public
[Notarial Seal]
E-4
EXHIBIT F
[RESERVED]
F-1
EXHIBIT G
FORM OF INITIAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Master Servicer]
[Seller]
____________________
____________________
Re: Pooling and Servicing Agreement among IndyMac ABS, Inc., as
Depositor, IndyMac Bank, F.S.B., as Seller and Master Servicer,
and Bankers Trust Company of California, N.A., as Trustee, Home
Equity Mortgage Loan Asset-Backed Trust, Series SPMD 2001-C,
Home Equity Mortgage Loan Asset-Backed Certificates, Series
SPMD 2001-C [and the Subsequent Transfer Agreement dated as of
[______ __], 2001, among IndyMac ABS, Inc., as Depositor,
IndyMac Bank, F.S.B., as Seller, and Bankers Trust Company of
California, N.A., as Trustee]
----------------------------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), [and the
above-captioned Subsequent Transfer Agreement] the undersigned, as Trustee,
hereby certifies that, as to each [Initial][Subsequent] Mortgage Loan listed
in the Mortgage Loan Schedule (other than any [Initial][Subsequent] Mortgage
Loan listed in the attached schedule), it has received:
(i) the original Mortgage Note, endorsed as provided in the following
form: "Pay to the order of ________, without recourse"; and
(ii) a duly executed assignment of the Mortgage (which may be
included in a blanket assignment or assignments); provided, however, that it
has received no assignment with respect to any Mortgage for which the related
Mortgaged Property is located in the Commonwealth of Puerto Rico.
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to such
[Initial][Subsequent] Mortgage Loan.
G-1
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Trustee makes no representations as to:
(i) the validity, legality, sufficiency, enforceability or genuineness of any
of the documents contained in each Mortgage File of any of the
[Initial][Subsequent] Mortgage Loans identified on the Mortgage Loan Schedule,
or (ii) the collectability, insurability, effectiveness, or suitability of any
such [Initial][Subsequent] Mortgage Loan.
Capitalized words and phrases used herein have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.
as Trustee
By:
------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
G-2
EXHIBIT G-1
FORM OF DELAY DELIVERY CERTIFICATION
[date]
[Depositor]
[Master Servicer]
Re: Pooling and Servicing Agreement among IndyMac ABS, Inc., as
Depositor, IndyMac Bank, F.S.B., as Seller and Master Servicer,
and Bankers Trust Company of California, N.A., as Trustee, Home
Equity Mortgage Loan Asset-Backed Trust, Series SPMD 2001-C,
Home Equity Mortgage Loan Asset-Backed Certificates, Series
SPMD 2001-C [and the Subsequent Transfer Agreement dated as of
[_______ __], 2001, among IndyMac ABS, Inc., as Depositor,
IndyMac Bank, F.S.B., as Seller, and Bankers Trust Company of
California, N.A., as Trustee]
--------------------------------------------------------------
Gentlemen:
[Reference is made to the Initial Certification of Trustee relating
to the above-referenced series, with the schedule of exceptions attached
thereto, delivered by the undersigned, as Trustee, on the Closing Date in
accordance with Section 2.02 of the above-captioned Pooling and Servicing
Agreement.] The undersigned hereby certifies that [, with respect to the
Subsequent Mortgage Loans delivered in connection with the Subsequent Transfer
Agreement,] as to each Delay Delivery Mortgage Loan listed on the Schedule A
attached hereto (other than any [Initial Mortgage Loan][Subsequent Mortgage
Loan] paid in full or listed on Schedule B attached hereto) it has received:
(i) (A) the original Mortgage Note, endorsed by
manual or facsimile signature in blank in the following
form: "Pay to the order of ______________________________
without recourse," with all intervening endorsements showing
a complete chain of endorsement from the originator to the
Person endorsing the Mortgage Note (each such endorsement
being sufficient to transfer all interest of the party so
endorsing, as noteholder or assignee thereof, in that
Mortgage Note) and (B) with respect to any Lost Mortgage
Note, a lost note affidavit from the Seller stating that the
original Mortgage Note was lost or destroyed, together with
a copy of such Mortgage Note;
(ii) a duly executed assignment of the Mortgage
(which may be included in a blanket assignment or
assignments), together with, except as provided below, all
interim recorded assignments of such mortgage (each such
G-3
assignment, when duly and validly completed, to be in
recordable form and sufficient to effect the assignment of
and transfer to the assignee thereof, under the Mortgage to
which the assignment relates); provided that such assignment
of Mortgage need not be delivered in the case of a Mortgage
for which the related Mortgage Property is located in the
Commonwealth of Puerto Rico.
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to the
Mortgage Loan.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any
of the [Initial Mortgage Loans][Subsequent Mortgage Loans] identified on the
[Mortgage Loan Schedule][Loan Number and Borrower Identification Mortgage Loan
Schedule] or (ii) the collectability, insurability, effectiveness or
suitability of any such [Initial Mortgage Loan][Subsequent Mortgage Loan].
Capitalized words and phrases used herein have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.
as Trustee
By:_________________________
Name:
Title:
G-4
EXHIBIT H
FORM OF FINAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Master Servicer]
[Seller]
________________________
________________________
Re: Pooling and Servicing Agreement among IndyMac ABS, Inc., as
Depositor, IndyMac Bank, F.S.B., as Seller and Master Servicer,
and Bankers Trust Company of California, N.A., as Trustee, Home
Equity Mortgage Loan Asset-Backed Trust, Series SPMD 2001-C,
Home Equity Mortgage Loan Asset-Backed Certificates, Series
SPMD 2001-C [and the Subsequent Transfer Agreement dated as of
[_______ __], 2001, among IndyMac ABS, Inc., as Depositor,
IndyMac Bank, F.S.B., as Seller, and Bankers Trust Company of
California, N.A., as Trustee]
-------------------------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement") [and the
above-captioned Subsequent Transfer Agreement], the undersigned, as Trustee,
hereby certifies that as to each [Initial][Subsequent] Mortgage Loan listed in
the Mortgage Loan Schedule (other than any [Initial][Subsequent] Mortgage Loan
paid in full or listed on the attached Document Exception Report) it has
received:
(i) The original Mortgage Note, endorsed in the form provided in
Section 2.01(f) of the Pooling and Servicing Agreement, with all intervening
endorsements showing a complete chain of endorsement from the originator to
the Seller.
(ii) The original recorded Mortgage.
(iii) A duly executed assignment of the Mortgage in the form provided
in Section 2.01(f) of the Pooling and Servicing Agreement; provided, however,
that it has received no assignment with respect to any Mortgage for which the
related Mortgaged Property is located in the Commonwealth of Puerto Rico, or,
if the Depositor has certified or the Trustee otherwise knows that the related
Mortgage has not been returned from the applicable recording office, a
H-1
copy of the assignment of the Mortgage (excluding information to be provided
by the recording office).
(iv) The original or duplicate original recorded assignment or
assignments of the Mortgage showing a complete chain of assignment from the
originator to the Seller.
(v) The original or duplicate original lender's title policy and all
riders thereto or, any one of an original title binder, an original
preliminary title report or an original title commitment, or a copy thereof
certified by the title company.
Based on its review and examination and only as to the foregoing
documents, (a) such documents appear regular on their face and related to such
[Initial][Subsequent] Mortgage Loan, and (b) the information set forth in
items (i), (ii), (iii), (iv), (vi), (xi), and (xiv) of the definition of the
"Mortgage Loan Schedule" in Section 1.01 of the Pooling and Servicing
Agreement accurately reflects information set forth in the Mortgage File.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Trustee makes no representations as to:
(i) the validity, legality, sufficiency, enforceability or genuineness of any
of the documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness or suitability of any such [Initial][Subsequent]
Mortgage Loan. Notwithstanding anything herein to the contrary, the Trustee
has made no determination and makes no representations as to whether (i) any
endorsement is sufficient to transfer all interest of the party so endorsing,
as Noteholder or assignee thereof, in that Mortgage Note or (ii) any
assignment is in recordable form or sufficient to effect the assignment of and
transfer to the assignee thereof, under the Mortgage to which the assignment
relates.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.
as Trustee
By:
----------------------------------
Name:
-------------------------------
Title:
--------------------------------
H-2
EXHIBIT I
TRANSFER AFFIDAVIT
IndyMac ABS, Inc.,
Home Equity Mortgage Loan Asset-Backed Trust, Series SPMD 2001-C
Home Equity Mortgage Loan Asset-Backed Certificates,
Series SPMD 2001-C
STATE OF )
) ss.:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of ____________________________, the
proposed Transferee of an Ownership Interest in a Class AR Certificate (the
"Certificate") issued pursuant to the Pooling and Servicing Agreement, (the
"Agreement"), relating to the above-referenced Series, by and among IndyMac
ABS, Inc., as depositor (the "Depositor"), IndyMac Bank, F.S.B., as seller and
Master Servicer and Bankers Trust Company of California, N.A., as Trustee.
Capitalized terms used, but not defined herein or in Exhibit 1, shall have the
meanings ascribed to such terms in the Agreement. The Transferee has
authorized the undersigned to make this affidavit on behalf of the Transferee.
2. The Transferee is, as of the date hereof, and will be, as of the
date of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate for its own account. The Transferee has
no knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a tax
will be imposed on Transfers of the Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such Transfer is through an agent (which includes a broker, nominee, or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability
for the tax if the Transferee furnishes to such Person an affidavit that such
Transferee is a Permitted Transferee and, at the time of Transfer, such Person
does not have actual knowledge that the affidavit is false.
4. The Transferee has been advised of, and understands that a tax
will be imposed on a "pass-through entity" holding the Certificate if at any
time during the taxable year of the pass-through entity a Person that is not a
Permitted Transferee is the record holder of an interest in such entity. The
Transferee understands that such tax will not be imposed for any period with
respect to which the record holder furnishes to the pass-through entity an
affidavit that such record holder is a Permitted Transferee and the
pass-through entity does not have actual
I-1
knowledge that such affidavit is false. (For this purpose, a "pass-through
entity" includes a regulated investment company, a real estate investment
trust or common trust fund, a partnership, trust or estate, and certain
cooperatives and, except as may be provided in Treasury Regulations, persons
holding interests in pass-through entities as a nominee for another Person.)
5. The Transferee has reviewed Section 5.02(c) of the Agreement
(attached hereto as Exhibit 2 and incorporated herein by reference) and
understands the legal consequences of the acquisition of an Ownership Interest
in the Certificate including the restrictions on subsequent Transfers and the
provisions regarding voiding the Transfer and mandatory sales. The Transferee
expressly agrees to be bound by and to abide by Section 5.02(c) of the
Agreement and the restrictions noted on the face of the Certificate. The
Transferee understands and agrees that any breach of any of the
representations included herein shall render the Transfer to the Transferee
contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any
Person to whom the Transferee attempts to Transfer its Ownership Interest in
the Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth as Exhibit J to the Agreement (a "Transferor Certificate") to
the effect that such Transferee has no actual knowledge that the Person to
which the Transfer is to be made is not a Permitted Transferee.
7. The Transferee does not have the intention to impede the
assessment or collection of any tax legally required to be paid with respect
to the Certificate.
8. The Transferee's taxpayer identification number is
________________.
9. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
10. The Transferee is aware that the Certificate may be a
"noneconomic residual interest" within the meaning of Treasury regulations
promulgated pursuant to the Code and that the transferor of a noneconomic
residual interest will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the
transfer was to impede the assessment or collection of tax.
11. In accordance with Revenue Procedure 2001-12, I.R.B. 2001-2
(December 8, 2000): [Check the statement that applies]:
/__/ the consideration paid to the Transferee for accepting the
Class AR Certificates is greater than the present value of the
anticipated net federal income taxes and tax benefits ("Tax
Liability Present Value") associated with owning the Class AR
Certificates, the present value computed using a discount rate
equal to the "applicable federal rate" prescribed by Section
1274 of the Internal Revenue
I-2
Code as of the date hereof (with all applicable computations
done in accordance with Rev. Proc. 2001-12) or, to the extent
it is not, if the Transferee has asserted that it regularly
borrows, in the ordinary course of its trade or business,
substantial funds from unrelated third parties at a lower
interest rate than the applicable federal rate and the
consideration paid to the Transferee is greater than the Tax
Liability Present Value using that lower interest rate as the
discount rate, the transactions with the unrelated third party
lenders, the interest rate or rates, the date or dates of the
transactions, and the maturity dates or, in the case of
adjustable rate debt instruments, the relevant adjustment dates
or periods, with respect to the borrowings, are accurately
stated in Exhibit A to this letter; or
\__\ the Transferee (i) is an "eligible corporation" as defined in
Section 860L(a)(2) of the Internal Revenue Code, as to which
the income of Class AR Certificates will only be subject to
taxation in the United States, (ii) has, and has had in each of
its two preceding fiscal years, gross assets for financial
reporting purposes (excluding any obligation of a person
related to the transferee within the meaning of Section 860L of
the Internal Revenue Code) in excess of $100 million and net
assets of $10 million, and (iii) agrees only to transfer the
Certificate to another corporation meeting the criteria in this
letter.
12. Either (i) the Transferee is not an employee benefit plan that is
subject to ERISA or a plan that is subject to Section 4975 of the Code, and
the Transferee is not acting on behalf of or investing plan assets of such a
plan, or (ii) the Transferee is an insurance company that is purchasing such
Certificate with funds contained in an "insurance company general account" as
such term is defined in Section V(e) of Prohibited Transaction Class Exemption
95-60 ("PTCE 95-60") and the purchase and holding of such Certificate are
covered under Sections I and III of PTCE 95-60.
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by
its duly authorized officer and its corporate seal to be hereunto affixed,
duly attested, this ____ day of __________________, 20__.
------------------------------------------------
Print Name of Transferee
By:
--------------------------------------
Name:
Title:
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[Corporate Seal]
ATTEST:
------------------------------------
[Assistant] Secretary
Personally appeared before me the above-named ____________, known or
proved to me to be the same person who executed the foregoing instrument and
to be the ______________ of the Transferee, and acknowledged that he executed
the same as his free act and deed and the free act and deed of the Transferee.
Subscribed and sworn before me this ____ day of ________ , 20__.
----------------------------------------
NOTARY PUBLIC
My Commission expires the ____ day of
__________, 20__
I-4
EXHIBIT 1
to EXHIBIT I
Certain Definitions
"Ownership Interest": As to any Certificate, any ownership interest
in the Certificate, including any interest in the Certificate as its Holder
and any other interest in it, whether direct or indirect, legal or beneficial.
"Permitted Transferee": Any Person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality
of any of the foregoing, (ii) a foreign government, International Organization
or any agency or instrumentality of either of the foregoing, (iii) an
organization (except certain farmers' cooperatives described in Code Section
521) that is exempt from tax imposed by Chapter 1 of the Code (including the
tax imposed by Code Section 511 on unrelated business taxable income) on any
excess inclusions (as defined in Code Section 860E(c)(1)) with respect to any
Class AR Certificate, (iv) rural electric and telephone cooperatives described
in Code Section 1381(a)(2)(c), (v) a Person that is not a U.S. Person, and
(vi) any other Person so designated by the Trustee based upon an Opinion of
Counsel that the Transfer of an Ownership Interest in a Class AR Certificate
to such Person may cause the Trust Fund to fail to qualify as a REMIC at any
time that certain Certificates are Outstanding. The terms "United States,"
"State," and "International Organization" have the meanings in Code Section
7701 or successor provisions. A corporation will not be treated as an
instrumentality of the United States or of any State or political subdivision
thereof if all of its activities are subject to tax, and, with the exception
of the FHLMC, a majority of its board of directors is not selected by such
governmental unit.
"Person": Any individual, corporation, partnership, joint venture,
bank, joint stock company, trust (including any beneficiary thereof),
unincorporated organization or government or any agency or political
subdivision thereof.
"Transfer": Any direct or indirect transfer or sale of any Ownership
Interest in a Certificate, including the acquisition of a Certificate by the
Depositor.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"United States Person or U.S. Person": (i) A citizen or resident of
the United States; (ii) a corporation (or entity treated as a corporation for
tax purposes) created or organized in the United States or under the laws of
the United States or of any state thereof, including, for this purpose, the
District of Columbia; (iii) a partnership (or entity treated as a partnership
for tax purposes) organized in the United States or under the laws of the
United States or of any state thereof, including, for this purpose, the
District of Columbia (unless provided otherwise by future Treasury
regulations); (iv) an estate whose income is includible in gross income for
United States income tax purposes regardless of its source; (v) a trust, if a
court within the
I-5
United States is able to exercise primary supervision over the administration
of the trust and one or more U.S. Persons have authority to control all
substantial decisions of the trust; or (vi) to the extent provided in Treasury
regulations, certain trusts in existence on August 20, 1996 that are treated
as U.S. Persons before that date and that elect to continue to be treated as
U.S. Persons.
I-6
EXHIBIT 2
to EXHIBIT I
Section 5.02 (c) of the Agreement
(c) Each Person who has or who acquires any Ownership Interest in the
Residual Certificates shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in
the Residual Certificates shall be a Permitted Transferee and shall
promptly notify the Trustee of any change or impending change in its
status as a Permitted Transferee.
(ii) No Ownership Interest in the Residual Certificates may be
registered on the Closing Date or thereafter transferred, and the
Trustee shall not register the Transfer of any Residual Certificates
unless, in addition to the certificates required to be delivered to
the Trustee under subparagraph (b) above, the Trustee shall have
been furnished with an affidavit (a "Transfer Affidavit") of the
initial owner or the proposed transferee in the form of Exhibit I.
(iii) Each Person holding or acquiring any Ownership Interest
in a Residual Certificate shall agree (A) to obtain a Transfer
Affidavit from any other Person to whom such Person attempts to
Transfer its Ownership Interest in a Residual Certificate, (B) to
obtain a Transfer Affidavit from any Person for whom such Person is
acting as nominee, trustee or agent in connection with any Transfer
of a Residual Certificate and (C) not to Transfer its Ownership
Interest in a Residual Certificate or to cause the Transfer of an
Ownership Interest in a Residual Certificate to any other Person if
it has actual knowledge that such Person is not a Permitted
Transferee.
(iv) Any attempted or purported Transfer of any Ownership
Interest in a Residual Certificate in violation of this Section
5.02(c) shall be absolutely void. If any purported transferee shall
become a Holder of a Residual Certificate in violation of this
Section 5.02(c), then the last preceding Permitted Transferee shall
be restored to all rights as Holder thereof retroactive to the date
of registration of Transfer of such Residual Certificate. The
Trustee shall be under no liability to any Person for any
registration of Transfer of a Residual Certificate that is in fact
not permitted by Section 5.02(b) and this Section 5.02(c) or for
making any payments due on such Certificate to the Holder thereof or
taking any other action with respect to such Holder under this
Agreement so long as the Transfer was registered after receipt of
the related Transfer Affidavit, Transferor Certificate and either
the Rule 144A Letter or the Investment Letter. The Trustee shall be
entitled but not obligated to recover from any Holder of a Residual
Certificate that was in fact not a Permitted Transferee at the time
it became a
I-7
Holder or, at such subsequent time as it became other than a
Permitted Transferee, all payments made on such Residual Certificate
at and after either such time. Any such payments so recovered by the
Trustee shall be paid and delivered by the Trustee to the last
preceding Permitted Transferee of such Certificate.
(v) The Depositor shall use its best efforts to make available,
upon receipt of written request from the Trustee, all information
necessary to compute any tax imposed under Section 860E(e) of the
Code as a result of a Transfer of an Ownership Interest in a
Residual Certificate to any Holder who is not a Permitted
Transferee.
I-8
EXHIBIT J
FORM OF TRANSFEROR CERTIFICATE
__________, 20__
IndyMac ABS, Inc.
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Bankers Trust Company of California, N.A.
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000-0000
Attention: : [___________]
Series SPMD 2001-C
Re: IndyMac ABS, Inc. Home Equity Loan Asset-Backed Trust,
Series SPMD 2001-C, Home Equity Mortgage Loan Asset-Backed
Certificates, Series SPMD 2001-C, Class ___
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we
certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being
disposed by us in a transaction that is exempt from the registration
requirements of the Act, (b) we have not offered or sold any Certificates to,
or solicited offers to buy any Certificates from, any person, or otherwise
approached or negotiated with any person with respect thereto, in a manner
that would be deemed, or taken any other action that would result in, a
violation of Section 5 of the Act and (c) to the extent we are disposing of a
Residual Certificate, we have no knowledge the Transferee is not a Permitted
Transferee.
Very truly yours,
--------------------------------------------
Print Name of Transferor
By:
-----------------------------------
Authorized Officer
J-1
EXHIBIT K
[RESERVED]
K-1
EXHIBIT L
FORM OF RULE 144A LETTER
____________, 20__
IndyMac ABS, Inc.
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Bankers Trust Company of California, N.A.
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000-0000
Attention: : [___________]
Series SPMD 2001-C
Re: Home Equity Mortgage Loan Asset-Backed Trust, Series SPMD
2001-C Home Equity Mortgage Loan Asset-Backed
Certificates, Series SPMD 2001-C, Class [_]
---------------------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is
exempt from the registration requirements of the Act and any such laws, (b) we
have such knowledge and experience in financial and business matters that we
are capable of evaluating the merits and risks of investments in the
Certificates, (c) we have had the opportunity to ask questions of and receive
answers from the Depositor concerning the purchase of the Certificates and all
matters relating thereto or any additional information deemed necessary to our
decision to purchase the Certificates, (d) we are not an employee benefit plan
that is subject to the Employee Retirement Income Security Act of 1974, as
amended, or a plan or arrangement that is subject to Section 4975 of the
Internal Revenue Code of 1986, as amended, nor are we acting on behalf of any
such plan or arrangement nor using the assets of any such plan or arrangement
to effect such acquisition, (e) we have not, nor has anyone acting on our
behalf offered, transferred, pledged, sold or otherwise disposed of the
Certificates, any interest in the Certificates or any other similar security
to, or solicited any offer to buy or accept a transfer, pledge or other
disposition of the Certificates, any interest in the Certificates or any other
similar security from, or otherwise approached or negotiated with respect to
the Certificates, any interest in the Certificates or any other similar
security with, any person in any manner, or made any general solicitation by
means of general advertising or in any other manner, or taken any other
action, that would constitute a distribution of the Certificates under the
Securities Act or that would render the disposition of the Certificates a
violation of Section 5
L-1
of the Securities Act or require registration pursuant thereto, nor will act,
nor has authorized or will authorize any person to act, in such manner with
respect to the Certificates, (f) to the extent that the Certificate
transferred is a Class X Certificate, we are a bankruptcy-remote entity and
(g) we are a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act and have completed either of the forms of
certification to that effect attached hereto as Annex 1 or Annex 2. We are
aware that the sale to us is being made in reliance on Rule 144A. We are
acquiring the Certificates for our own account or for resale pursuant to Rule
144A and further, understand that such Certificates may be resold, pledged or
transferred only (i) to a person reasonably believed to be a qualified
institutional buyer that purchases for its own account or for the account of a
qualified institutional buyer to whom notice is given that the resale, pledge
or transfer is being made in reliance on Rule 144A, or (ii) pursuant to
another exemption from registration under the Securities Act.
L-2
ANNEX 1 TO EXHIBIT L
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because (i) the Buyer owned
or invested on a discretionary basis $____________/1/ in securities (except for
the excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance with Rule 144A
and (ii) the Buyer satisfies the criteria in the category marked below.
____ Corporation, etc. The Buyer is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or
charitable organization described in Section 501(c)(3) of the
Internal Revenue Code of 1986, as amended.
____ Bank. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the
District of Columbia, the business of which is substantially
confined to banking and is supervised by the State or
territorial banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has an audited
net worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached
hereto.
____ Savings and Loan. The Buyer (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, that is
supervised and examined by a State or Federal authority having
supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b)
____________________
1 Buyer must own or invest on a discretionary basis at least $100,000,000
in securities unless Buyer is a dealer, and, in that case, Buyer must own or
invest on a discretionary basis at least $10,000,000 in securities.
L-3
has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a copy
of which is attached hereto.
____ Broker-dealer. The Buyer is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
____ Insurance Company. The Buyer is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and that is subject to supervision by the insurance
commissioner or a similar official or agency of a State,
territory or the District of Columbia.
____ State or Local Plan. The Buyer is a plan established and
maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
____ ERISA Plan. The Buyer is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security
Act of 1974.
____ Investment Advisor. The Buyer is an investment advisor
registered under the Investment Advisors Act of 1940.
____ Small Business Investment Company. Buyer is a small business
investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958.
_____ Business Development Company. Buyer is a business development
company as defined in Section 202(a)(22) of the Investment
Advisors Act of 1940.
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer
is a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned
but subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned or invested on a discretionary basis by the Buyer, the Buyer used the
cost of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence
applies, the securities may be valued at market. Further, in determining such
aggregate amount, the Buyer may have included securities owned by subsidiaries
of the Buyer, but only if such subsidiaries are consolidated with the
L-4
Buyer in its financial statements prepared in accordance with generally
accepted accounting principles and if the investments of such subsidiaries are
managed under the Buyer's direction. However, such securities were not
included if the Buyer is a majority-owned, consolidated subsidiary of another
enterprise and the Buyer is not itself a reporting company under the
Securities Exchange Act of 1934, as amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the
Certificates are relying and will continue to rely on the statements made
herein because one or more sales to the Buyer may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the Buyer
will notify each of the parties to which this certification is made of any
changes in the information and conclusions herein. Until such notice is given,
the Buyer's purchase of the Certificates will constitute a reaffirmation of
this certification as of the date of such purchase. In addition, if the Buyer
is a bank or savings and loan is provided above, the Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after
they become available.
---------------------------------------
Print Name of Transferor
By:
----------------------------
Name:
Title:
Date:
---------------------------
L-5
ANNEX 2 TO EXHIBIT L
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees that are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because Buyer is part of a
Family of Investment Companies, is such an officer of the Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, as
amended and (ii) as marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than
the excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year. For purposes of determining the amount of securities owned
by the Buyer or the Buyer's Family of Investment Companies, the cost of such
securities was used, except (i) where the Buyer or the Buyer's Family of
Investment Companies reports its securities holdings in its financial
statements on the basis of their market value, and (ii) no current information
with respect to the cost of those securities has been published. If clause
(ii) in the preceding sentence applies, the securities may be valued at
market.
_____ The Buyer owned $____________ in securities (other than the
excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
_____ The Buyer is part of a Family of Investment Companies that
owned in the aggregate $________ in securities (other than the
excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two
or more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) securities issued or guaranteed
by the U.S. or any instrumentality thereof, (iii) bank deposit
L-6
notes and certificates of deposit, (iv) loan participations, (v) repurchase
agreements, (vi) securities owned but subject to a repurchase agreement and
(vii) currency, interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, the Buyer will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, the undersigned
will notify the parties listed in the Rule 144A Transferee Certificate to
which this certification relates of any changes in the information and
conclusions herein. Until such notice is given, the Buyer's purchase of the
Certificates will constitute a reaffirmation of this certification by the
undersigned as of the date of such purchase.
__________________________________
Print Name of Buyer or Adviser
By:
---------------------------
Name:
Title:
IF AN ADVISER:
---------------------------------------
Print Name of Buyer
Date:
---------------------------
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EXHIBIT M
REQUEST FOR RELEASE
(for Trustee)
IndyMac ABS, Inc.,
Home Equity Mortgage Loan Asset-Backed Trust, Series SPMD 2001-C
Home Equity Mortgage Loan Asset-Backed Certificates,
Series SPMD 2001-C
Loan Information
Name of Mortgagor
---------------------------------------------
Servicer
Loan No.:
---------------------------------------------
Trustee
Name:
---------------------------------------------
Address:
---------------------------------------------
---------------------------------------------
---------------------------------------------
Trustee
Mortgage File No.:
---------------------------------------------
The undersigned Master Servicer hereby acknowledges that it has
received from Bankers Trust Company of California, N.A., as Trustee for the
Holders of Home Equity Mortgage Loan Asset-Backed Certificates, of the
above-referenced Series, the documents referred to below (the "Documents").
All capitalized terms not otherwise defined in this Request for Release shall
have the meanings given them in the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement") relating to the above-referenced Series
among the Trustee, IndyMac Bank, F.S.B., as Seller and Master Servicer and
IndyMac ABS, Inc., as Depositor.
(__) Mortgage Note dated ____________, ____, in the original principal sum of
$__________, made by __________________. payable to, or endorsed to the
order of, the Trustee.
(__) Mortgage recorded on ________________ as instrument no. __________ in the
County Recorder's Office of the County of ____________, State of
___________ in book/reel/docket __________of
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official records at page/image _______________.
(__) Deed of Trust recorded on ____________ as instrument no. ____________ in
the County Recorder's Office of the County of ___________, State of
__________ in book/reel/docket _____________ of official records at
page/image ___________.
(__) Assignment of Mortgage or Deed of Trust to the Trustee, recorded on
____________, ____, as instrument no. __________ in the County Recorder's
Office of the County of ________, State of _________ in book/reel/docket
_________ of official records at page/image _____________.
(__) Other documents, including any amendments, assignments or other
assumptions of the Mortgage Note or Mortgage.
(__) _____________________________________________________________________
(__) _____________________________________________________________________
(__) _____________________________________________________________________
(__) _____________________________________________________________________
The undersigned Master Servicer hereby acknowledges and agrees as
follows:
(1) The Master Servicer shall hold and retain possession of
the Documents in trust for the benefit of the Trustee, solely for the
purposes provided in the Agreement.
(2) The Master Servicer shall not cause or knowingly permit
the Documents to become subject to, or encumbered by, any claim,
liens, security interest, charges, writs of attachment or other
impositions nor shall the Servicer assert or seek to assert any
claims or rights of setoff to or against the Documents or any
proceeds thereof.
(3) The Master Servicer shall return each and every Document
previously requested from the Mortgage File to the Trustee when the
need therefor no longer exists, unless the Mortgage Loan relating to
the Documents has been liquidated and the proceeds thereof have been
remitted to the Certificate Account and except as expressly provided
in the Agreement.
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(4) The Documents and any proceeds thereof, including any
proceeds of proceeds, coming into the possession or control of the
Master Servicer shall at all times be earmarked for the account of
the Trustee, and the Master Servicer shall keep the Documents and any
proceeds separate and distinct from all other property in the Master
Servicer's possession, custody or control.
INDYMAC BANK, F.S.B.
By: ____________________________________
Its ____________________________________
Date: ________________
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EXHIBIT N
REQUEST FOR RELEASE OF DOCUMENTS
To: Bankers Trust Company of California, N.A. Attn: [____________]
Re: The Pooling & Servicing Agreement dated _______ among IndyMac
Bank, F.S.B., as Master Servicer, Inc, IndyMac ABS, Inc. and
Bankers Trust Company of California, N.A. as Trustee
Ladies and Gentlemen:
In connection with the administration of the Mortgage Loans held by
you as Trustee for IndyMac ABS, Inc., we request the release of the Mortgage
Loan File for the Mortgage Loans described below, for the reason indicated.
FT Account #: Pool #:
Mortgagor's Name, Address and Zip Code:
Mortgage Loan Number:
Reason for Requesting Documents (check one)
_______1. Mortgage Loan paid in full (IndyMac hereby certifies that all
amounts have been received.)
_______2. Mortgage Loan Liquidated (IndyMac hereby certifies that all proceeds
of foreclosure, insurance, or other liquidation have been finally received.)
_______3. Mortgage Loan in Foreclosure.
_______4. Other (explain): ____________________________________
If item 1 or 2 above is checked, and if all or part of the Mortgage
File was previously released to us, please release to us our previous receipt
on file with you, as well as an additional documents in your possession
relating to the above-specified Mortgage Loan. If item 3 or 4 is checked, upon
return of all of the above documents to you as Trustee, please acknowledge
your receipt by signing in the space indicated below, and returning this form.
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INDYMAC BANK, F.S.B. 000 Xxxxx Xxxx Xxx.
Xxxxxxxx XX 00000
By:______________________________
Name:
Title:
Date:___________________
TRUSTEE CONSENT TO RELEASE AND
ACKNOWLEDGMENT OF RECEIPT
By:______________________________
Name:
Title:
Date:___________________
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EXHIBIT O
[RESERVED]
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EXHIBIT Q
FORM OF SUBSEQUENT TRANSFER AGREEMENT
Subsequent Transfer Agreement, dated as of March [__], 2001, among
IndyMac ABS, Inc., a Delaware corporation, as depositor (the "Depositor"),
IndyMac Bank, F.S.B., a federal savings bank ("IndyMac Bank"), in its capacity
as seller under the Pooling and Servicing Agreement referred to below (the
"Seller"), and Bankers Trust Company of California, N.A., as trustee (the
"Trustee").
WITNESSETH:
WHEREAS, the Depositor, IndyMac Bank (in its capacity as Seller and
in its capacity as Master Servicer) and the Trustee are parties to the pooling
and servicing agreement dated as of November 1, 2001 (the "Pooling and
Servicing Agreement") relating to the Home Equity Mortgage Loan Asset-Backed
Certificates, Series SPMD 2001-C; and
WHEREAS, as contemplated in the Pooling and Servicing Agreement, the
Seller desires to convey certain Subsequent Mortgage Loans to the Depositor,
and the Depositor desires to simultaneously convey the Subsequent Mortgage
Loans to the Trustee for the benefit of the Certificateholders;
NOW, THEREFORE, the parties hereto hereby agree as follows:
Section 1.01. Defined Terms.
Capitalized terms used herein that are not otherwise defined have the
meanings given to them in Pooling and Servicing Agreement.
"Agreement" means this Subsequent Transfer Agreement and all
amendments hereof and supplements hereto.
"Subsequent Mortgage Loans" means the Mortgage Loans identified on
the Mortgage Loan Schedule specified in Section 1.02.
"Subsequent Transfer Date" means, with respect to this Agreement,
March [__], 2000.
"Cut-off Date" means, with respect to each of the Subsequent Mortgage
Loans, the later of March 1, 2001 and its date of origination.
Section 1.02. Mortgage Loan Schedule.
Annexed hereto is a supplement to Schedule I to the Pooling and
Servicing Agreement listing the Subsequent Mortgage Loans to be conveyed by
the Seller to the Depositor and simultaneously by the Depositor to the Trustee
pursuant to the Pooling and Servicing Agreement and this Agreement on the
Subsequent Transfer Date and an updated Prepayment Charge Schedule.
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Section 1.03. Conveyance of Subsequent Mortgage Loans by the Seller.
Subject to the conditions in Section 1.05 and Section 1.06, in
consideration of the Trustee's delivery to or upon the order of the Seller of
$________ (i.e., an amount not greater than the aggregate Cut-off Date
Principal Balance of the Subsequent Mortgage Loans), the Seller does hereby
sell, transfer, assign and otherwise convey to the Depositor, without recourse
(subject to the Seller's obligations hereunder) all of the Seller's interest
in the Subsequent Mortgage Loans, including all interest and principal
received or receivable by the Seller on or with respect to each Subsequent
Mortgage Loan after the related Cut-off Date and all interest and principal
payments on each Subsequent Mortgage Loan received before such related Cut-off
Date in respect of installments of interest and principal due thereafter, but
not including payments of principal and interest due and payable on each
Subsequent Mortgage Loan by such related Cut-off Date, and the Depositor
simultaneously does hereby sell, transfer, assign, set over and otherwise
convey to the Trustee for the benefit of the Certificateholders, without
recourse, all the interest of the Depositor in each Subsequent Mortgage Loan,
including all interest and principal received or receivable by the Depositor
on or with respect to each Subsequent Mortgage Loan after the related Cut-off
Date and all interest and principal payments on each Subsequent Mortgage Loan
received before such related Cut-off Date in respect of installments of
interest and principal due thereafter, but not including payments of principal
and interest due and payable on each Subsequent Mortgage Loan by such related
Cut-off Date.
Section 1.04. Allocation of the Amounts to be Released from the Pre-Funding
Account.
Of the $________ (i.e., an amount not greater than the aggregate
Cut-off Date Principal Balance of the Subsequent Mortgage Loans), released by
the Trustee pursuant to Section 1.03, the Trustee shall release $__________
(i.e., an amount not greater than the aggregate Cut-off Date Principal Balance
of the Subsequent Mortgage Loans transferred to Loan Group 1 pursuant to this
Agreement) from the Pre-Funding Account.
Section 1.05. Representations and Warranties of Seller.
The Seller does hereby reaffirm the representations and warranties in
Section 2.03 and on Schedules II and III of the Pooling and Servicing
Agreement for the benefit of the Depositor and the Trustee as purchasers
hereunder are true with respect to the Subsequent Mortgage Loans. Such
representations and warranties shall survive the sale, transfer, and
assignment of the Subsequent Mortgage Loans to the Depositor and the
simultaneous sale, transfer, and assignment of the Subsequent Mortgage Loans
to the Trustee.
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Section 1.06. Representations and Warranties of Depositor.
The Depositor does hereby reaffirm the representations and warranties
in Section 2.04 of the Pooling and Servicing Agreement for the benefit of the
Trustee as purchaser hereunder are true with respect to the Subsequent
Mortgage Loans. Such representations and warranties shall survive the sale,
transfer and assignment of the Subsequent Mortgage Loans to the Trustee.
Section 1.07. Conditions Precedent.
The obligation of the Trustee to acquire the Subsequent Mortgage
Loans hereunder is subject to the satisfaction, by the Subsequent Transfer
Date, of the conditions precedent identified in Section 2.09(b).
The Trustee shall not be required to investigate or otherwise verify
satisfaction of the conditions listed above, but shall be entitled to
conclusively rely upon Opinions of Counsel and Officer's Certificates
confirming such fulfillment.
Section 1.08. Reaffirmation of Agreement.
All terms of the Pooling and Servicing Agreement are hereby
reaffirmed and incorporated by reference by the Seller as to the Subsequent
Mortgage Loans.
Section 1.09. Governing Law.
This Agreement shall be construed in accordance with the laws of the
State of New York and the obligations, rights and remedies of the parties
under this Agreement shall be determined in accordance with such laws;
provided, however, the immunities, authority, and standard of care of the
Trustee shall be governed by the jurisdiction in which its Corporate Trust
Office is located.
Section 1.09. NIM Insurer.
The NIM Insurer is a third party beneficiary of this Agreement to the
same extent as if it were a party to this Agreement, and may enforce any of
those rights under this Agreement.
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IN WITNESS WHEREOF, the Seller and the Trustee have caused this
Agreement to be duly executed and delivered by their respective duly
authorized officers as of the day and the year first above written.
INDYMAC BANK, F.S.B.
as Seller
By: __________________________
Name:
Title:
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.
not in its individual capacity,
but solely as Trustee
By: __________________________
Name:
Title:
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[Supplement to Mortgage Loan Schedule]
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