EXHIBIT 99.1
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EXECUTION COPY
INDYMAC ABS, INC.,
Depositor
INDYMAC BANK, F.S.B.,
Seller and Master Servicer
and
THE BANK OF NEW YORK,
Trustee
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POOLING AND SERVICING AGREEMENT
Dated as of July 1, 2000
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HOME EQUITY MORTGAGE LOAN ASSET-BACKED TRUST,
SERIES SPMD 2000-B
HOME EQUITY MORTGAGE LOAN ASSET-BACKED CERTIFICATES,
SERIES SPMD 2000-B
Table of Contents
Page
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ARTICLE I
DEFINITIONS
ARTICLE II
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...............................................6
Section 2.03. Representations, Warranties and Covenants of the Seller and the Master Servicer..............10
Section 2.04. Representations and Warranties of the Depositor as to the Mortgage Loans.....................12
Section 2.05. Delivery of Opinion of Counsel in Connection with Substitutions and Repurchases..............12
Section 2.06. Execution and Delivery of Certificates.......................................................13
Section 2.07. REMIC Matters................................................................................13
Section 2.08. Covenants of the Master Servicer.............................................................13
ARTICLE III
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 the Subservicers..............................2
Section 3.03. [Reserved]....................................................................................2
Section 3.04. No Contractual Relationship Between Subservicers and the Trustee..............................2
Section 3.05. Trustee to Act as Master Servicer.............................................................2
Section 3.06. Collection of Mortgage Loan Payments; Servicing Accounts; Collection Account;
Certificate Account; Distribution Account and Pre-Funding Accounts............................3
Section 3.07. Collection of Taxes, Assessments and Similar Items; Escrow Accounts...........................8
Section 3.08. Access to Certain Documentation and Information Regarding the Mortgage Loans..................8
Section 3.09. Permitted Withdrawals from the Certificate Account, the Distribution Account and the
Excess Reserve Fund Account...................................................................9
Section 3.10. Maintenance of Hazard Insurance; Maintenance of Primary Insurance Policies...................10
Section 3.11. Enforcement of Due-On-Sale Clauses; Assumption Agreements....................................12
Section 3.12. Realization Upon Defaulted Mortgage Loans; Repurchase of Certain Mortgage Loans..............13
Section 3.13. Trustee to Cooperate; Release of Mortgage Files..............................................16
Section 3.14. Documents, Records and Funds in Possession of the Master Servicer to be Held for the
Trustee......................................................................................17
Section 3.15. Servicing Compensation.......................................................................18
Section 3.16. Access to Certain Documentation..............................................................18
Section 3.17. Annual Statement as to Compliance............................................................18
Section 3.18. Annual Independent Public Accountants' Servicing Statement; Financial Statements.............19
Section 3.19. Errors and Omissions Insurance; Fidelity Bonds...............................................19
ARTICLE IV
DISTRIBUTIONS AND ADVANCES BY THE MASTER SERVICER
Section 4.01. Advances......................................................................................1
Section 4.02. Priorities of Distribution....................................................................1
Section 4.03. Monthly Statements to Certificateholders......................................................4
Section 4.04. [Reserved]....................................................................................6
Section 4.05. [Reserved]....................................................................................6
Section 4.06. [Reserved]....................................................................................6
Section 4.07. Certain Matters Relating to the Determination of LIBOR........................................6
ARTICLE V
THE CERTIFICATES
Section 5.01. The Certificates..............................................................................1
Section 5.02. Certificate Register; Registration of Transfer and Exchange of Certificates...................1
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.............................................6
Section 5.04. Persons Deemed Owners.........................................................................6
Section 5.05. Access to List of Certificateholders' Names and Addresses.....................................6
Section 5.06. Maintenance of Office or Agency...............................................................7
ARTICLE VI
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
ARTICLE VII
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 VIII
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........................................................5
Section 8.10. Appointment of Co-Trustee or Separate Trustee.................................................5
Section 8.11. Tax Matters...................................................................................7
Section 8.12. Periodic Filings..............................................................................9
Section 8.13. Corresponding Classes.........................................................................9
ARTICLE IX
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...........................................................2
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01. Amendment.....................................................................................1
Section 10.02. Recordation of Agreement; Counterparts........................................................2
Section 10.03. Governing Law.................................................................................2
Section 10.04. Intention of Parties..........................................................................3
Section 10.05. Notices.......................................................................................3
Section 10.06. Severability of Provisions....................................................................4
Section 10.07. Assignment....................................................................................4
Section 10.08. Limitation on Rights of Certificateholders....................................................4
Section 10.09. Inspection and Audit Rights...................................................................5
Section 10.10. Certificates Nonassessable and Fully Paid.....................................................5
SCHEDULES
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Schedule I: Mortgage Loan Schedule.................................................................... S-I-1
Schedule II: Representations and Warranties of the
Seller/Master Servicer.................................................................... S-II-1
Schedule III: Representations and Warranties as to
the Mortgage Loans........................................................................S-III-1
Schedule IV: Planned Balanced Schedules.................................................................S-IV-1
EXHIBITS
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Exhibit A: Form of Class A, M and B Certificate..........................................................A-1
Exhibit B: [Reserved]....................................................................................B-1
Exhibit C: Form of Class R Certificate...................................................................C-1
Exhibit D: Form of Class X Certificate...................................................................D-1
Exhibit E: Form of Reverse of Certificates...............................................................E-1
Exhibit F: [Reserved]....................................................................................F-1
Exhibit G: Form of Initial Certification of Trustee......................................................G-1
Exhibit H: Form of Final Certification of Trustee........................................................H-1
Exhibit I: Form of Transfer Affidavit....................................................................I-1
Exhibit J: Form of Transferor Certificate................................................................J-1
Exhibit K: [Reserved]....................................................................................K-1
Exhibit L: Form of Rule 144A Letter......................................................................L-1
Exhibit M: Form of Request for Release (for Trustee).....................................................M-1
Exhibit N: Form of Request for Release (Mortgage Loan
Paid in Full, Repurchased and Released).......................................................N-1
Exhibit O: [Reserved]....................................................................................O-1
Exhibit Q: Form of Subsequent Transfer Agreement.........................................................Q-1
THIS POOLING AND SERVICING AGREEMENT, dated as of July 1,
2000, among INDYMAC ABS, INC., a Delaware corporation, as depositor (the
"Depositor"), INDYMAC BANK, F.S.B. ("IndyMac"), a federal savings bank, as
seller (in such capacity, the "Seller") and as master servicer (in such
capacity, the "Master Servicer"), and THE BANK OF NEW YORK, a banking
corporation organized under the laws of the State of New York, as trustee (the
"Trustee"),
WITNESSETH THAT
In consideration of the mutual agreements herein contained,
the parties hereto agree as follows:
PRELIMINARY STATEMENT
The Trustee shall elect that the Trust Fund be treated for federal
income tax purposes as comprising two REMICs (each a "REMIC" or, in the
alternative, the Lower Tier REMIC and the Upper Tier REMIC, respectively).
Each Certificate, other than the Class R Certificate, represents ownership of
a regular interest in the Upper Tier REMIC for purposes of the REMIC
Provisions. The Class R Certificate represents ownership of the sole class of
residual interest in each of the Lower Tier REMIC and the Upper Tier REMIC for
purposes of the REMIC Provisions. The Startup Day for each REMIC described
herein is the Closing Date. The latest possible maturity date for each
Certificate is the latest date referenced in Section 9.01. The Upper Tier
REMIC shall hold as assets the several classes of uncertificated Lower Tier
Regular Interests, set out below. Each such Lower Tier Regular Interest is
hereby designated as a regular interest in the Lower Tier REMIC.
Lower Tier Class Lower Tier Interest Rate Initial Lower Tier
---------------- ------------------------ ------------------
Designation Principal Amount
----------- ----------------
Class LT-C (1) 63,504,319
Class LT-AF-1 (1) 56,291,000
Class LT-MF-1 (1) 2,038,500
Class LT-MF-2 (1) 2,038,000
Class LT-BF (1) 1,568,000
Class LT-D (2) 89,026,081
Class LT-AV-1 (2) 72,442,000
Class LT-MV-1 (2) 4,364,000
Class LT-MV-2 (2) 4,582,000
Class LT-BV (2) 4,145,500
Class LT-E (1) 100
Class LT-R (3) (3)
(1) The interest rate with respect to any Distribution Date for these
interests is a per annum variable rate equal to the Group 1 WAC Cap.
(2) The interest rate with respect to any Distribution Date for these
interests is a per annum variable rate equal to the Group 2 WAC Cap.
(3) The Class LT-R Interest is the sole class of residual interest in the
Lower Tier REMIC and it does not have a principal amount or an
interest rate.
The Lower Tier REMIC shall hold as assets all of the assets included
in the Trust Fund other than the Group 1 Pre-Funding Account, the Group 2
Pre-Funding Account, the Group 1 Capitalized Interest Account, the Group 2
Capitalized Interest Account, the Excess Reserve Fund Account, and the Lower
Tier Regular Interests.
With respect to any Distribution Date, interest that accrues on the
Class LT-C Interest at the Pass-Through Rate shown above shall be deferred and
added to the principal balance of the Class LT-C Interest in an amount equal
to 50% of any increase in the Subordinated Amount for the Group 1Certificates
for such Distribution Date.
With respect to any Distribution Date, Available Funds with respect
to the Mortgage Loans in Loan Group 1 shall be applied to pay interest that
accrues on the Class LT-AF-1, Class LT-MF-1, Class LT-MF-2, Class LT-BF-1,
Class LT-E, and Class LT-C Interests at the Pass-Through Rates shown above,
other than the interest deferred on the Class LT-C Interest in the manner
described in the preceding paragraph.
With respect to any Distribution Date, interest that accrues on the
Class LT-D Interest at the Pass-Through Rate shown above will be deferred and
added to the principal balance of the Class LT-D Interest in an amount equal
to 50% of any increase in the Subordinated Amount for the Group 2 Certificates
for such Distribution Date.
With respect to any Distribution Date, Available Funds with respect
to the Mortgage Loans in Loan Group 2 shall be applied to pay interest that
accrues on the Class LT-AV-1, Class LT-MV-1, Class LT-MV-2, Class LT-BV-1, and
Class LT-D Interests at the Pass-Through Rates shown above, other than the
interest deferred on the Class LT-D Interest in the manner described in the
preceding paragraph.
With respect to any Distribution Date, Available Funds with respect
to Mortgage Loans in Loan Group 1 not applied to pay interest shall be first
distributed on the Class LT-E interest until its balance is reduced to zero,
and then, shall be distributed to, and losses shall be allocated among, the
Class LT-AF-1, Class LT-MF-1, Class LT-MF-2, Class LT-BF and Class LT-C
Interests in a manner such that, immediately following such Distribution Date,
the principal balance of each of the Class LT-AF-1, Class LT-MF-1, Class
LT-MF-2, and Class LT-BF Interests equals 50% of its Corresponding Class of
Upper Tier REMIC Regular Interest.
With respect to any Distribution Date, Available Funds with respect
to Mortgage Loans in Loan Group 2 not applied to pay interest shall be
distributed to, and losses shall be allocated among, the Class LT-AV-1, Class
LT-MV-1, Class LT-MV-2, Class LT-BV, and Class LT-D Interests in a manner such
that, immediately following such Distribution Date, the principal balance of
each of the Class LT-AV-1, Class LT-MV-1, Class LT-MV-2, and Class LT-BV
Interests equals 50% of its Corresponding Class of Upper Tier REMIC Regular
Interest.
The Upper Tier REMIC shall issue the following classes of interests
and each Upper Tier Interest, other than the Class UT-R Interest, is hereby
designated as a regular interest in the Upper Tier REMIC.
Upper Tier Class Upper Tier Interest Initial Upper Tier Corresponding
---------------- ------------------- ------------------ -------------
Designation Rate Principal Amount Certificate
----------- ---- ---------------- -----------
Class AF-1 (1) $112,582,000 Class AF-1
Class MF-1 (1) 4,077,000 Class MF-1
Class MF-2 (1) 4,076,000 Class MF-2
Class BF (1) 3,3136,000 Class BF
Class AV-1 (2) 144,884,000 Class AV(7)
Class MV-1 (2) 8,728,000 Class MV-1(7)
Class MV-2 (2) 9,165,000 Class MV-2(7)
Class BV (2) 8,291,000 Class BV(7)
Class XF (3) (3) Class X(5)
Class XV (4) (4) Class X(5)
Class UT-R (6) 100 Class R
(1) With respect to any Distribution Date, the rate at which interest is
payable on these interests will be the lesser of the rate shown above
or the Group 1 WAC Cap. Following the Optional Termination Date, the
stated per annum Pass-Through Rates shown above will increase by
0.50% (50 basis points).
(2) The Class AV-1, Class MV-1, Class MV-2 and Class BV Interests will
bear interest during their initial Interest Accrual Period at 6.91%,
7.25%, 7.67% and 8.62%, respectively, per annum. The Class AV-1,
Class MV-1, Class MV-2 and Class BV Interests will bear interest
during each Interest Accrual Period thereafter at a per annum rate
equal to the least of (i) LIBOR plus 0.29%, 0.63%, 1.05% and 2.00%,
respectively, (ii) the Group 2 Maximum Cap, and (iii) the Group 2 WAC
Cap. Following the Optional Termination Date, the Pass-Through Margin
for the Class AV-1 Certificates shall be doubled and the Pass-Through
Margin for Group 2 Subordinated Certificates shall increase by 1.5
times.
(3) The Class XF Interest has an initial principal balance of $1,568,819,
but it will not accrue interest on such balance but will accrue
interest on a notional principal balance. As of any Distribution
Date, the Class XF Interest shall have a notional principal balance
equal to the aggregate of the principal balances of the Lower Tier
Fixed Rate Regular Interests, other than the Class LT-E interest, as
of the first day of the related Interest Accrual Period. With respect
to any Interest Accrual Period, the Class XF Interest shall bear
interest at a rate equal to the excess, if any, of the Group 1 WAC
Cap over the product of (i) 2 and (ii) the Adjusted Lower Tier Fixed
Rate WAC. With respect to any Distribution Date, interest that so
accrues on the notional balance of the Class XF Interest shall be
deferred in an amount equal to any increase in the Subordinated
Amount for the Group 1 Certificates on such Distribution Date. Such
deferred interest shall not itself bear interest.
(4) The Class XV Interest has an initial principal balance of $3,492,081,
but it will not accrue interest on such balance but will accrue
interest on a notional principal balance. As of any Distribution
Date, the Class XV Interest shall have a notional principal balance
equal to the aggregate of the principal balances of the Lower Tier
Adjustable Rate Regular Interests as of the first day of the related
Interest Accrual Period. With respect to any Interest Accrual Period,
the Class XV Interest shall bear interest at a rate equal to the
excess, if any, of the Group 2 WAC Cap over the product of (i) 2 and
(ii) the Adjusted Lower Tier Adjustable Rate WAC. With respect to any
Distribution Date, interest that so accrues on the notional balance
of the Class XV Interest shall be deferred in an amount equal to any
increase in the Subordinated Amount for the Group 2 Certificates on
such Distribution Date. Such deferred interest shall not itself bear
interest.
(5) The Class XF and the Class XV Interests are non-severable components
of the Class X Certificate.
(6) The Class UT-R Interest is the sole class of residual interest in the
Upper Tier REMIC. The Class UT-R Interest does not have an interest
rate.
(7) Each of these Certificates will represent not only the ownership of
the Corresponding Class of Upper Tier Regular Interest but also the
right to receive payments from the Excess Reserve Fund Account in
respect of any Basis Risk CarryForward Amounts. For federal income
tax purposes, the Trustee will treat a Certificateholder's right to
receive payments from the Excess Reserve Fund Account as payments
made pursuant to an interest rate cap contract written by the Class X
Certificateholder.
The minimum denomination for each Class of Certificates, other than
the Class R and the Class X Certificates, will be $25,000. The Class R and the
Class X Certificates will each represent a 100% Percentage Interest in such
class.
Set forth below are designations of Classes of Certificates
to the categories used herein:
Book-Entry Certificates.......................... All Classes of Certificates other than the Physical
Certificates.
Group 1
Certificates................................... Class AF-1, Class MF-1, Class MF-2, Class BF and Class R
Certificates.
Group 2
Certificates................................... Class AV-1, Class MV-1, Class MV-2 and Class BV Certificates.
Group 1
Class A Certificates........................... Class AF-1 Certificates.
Group 2
Class A Certificates........................... Class AV-1 Certificates.
Group 1
Mezzanine Certificates......................... Class MF-1 and Class
MF-2 Certificates.
Group 2
Mezzanine Certificates......................... Class MV-1 and Class
MV-2 Certificates.
Group 1
Subordinated Certificates...................... Group 1 Mezzanine Certificates
and Class BF Certificates.
Group 2
Subordinated Certificates...................... Group 2 Mezzanine Certificates
and Class BV Certificates.
Adjustable Rate Certificates..................... Group 2 Certificates.
Fixed Rate Certificates.......................... Class AF-1, Class MF-1, Class MF-2 and
Class BF Certificates.
Delay Certificates............................... All interest-bearing Classes of Certificates other than the
Non-Delay Certificates, if any.
ERISA-Restricted
Certificates................................... Subordinated Certificates, Class R Certificates and Class X
Certificate.
Floating Rate Certificates....................... Adjustable Rate Certificates.
LIBOR Certificates............................... Adjustable Rate Certificates.
Mezzanine Certificates........................... Class MF-1, Class MF-2, Class MV-1 and Class MV-2
Certificates.
Non-Delay Certificates........................... Adjustable Rate Certificates.
Offered Certificates............................. All Classes of Certificates other than the Private
Certificates.
Physical Certificates............................ Class X and Class R Certificates.
Private Certificates............................. Class X Certificate.
Rating Agencies.................................. S&P and Fitch.
Regular Certificates............................. All Classes of Certificates other than the Class R
Certificates.
Residual Certificates............................ Class R Certificates.
Subordinated Certificates........................ Mezzanine Certificates, Class BF Certificates and Class BV
Certificates.
References herein to "Class A," "Class M-1," "Class X-0,"
"Xxxxx X," "Mezzanine Certificates" and "Subordinated Certificates" are
references to Certificates of either or both Certificate Groups of similar
designations, as the context requires.
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and
phrases, unless the context otherwise requires, shall have the following
meanings:
Accrued Certificate Interest Distribution Amount: With
respect to any Distribution Date for each Class of Certificates (other than
the Class X Certificate), the amount of interest accrued during the related
Interest Accrual Period at the applicable Pass-Through Rate on the related
Class Certificate Balance immediately prior to such Distribution Date.
Adjusted Lower Tier Adjustable Rate WAC: With respect to any
Interest Accrual Period, the weighted average of the interest rates on the
Lower Tier Adjustable Rate Regular Interests determined for this purpose by
first subjecting the rate payable on the Class LT-D Interest to a cap of zero
and subjecting the rate payable on each of the Class LT-AV-1, Class LT-MV-1,
Class LT-MV-2, and Class LT-BV Interests to a cap equal to LIBOR plus the
Margin that corresponds to the Pass-Through Margin used in computing the
Pass-Through Rate on the Corresponding Class of Certificates.
Adjusted Lower Tier Fixed Rate WAC: With respect to any
Interest Accrual Period, the weighted average of the interest rates on the
Lower Tier Fixed Rate Regular Interests determined for this purpose by first
subjecting the rate payable on the Class LT-C Interest to a cap of zero,
subjecting the rate payable on each of the Class LT-AF-1, Class LT-MF-1, Class
LT-MF-2, and Class LT-BF Interests to a cap that corresponds to the
Pass-Through Rate payable on the Corresponding Class of Certificates.
Adjusted Mortgage Rate: As to each Mortgage Loan and at any
time, the per annum rate equal to the Mortgage Rate less the Master Servicing
Fee Rate.
Adjusted Net Mortgage Rate: As to each Mortgage Loan and at
any time, the per annum rate equal to the Mortgage Rate less the Expense Fee
Rate.
Adjustment Date: As to any Mortgage Loan in Loan Group 2,
the first Due Date on which the related Mortgage Rate adjusts as set forth in
the related Mortgage Note and each Due Date thereafter on which the Mortgage
Rate adjusts as set forth in the related Mortgage Note.
Advance: As to a Loan Group, the payment required to be made
by the Master Servicer with respect to any Distribution Date pursuant to
Section 4.01, the amount of any such payment being equal to the aggregate of
payments of principal and interest (net of the Master Servicing Fee and net of
any net income in the case of any REO Property) on the Mortgage Loans in such
Loan Group that were due during the related Remittance Period and not received
as of the close of business on the related Determination Date, less the
aggregate amount of any such delinquent payments that the Master Servicer has
determined would constitute a Nonrecoverable Advance if advanced.
Agreement: This Pooling and Servicing Agreement and all
amendments or supplements hereto.
Amount Held for Future Distribution: As to the Certificates
in either Certificate Group on any Distribution Date, the aggregate amount
held in the Certificate Account at the close of business on the related
Determination Date on account of (i) Principal Prepayments and Liquidation
Proceeds on the Mortgage Loans in the related Loan Group received after the
end of the related Remittance Period and (ii) all Scheduled Payments on the
Mortgage Loans in the related Loan Group due after the end of the related
Remittance Period.
Applied Realized Loss Amount: With respect to any
Distribution Date, the amount, if any, by which, (i) with respect to the Group
1 Certificates, the aggregate Class Certificate Balance of the Group 1
Certificates after distributions of principal on such Distribution Date
exceeds the aggregate Stated Principal Balance of the Mortgage Loans in Loan
Group 1 as of the last day of the immediately preceding Remittance Period plus
the amount in the related Pre-Funding Account, if any, excluding investment
earnings, and (ii) with respect to the Group 2 Certificates, the aggregate
Class Certificate Balance of the Group 2 Certificates after distributions of
principal on such Distribution Date exceeds the aggregate Stated Principal
Balance of the Mortgage Loans in Loan Group 2 as of the last day of the
immediately preceding Remittance Period plus the amount in the related
Pre-Funding Account, if any.
Available Funds: With respect to any Distribution Date and
the Mortgage Loans in a Loan Group (x) the sum of (i) all scheduled
installments of interest (net of the related Expense Fees) and principal due
on the Due Date on such Mortgage Loans in the related Remittance Period and
received prior to the related Determination Date, together with any Advances
in respect thereof; (ii) all Insurance Proceeds and Liquidation Proceeds
during the related Remittance Period (in each case, net of unreimbursed
expenses incurred in connection with a liquidation or foreclosure and
unreimbursed Advances, if any); (iii) all partial or full prepayments on the
Mortgage Loans in such Loan Group received during the related Remittance
Period together with all Compensating Interest thereon; (iv) the related
Unutilized Pre-Funding Amount; (v) the related Capitalized Interest
Requirement and (vi) amounts received with respect to such Distribution Date
as the Substitution Adjustment Amount or purchase price in respect of a
Deleted Mortgage Loan in such Loan Group or a Mortgage Loan repurchased by the
Seller or the Master Servicer in such Loan Group as of such Distribution Date;
reduced by (y) (i) amounts in reimbursement for Advances previously made with
respect to the Mortgage Loans in such Loan Group and other amounts as to which
the Master Servicer is entitled to be reimbursed pursuant to the Agreement
with respect to such Loan Group and (ii) the Trustee's Fee allocated to such
Loan Group.
Basic Principal Distribution Amount: With respect to any
Distribution Date and Loan Group, the excess of (i) the related Principal
Remittance Amount for such Distribution Date over (ii) the related Excess
Subordinated Amount, if any, for such Distribution Date.
Basis Risk CarryForward Amount: With respect to each Class
of Group 2 Certificates, as of any Distribution Date, the sum of (A) if on
such Distribution Date the Pass-Through Rate for any Class of Group 2
Certificates is based upon the Group 2 WAC Cap, the excess of (i) the amount
of interest such Class of Group 2 Certificates would otherwise be entitled to
receive on such Distribution Date had such rate been calculated as the sum of
LIBOR and the applicable Pass-Through Margin on such Class of Group 2
Certificates for such Distribution Date, up to the Group 2 Maximum Cap over
(ii) the amount of interest payable on such Class of Group 2 Certificates at
the Group 2 WAC Cap for such Distribution Date and (B) the Basis Risk
CarryForward Amount for such 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 such
Class of Group 2 Certificates for such Distribution Date, subject to the Group
2 Maximum Cap.
Basis Risk Payment: For any Distribution Date, an amount
equal to the sum of (i) any Basis Risk CarryForward Amount and (ii) the
Required Reserve Amount for that date, provided, however, that with respect to
any Distribution Date, the payment cannot exceed the sum of the amounts
otherwise distributable on the Class X Certificates.
Blanket Mortgage: The mortgage or mortgages encumbering a
Cooperative Property.
Book-Entry Certificates: As specified in the Preliminary
Statement.
Business Day: Any day other than (i) a Saturday or a Sunday,
or (ii) a day on which banking institutions in the City of New York, New York,
or the State of California or the city in which the Corporate Trust Office of
the Trustee is located are authorized or obligated by law or executive order
to be closed.
Capitalized Interest Account: Either of the Group 1
Capitalized Interest Account or the Group 2 Capitalized Interest Account.
Capitalized Interest Requirement: With respect to the
Distribution Date in August and September 2000 and Loan Group 1, the product
of (a) the excess of the Pre-Funding Amount for Loan Group 1 on the Closing
Date over the Principal Balance of any Subsequent Mortgage Loan transferred to
the Trust Fund for Loan Group 1 during the related Due Period or a prior Due
Period that has a Monthly Payment due during such Due Period and (b) a
fraction, the numerator of which is the weighted average of the Pass-Through
Rates on the Group 1 Certificates for such Distribution Date and the
denominator of which is 12. With respect to the Distribution Date in August
and September 2000 and Loan Group 2, the product of (a) the excess of the
Pre-Funding Amount for Loan Group 2 on the Closing Date over the Principal
Balance of any Subsequent Mortgage Loan transferred to the Trust Fund for Loan
Group 2 during the related Due Period or a prior Due Period that has a Monthly
Payment due during such Due Period and (b) a fraction, the numerator of which
is the weighted average of the Pass-Through Rates on the Group 2 Certificates
for such Distribution Date and the denominator of which is 12.
Certificate: Any one of the Certificates executed by the
Trustee in substantially the forms attached hereto 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 2000-B".
Certificate Balance: With respect to any Class of
Certificates, other than the Class X Certificate, at any date, the maximum
dollar amount of principal to which the Holder thereof is then entitled
hereunder, such amount being equal to the Denomination thereof minus all
distributions of principal previously made with respect thereto and in the
case of any Subordinated Certificates, reduced by any Applied Realized Loss
Amounts applicable to such Class of Subordinated Certificates. The Class X
Certificate has no Certificate Balance.
Certificate Group: Any of the Certificate Group 1
Certificates or the Certificate Group 2 Certificates, as applicable.
Certificate Owner: With respect to a Book-Entry Certificate,
the Person who is the beneficial owner of such 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
shall be deemed not to be 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 such consent has been
obtained; provided, however, that if any such Person (including the Depositor)
owns 100% of the Percentage Interests evidenced by a Class of Certificates,
such Certificates shall be deemed to be Outstanding for purposes of any
provision hereof that requires the consent of the Holders of Certificates of a
particular Class as a condition to the taking of any action hereunder. The
Trustee is entitled to rely conclusively on a certification of the Depositor
or any affiliate of the Depositor in determining which Certificates are
registered in the name of an affiliate of the Depositor.
Class: All Certificates bearing the same class designation
as set forth in the Preliminary Statement.
Class A Principal Distribution Amount: With respect to each
Loan Group and any Distribution Date, the excess of (i) the aggregate Class
Certificate Balance of the Class A Certificates for the related Certificate
Group immediately prior to such Distribution Date over (ii) the lesser of (A)
79.50% for Loan Group 1 and 66.00% for Loan Group 2, of the aggregate Stated
Principal Balance of the Mortgage Loans in the related Loan Group as of the
last day of the related Remittance Period and (B) the Stated Principal
Balances of the Mortgage Loans in the related Loan Group as of the last day of
the related Remittance Period minus $627,199.59 with respect to Loan Group 1
and $872,800.41 with respect to Loan Group 2.
Class B Principal Distribution Amount: With respect to each
Loan Group and any Distribution Date, the excess of (i) the sum for the
related Certificate Group of (A) the aggregate Class Certificate Balance of
the Class A Certificates (after taking into account distribution of the Class
A Principal Distribution Amount on such 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 such
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 for such Distribution Date), and (D) the Class
Certificate Balance of the Class B Certificates immediately prior to such
Distribution Date over (ii) the lesser of (A) 97.50% for Loan Group 1 and
96.00% for Loan Group 2, of the aggregate Stated Principal Balance of the
Mortgage Loans in the related Loan Group as of the last day of the related
Remittance Period and (B) the Stated Principal Balances of the Mortgage Loans
in the related Loan Group as of the last day of the related Remittance Period
minus $627,199.59 with respect to Loan Group 1 and $872,800.41 with respect to
Loan Group 2, provided, however, that with respect to any Distribution Date on
which the Class Certificate Balances of the related Class A, Class M-1 and
Class M-2 Certificates have been reduced to zero, the Class B Principal
Distribution Amount is the lesser of (x) the Class Certificate Balance of the
Class B Certificates and (y) the related Principal Distribution Amount.
Class Certificate Balance: With respect to any Class and as
to any date of determination, the aggregate of the Certificate Balances of all
Certificates of such Class as of such date.
Class M-1 Principal Distribution Amount: With respect to
each Loan Group and any Distribution Date, the excess of (i) the sum for the
related Certificate Group of (A) the aggregate Class Certificate Balance of
the Class A Certificates (after taking into account distribution of the Class
A Principal Distribution Amount on such Distribution Date), and (B) the Class
Certificate Balance of the Class M-1 Certificates immediately prior to such
Distribution Date over (ii) the lesser of (A) 86.00% for Loan Group 1 and
76.00% for Loan Group 2, of the aggregate Stated Principal Balance of the
Mortgage Loans in the related Loan Group as of the last day of the related
Remittance Period and (B) the Stated Principal Balances of the Mortgage Loans
in the related Loan Group as of the last day of the related Remittance Period
minus $627,199.59 with respect to Loan Group 1 and $872,800.41 with respect to
Loan Group 2.
Class M-2 Principal Distribution Amount: With respect to
each Loan Group and any Distribution Date, the excess of (i) the sum for the
related Certificate Group of (A) the aggregate Class Certificate Balance of
the Class A Certificates (after taking into account distribution of the Class
A Principal Distribution Amount on such 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 such
Distribution Date) and (C) the Class Certificate Balance of the Class M-2
Certificates immediately prior to such Distribution Date over (ii) the lesser
of (A) 92.50% for Loan Group 1 and 86.50% for Loan Group 2, of the aggregate
Stated Principal Balance of the Mortgage Loans in the related Loan Group as of
the last day of the related Remittance Period and (B) the Stated Principal
Balances of the Mortgage Loans in the related Loan Group as of the last day of
the related Remittance Period minus $627,199.59 with respect to Loan Group 1
and $872,800.41 with respect to Loan Group 2.
Class X Distributable Amount: On any Distribution Date, the
amount of interest that has accrued on the Class XF and Class XV Regular
Interests and any portion of the principal balance of either the Class XF or
Class XV Regular Interests which is distributable as a Subordination Reduction
Amount plus Prepayment Charges and Master Servicer Prepayment Charge Payment
Amounts, if any.
Closing Date: July 28, 2000.
Code: The Internal Revenue Code of 1986, including any
successor or amendatory provisions.
Collateral Value: With respect to any Mortgage Loan, the
Collateral Value of the related Mortgaged Property shall be, other than with
respect to 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 such Mortgage Loan and (ii) the
sales price for such Mortgaged Property. In the case of Refinance Loans, the
Collateral Value of the related Mortgaged Property is the appraised value
thereof determined in an appraisal obtained at the time of refinancing.
Collection Account: As defined in Section 3.06(b).
Combined Loan-to-Value Ratio: For any Mortgage Loan at any
time, shall be the ratio expressed as a percentage of (i) the sum of (a) the
original principal balance of such Mortgage Loan and (b) the outstanding
principal balance at the date of origination of such Mortgage Loan of any
senior mortgage loan(s), or in the case of any open-ended senior mortgage
loan, the maximum available line of credit with respect to such mortgage loan
at origination, regardless of any lesser amount actually outstanding at the
date of origination of such Mortgage Loan, to (ii) the Collateral Value of
such Mortgage Loan.
Compensating Interest: For any Distribution Date, an amount
equal to 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 which 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 New York at which at any particular time its corporate trust
business with respect to this Agreement shall be administered, which office at
the date of the execution of this Agreement is located at 000 Xxxxxxx Xxxxxx,
00X, Xxx Xxxx, Xxx Xxxx 00000 (Attn: Mortgage-Backed Securities Group, IndyMac
ABS, Inc., Home Equity Mortgage Loan Asset-Backed Trust, Series SPMD 2000-B),
facsimile no. (000) 000-0000 and which is the address to which notices to and
correspondence with the Trustee should be directed.
Corresponding Class: The class of interests in any REMIC
created under this Agreement that correspond to the Class of interests in
another such REMIC or to a Class of Certificates in the manner set out below:
Lower Tier Class
----------------
Designation Upper Tier Interest Corresponding Certificate
----------- ------------------- -------------------------
Class LT-AF-1 Class AF-1 Class AF-1
Class LT-MF-1 Class MF-1 Class MF-1
Class LT-MF-2 Class MF-2 Class MF-2
Class LT-BF Class BF Class BF
Class LT-AV-1 Class AV-1 Class AV-1
Class LT-MV-1 Class MV-1 Class MV-1
Class LT-MV-2 Class MV-2 Class MV-2
Class LT-BV Class BV Class BV
Cut-off Date: For each Initial Mortgage Loan, July 1, 2000;
for each Subsequent Mortgage Loan, August 1, 2000.
Cut-off Date Pool Principal Balance: For any Cut-off Date,
the aggregate Stated Principal Balance of all Mortgage Loans as of such date.
Cut-off Date Principal Balance: As to any Mortgage Loan, the
Stated Principal Balance thereof as of the close of business on the related
Cut-off Date.
Debt Service Reduction: With respect to any Mortgage Loan, a
reduction by a court of competent jurisdiction in a proceeding under the
Bankruptcy Code in the Scheduled Payment for such Mortgage Loan which became
final and non-appealable, except such a reduction resulting from a Deficient
Valuation or any reduction 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 which is required
to be repurchased pursuant to Section 2.02 or 2.03.
Deficient Valuation: With respect to 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 such court which is final and
non-appealable in a proceeding under the Bankruptcy Code.
Definitive Certificates: Any Certificate evidenced by a
Physical Certificate and any Certificate issued in lieu of a Book-Entry
Certificate pursuant to Section 5.02(e).
Delay Certificates: As specified in the Preliminary
Statement.
Delay Delivery Mortgage Loans: (i) The Initial Mortgage
Loans identified on the Mortgage Loan Schedule for which all or a portion of a
related Mortgage File is not delivered to the Trustee on or prior to the
Closing Date, and (ii) all Subsequent Mortgage Loans. The Depositor shall
deliver (or cause delivery of) the Mortgage Files to the Trustee: (A) with
respect to at least 70% of the Initial Mortgage Loans, not later than the
Closing Date, (B) with respect to at least 90% of the Subsequent Mortgage
Loans conveyed on a Subsequent Transfer Date, not later than twenty one days
after such Subsequent Transfer Date, and (C) with respect to the remaining 30%
of the Initial Mortgage Loans, not later than five Business Days after the
Closing Date, and not later than thirty days after the relevant Subsequent
Transfer Date with respect to the remaining 10% of the Subsequent Mortgage
Loans conveyed on the related Subsequent Transfer Date. To the extent that the
Seller shall be in possession of any Mortgage Files with respect to any Delay
Delivery Loan, until delivery to of such Mortgage File to the Trustee as
provided in Section 2.01, the Seller shall hold such files as Master Servicer
hereunder, as agent and in trust for the Trustee.
Deleted Mortgage Loan: As defined in Section 2.03(c).
Denomination: With respect to each Certificate, the amount
set forth on the face thereof as the "Initial Certificate Balance of this
Certificate" or the Percentage Interest appearing on the face thereof.
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 such 18th day is not a Business Day the next
succeeding Business Day; provided, however, that if such next succeeding
Business Day is less than two Business Days prior to the related Distribution
Date, then the Determination Date shall be the next Business Day preceding the
18th day of such month.
Distribution Account: The separate Eligible Account created
and maintained by the Trustee pursuant to Section 3.06(e) in the name of the
Trustee for the benefit of the Certificateholders and designated "The Bank of
New York in trust for registered holders of IndyMac Home Equity Mortgage Loan
Asset-Backed Certificates, Series SPMD 2000-B". 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 immediately preceding such
Distribution Date.
Distribution Date: The 25th day of each calendar month after
the initial issuance of the Certificates, or if such 25th day is not a
Business Day, the next succeeding Business Day, commencing in August 2000.
Due Date: With respect to any Mortgage Loan, the day of the
month on which a Scheduled Payment is due which is the first day of the month.
Eligible Account: Any of (i) an account or accounts
maintained with a federal or state chartered depository institution or trust
company the short-term unsecured debt obligations of which (or, in the case of
a depository institution or trust company that is the principal subsidiary of
a holding company, the debt obligations of such holding company, 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 or accounts in a depository institution or trust company in which such
accounts are 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 with
respect to the funds in such account or a perfected first priority security
interest against any collateral (which shall be limited to Permitted
Investments) securing such funds that is superior to claims of any other
depositors or creditors of the depository institution or trust company in
which such account is maintained, or (iii) a trust account or accounts
maintained with the trust department of a federal or state chartered
depository institution or trust company, acting in its fiduciary capacity or
(iv) any other account acceptable to each Rating Agency. Eligible Accounts may
bear interest, and may include, if otherwise qualified under this definition,
accounts maintained with the Trustee.
ERISA: The Employee Retirement Income Security Act of 1974,
as amended.
ERISA-Qualifying Underwriting: A best efforts or firm
commitment underwriting or private placement that meets the requirements of
Prohibited Transaction Exemption 97-34, 62 Fed. Reg. 39021 (1997), as amended
(or any successor thereto), or any substantially similar administrative
exemption granted by the U.S. Department of Labor (an "Underwriter's
Exemption").
ERISA-Restricted Certificate: As specified in the
Preliminary Statement.
Escrow Account: The Eligible Account or Accounts established
and maintained pursuant to Section 3.07(a).
Event of Default: As defined in Section 7.01.
Excess Proceeds: With respect to any Liquidated Mortgage
Loan, the amount, if any, by which the sum of any Liquidation Proceeds of such
Mortgage Loan received in the calendar month in which such Mortgage Loan
became a Liquidated Mortgage Loan, net of any amounts previously reimbursed to
the Master Servicer as Nonrecoverable Advance(s) with respect to such Mortgage
Loan pursuant to Section 3.09(a)(ii), exceeds (i) the unpaid principal balance
of such Liquidated Mortgage Loan as of the Due Date in the month in which such
Mortgage Loan became a Liquidated Mortgage Loan plus (ii) accrued interest at
the Mortgage Rate from the Due Date as to which interest was last paid or
advanced (and not reimbursed) to Certificateholders up to the Due Date
applicable to the Distribution Date immediately following the calendar month
during which such liquidation occurred.
Excess Reserve Fund Account: The separate Eligible Account
created and maintained by the Trustee pursuant to Section 3.06(d) in the name
of the Trustee for the benefit of the Adjustable Rate Certificateholders and
designated "The Bank of New York in trust for registered holders of IndyMac
Home Equity Mortgage Loan Asset-Backed Trust, Series SPMD 2000-B". Funds in
the Excess Reserve Fund Account shall be held in trust for the Adjustable Rate
Certificateholders for the uses and purposes set forth in this Agreement.
Excess Subordinated Amount: With respect to a Certificate
Group and any Distribution Date, the excess, if any, of (a) the related
Subordinated Amount on such Distribution Date over (b) the related Specified
Subordinated Amount for such Distribution Date.
Expense Fees: As to each Mortgage Loan, the sum of the
related Master Servicing Fee, Servicing Fee, Trustee Fee and, if applicable,
the 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 and either Certificate Group, the lesser of (x) the related Total Monthly
Excess Spread for such Distribution Date and (y) the related Subordination
Deficiency for such 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 as follows:
Final Scheduled
Payment Date
-------------------
Class AF-1 Certificates.............................. July 25, 2030
Class MF-1 Certificates.............................. May 25, 2030
Class MF-2 Certificates.............................. March 25, 2030
Class BF Certificates................................ December 25, 2029
Class AV-1 Certificates.............................. July 25, 2030
Class MV-1 Certificates.............................. June 25, 2030
Class MV-2 Certificates.............................. June 25, 2030
Class BV Certificates................................ April 25, 2030
Class R Certificates September 25, 2030
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 2000-B, or such other address as Fitch may hereafter furnish to the
Depositor and the Master Servicer.
FNMA: The Federal National Mortgage Association, a federally
chartered and privately owned corporation organized and existing under the
Federal National Mortgage Association Charter Act, or any successor thereto.
Group 1 Certificates: As specified in the Preliminary
Statement.
Group 1 Capitalized Interest Account: The separate Eligible
Account created and maintained by the Trustee pursuant to Section 3.06 in the
name of the Trustee for the benefit of the Certificateholders and designated
"The Bank of New York, in trust for registered holders of IndyMac Home Equity
Mortgage Loan Asset-Backed Certificates, Series SPMD 2000-B". Funds in the
Group 1 Capitalized Interest Account shall be held in trust for the
Certificateholders for the uses and purposes set forth in this Agreement and
shall not be a part of any REMIC created hereunder, provided, however that any
investment income earned from Permitted Investments made with funds in the
Group 1 Capitalized Interest Account will be for the account of the Seller.
Group 1 Pre-Funding Account: The separate Eligible Account
created and maintained by the Trustee pursuant to Section 3.06 in the name of
the Trustee for the benefit of the Certificateholders and designated "The Bank
of New York, in trust for registered holders of IndyMac Home Equity Mortgage
Loan Asset-Backed Certificates, Series SPMD 2000-B" allocated for the purchase
of Subsequent Mortgage Loans to be included in Loan Group 1. Funds in the
Group 1 Pre-Funding Account shall be held in trust for the Certificateholders
for the uses and purposes set forth in this Agreement and shall not be a part
of any REMIC created hereunder.
Group 1 WAC Cap: With respect to the Mortgage Loans in Loan
Group 1 as of any Distribution Date, the weighted average of the Adjusted Net
Mortgage Rates in effect on the beginning of the related Remittance Period for
such Mortgage Loans.
Group 2 Certificates: As specified in the Preliminary
Statement.
Group 2 Capitalized Interest Account: The separate Eligible
Account created and maintained by the Trustee pursuant to Section 3.06 in the
name of the Trustee for the benefit of the Certificateholders and designated
"The Bank of New York, in trust for registered holders of IndyMac Home Equity
Mortgage Loan Asset-Backed Certificates, Series SPMD 2000-B". Funds in the
Group 2 Capitalized Interest Account shall be held in trust for the
Certificateholders for the uses and purposes set forth in this Agreement and
shall not be a part of any REMIC created hereunder, provided, however that any
investment income earned from Permitted Investments made with funds in the
Group 2 Capitalized Interest Account will be for the account of the Seller.
Group 2 Pre-Funding Account: The separate Eligible Account
created and maintained by the Trustee pursuant to Section 3.05 in the name of
the Trustee for the benefit of the Certificateholders and designated "The Bank
of New York, in trust for registered holders of IndyMac Home Equity Mortgage
Loan Asset-Backed Certificates, Series SPMD 2000-B" allocated for the purchase
of Subsequent Mortgage Loans to be included in Loan Group 2. Funds in the
Group 2 Pre-Funding Account shall be held in trust for the Certificateholders
for the uses and purposes set forth in this Agreement and shall not be a part
of any REMIC created hereunder.
Group 2 Maximum Cap: With respect to the Mortgage Loans in
Loan Group 2 as of any Distribution Date, the weighted average of the Maximum
Rates on the Mortgage Loans in Loan Group 2 less the Expense Fee Rate.
Group 2 WAC Cap: With respect to the Mortgage Loans in Loan
Group 2 as of any Distribution Date, the product of (1) the weighted average
of the Adjusted Net Mortgage Rates then in effect on the beginning of the
related Remittance Period on the Mortgage Loans in Loan Group 2 and (ii) a
fraction, the numerator of which is 30 and the denominator of which is the
actual number of days in the Interest Accrual Period for the Group 2
Certificates related to such Distribution Date.
Index: As to each Mortgage Loan in Loan Group 2, the index
from time to time in effect for the adjustment of the Mortgage Rate set forth
as such on the related Mortgage Note.
Indirect Participant: A broker, dealer, bank or other
financial institution or other Person that clears through or maintains a
custodial relationship with a Depository Participant.
Initial Mortgage Loan: Such of the mortgage loans
transferred and assigned to the Trustee pursuant to the provisions hereof, as
from time to time are held as a part of the Trust Fund (including any REO
Property), the mortgage loans so held being identified on the Mortgage Loan
Schedule as of the Closing Date, notwithstanding foreclosure or other
acquisition of title of the related Mortgaged Property.
Insurance Policy: With respect to any Mortgage Loan included
in the Trust Fund, any insurance policy, including all riders and endorsements
thereto in effect, including any replacement policy or policies for any
Insurance Policies.
Insurance Proceeds: Proceeds paid by an insurer pursuant to
any Insurance Policy, in each case other than any amount included in such
Insurance Proceeds in respect of Insured Expenses.
Insured Expenses: Expenses covered by an Insurance Policy or
any other insurance policy with respect to the Mortgage Loans.
Interest Accrual Period: With respect to each Class of Delay
Certificates and the Corresponding Class of Lower Tier Regular Interests and
any Distribution Date, the calendar month prior to the month of such
Distribution Date. For purposes of computing accrual of interest on each Class
of Delay Certificates and each Class of Lower Tier Regular Interests, each
month is assumed to have 30 days and each year is assumed to have 360 days.
With respect to each Class of Non-Delay Certificates and the Corresponding
Class of Lower Tier Regular Interests and any Distribution Date, the period
commencing on the 25th day of the month preceding the month in which such
Distribution Date occurs and ending on the 24th day of the month in which such
Distribution Date occurs (or in the case of the first Distribution Date, the
period from and including the Closing Date to but excluding such first
Distribution Date). For purposes of computing interest accruals on each Class
of Non-Delay Certificates, each Interest Accrual Period has the actual number
of days in such month and each year is assumed to have 360 days.
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: With respect to 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 as such rate appears on Telerate Page 3750 as of 11:00 a.m. (London
time) on such date; provided that if such rate does not appear on Telerate
Page 3750, the rate for such 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 such date to prime banks in the
London interbank market. In such event, 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 such quotations are 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 such date for
one-month U.S. dollar loan to leading European banks.
LIBOR Certificates: As specified in the Preliminary
Statement.
LIBOR Determination Date: With respect to any Interest
Accrual Period (other than the initial Interest Accrual Period) for the LIBOR
Certificates, the second London Business Day preceding the commencement of
such Interest Accrual Period.
Liquidated Mortgage Loan: With respect to any Distribution
Date, a defaulted Mortgage Loan (including any REO Property) which was
liquidated in the calendar month preceding the month of such 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 such Mortgage Loan including the final
disposition of an REO Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds,
received in connection with the partial or complete liquidation of defaulted
Mortgage Loans, whether through trustee's sale, foreclosure sale or otherwise
or amounts received in connection with any condemnation or partial release of
a Mortgaged Property and any other proceeds received in connection with an REO
Property, less the sum of related unreimbursed Master 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 which have Mortgage Rates
that are fixed.
Loan Group 2: All Mortgage Loans which have Mortgage Rates
that are adjustable.
Loan-to-Value Ratio: With respect to any Mortgage Loan and
as of any date of determination, is the fraction, expressed as a percentage,
the numerator of which is the original principal balance of the related
Mortgage Loan at such date of determination and the denominator of which is
the Collateral Value of the related Mortgaged Property.
London Business Day: Any day on which dealings in deposits
of United States dollars are transacted in the London interbank market.
Lost Mortgage Note: Any Mortgage Note the original of which
was permanently lost or destroyed and has not been replaced.
Lower Tier Adjustable Rate Regular Interest: Each of the
Class LT-AV-1, Class LT-MV-1, Class LT-MV-2, and Class BV Interests as
described in the Preliminary Statement.
Lower Tier Fixed Rate Regular Interest: Each of the Class
LT-AF-1, Class LT-MF-1, Class LT-MF-2, and Class LT-BF Interests as described
in the Preliminary Statement.
Lower Tier Regular Interests: Each of the Lower Tier
Adjustable Rate Regular Interests and the Lower Tier Fixed Rate Regular
Interests.
Lower Tier REMIC: As described in the Preliminary Statement
Maintenance: With respect to 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 such Class evidencing, in the
aggregate, at least 51% of the Percentage Interests evidenced by all
Certificates of such Class.
Margin: As to each Mortgage Loan, the percentage amount set
forth on the related Mortgage Note added to the Index in calculating the
Mortgage Rate thereon.
Master Servicer: IndyMac Bank, F.S.B., a federal savings
bank, and its successors and assigns, in its capacity as master servicer
hereunder.
Master Servicer Advance Date: As to any Distribution Date,
12:30 p.m. Pacific time on the Business Day immediately preceding such
Distribution Date.
Master Servicing Fee: As to each Mortgage Loan and any
Distribution Date, an amount equal to one month's interest at the related
Master Servicing Fee Rate on the Stated Principal Balance of such Mortgage
Loan or, in the event of any payment of interest which accompanies a Principal
Prepayment in Full made by the Mortgagor, interest at the Master Servicing Fee
Rate on the Stated Principal Balance of such Mortgage Loan for the period
covered by such payment of interest, subject to reduction as provided in
Section 3.15.
Master Servicer Prepayment Charge Payment Amount: The
amounts payable by the Master Servicer in respect of waived Prepayment Charges
pursuant to Section 3.06(d)(ix).
Master Servicing Fee Rate: With respect to each Mortgage
Loan, 0.04% per annum.
Maximum Rate: As to any Mortgage Loans in Loan Group 2, the
maximum rate set forth on the related Mortgage Note at which interest can
accrue on such Mortgage Loan.
Modified Mortgage Loan: Any Mortgage Loan which the Master
Servicer has modified pursuant to Section 3.12(c).
Monthly Statement: The statement delivered to the
Certificateholders pursuant to Section 4.06.
Mortgage: The mortgage, deed of trust or other instrument
creating a first lien on an estate in fee simple or leasehold interest in real
property securing a Mortgage Note.
Mortgage File: The mortgage documents listed in Section 2.01
pertaining to a particular Mortgage Loan and any additional documents
delivered to the Trustee to be added to the Mortgage File pursuant to this
Agreement.
Mortgage Loans: Such of the mortgage loans transferred and
assigned to the Trustee pursuant either (i) to the provisions hereof or (ii)
to the provisions of a Subsequent Transfer Agreement and 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, notwithstanding foreclosure or other acquisition of title of
the related Mortgaged Property.
Mortgage Loan Schedule: As of any date, the list of Mortgage
Loans included in the Trust Fund on such date, separately identifying the
Initial Mortgage Loans and the Subsequent Mortgage Loans (if any), attached
hereto as Schedule I. The Mortgage Loan Schedule shall be prepared by the
Seller and shall set forth the following information with respect to each
Mortgage Loan.
(i) the loan number;
(ii) the 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;
(d) the Margin;
(xv) a code indicating whether the Mortgage Loan is a
Performance Loan;
(xvi) the Servicing Fee Rate;
(xvii) a code indicating whether the Mortgage Loan is a
Lender PMI Loan;
(xviii) with respect to the Lender PMI Loans, the Lender PMI
fee premium; and
(xix) a code indicating whether the Mortgage Loan is a Delay
Delivery Mortgage Loan.
Such schedule shall also set forth the total of the amounts described under
(v) above for all of the Mortgage Loans.
Mortgage Note: The original executed note or other evidence
of indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage
Loan.
Mortgage Rate: The annual rate of interest borne by a
Mortgage Note from time to time.
Mortgaged Property: The underlying property securing a
Mortgage Loan, which, with respect to a Cooperative Loan, is the related Coop
Shares and Proprietary Lease.
Mortgagor: The obligor(s) on a Mortgage Note.
Net Monthly Excess Cashflow: For any Distribution Date the
amount remaining for distribution pursuant to subsection 4.02(iii) (before
giving effect to distributions pursuant to such subsection).
Net Prepayment Interest Shortfall: For any Distribution Date
and any Loan Group, the amount by which the sum of the Prepayment Interest
Shortfalls with respect to such Loan Group exceeds the sum of the Compensating
Interest payments made on such Distribution Date with respect to such Loan
Group.
Non-Delay Certificates: As specified in the Preliminary
Statement.
Nonrecoverable Advance: Any portion of an Advance previously
made or proposed to be made by the Master Servicer, that, in the good faith
judgment of the Master Servicer, will not be ultimately recoverable by the
Master Servicer from the related Mortgagor, related Liquidation Proceeds or
otherwise.
Notice of Final Distribution: The notice to be provided
pursuant to Section 9.02 to the effect that final distribution on any of the
Certificates shall be made only upon presentation and surrender thereof.
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 the case may be, as
required by this Agreement.
Opinion of Counsel: 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; provided, however, that with respect to
the interpretation or application of the REMIC Provisions, such 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.
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) hereof.
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: With respect to the Certificates as of any date
of determination, all Certificates theretofore executed and authenticated
under this Agreement except:
(i) Certificates theretofore canceled by the Trustee or
delivered to the Trustee for cancellation; and
(ii) Certificates in exchange for which or in lieu of
which other Certificates have been executed and delivered by the
Trustee pursuant to this Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage
Loan with a Stated Principal Balance greater than zero which was not the
subject of a Principal Prepayment in Full prior to such Due Date and which did
not become a Liquidated Mortgage Loan prior to such Due Date.
Ownership Interest: As to any Residual Certificate, any
ownership interest in such Certificate including any interest in such
Certificate as the Holder thereof and any other interest therein, whether
direct or indirect, legal or beneficial.
Pass-Through Margin: With respect to each Class of
Adjustable Rate Certificates, the following percentages: Class AV-1
Certificates, 0.29%; Class MV-1 Certificates, 0.63%; Class MV-2 Certificates,
1.05%; and Class BV Certificates, 2.00%. Following the Optional Termination
Date, the Pass-Through Margin for the Class AV-1 Certificates shall be doubled
and the Pass-Through Margin for Group 2 Subordinated Certificates shall
increase by 1.5 times.
Pass-Through Rate: For each Class of Certificates and each
Lower Tier Interest, the per annum rate set forth or calculated in the manner
described in the Preliminary Statement.
Percentage Interest: As to any Certificate, the percentage
interest evidenced thereby in distributions required to be made on the related
Class, such percentage interest being set forth on the face thereof or equal
to the percentage obtained by dividing the Denomination of such 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 any such Adjustment Date, as specified in the related
Mortgage Note.
Permitted Investments: At any time, any one or more of the
following obligations and securities:
(ii) obligations of the United States or any agency
thereof, provided that such obligations are backed by the full
faith and credit of the United States;
(iii) 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 such lower rating as 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) commercial or finance company paper which is then
receiving the highest commercial or finance company paper
rating of each Rating Agency, or such lower rating as 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) 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
and/or state banking authorities, provided that the commercial
paper and/or long-term unsecured debt obligations of such
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 such
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 such securities, or
such lower ratings as 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;
(vi) demand or time deposits or certificates of deposit
issued by any bank or trust company or savings institution to the
extent that such deposits are fully insured by the FDIC;
(vii) guaranteed reinvestment agreements issued by any
bank, insurance company or other corporation acceptable to the
Rating Agencies at the time of the issuance of such agreements,
as evidenced by a signed writing delivered by each Rating Agency;
(viii) 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;
(ix) securities (other than stripped bonds, stripped
coupons or instruments sold at a purchase price in excess of 115%
of the face amount thereof) bearing interest or sold at a
discount issued by any corporation incorporated under the laws of
the United States or any state thereof which, at the time of such
investment, have one of the two highest ratings of each Rating
Agency (except if the Rating Agency is Moody's such rating shall
be the highest commercial paper rating of Moody's for any such
securities), or such lower rating as 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;
(x) 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
(xi) such other investments bearing interest or sold at a
discount acceptable to each Rating Agency as 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;
provided that no such instrument shall be a Permitted Investment if such
instrument evidences the right to receive interest only payments with respect
to the obligations underlying such instrument.
Permitted Transferee: Any person other than (i) the United
States, any State or political subdivision thereof, or any agency or
instrumentality of any of the foregoing, (ii) a foreign government,
International Organization or any agency or instrumentality of either of the
foregoing, (iii) an organization (except certain farmers' cooperatives
described in section 521 of the Code) which 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 upon an Opinion of Counsel that the
Transfer of an Ownership Interest in a Residual Certificate to such Person may
cause the REMIC hereunder to fail to qualify as a REMIC at any time that the
Certificates are outstanding. The terms "United States," "State" and
"International Organization" shall have the meanings set forth in section 7701
of the Code or successor provisions. A corporation will not be treated as an
instrumentality of the United States or of any State or political subdivision
thereof for these purposes if all of its activities are subject to tax and,
with the exception of the Federal Home Loan Mortgage Corporation, a majority
of its board of directors is not selected by such government unit.
Person: Any individual, corporation, partnership, joint
venture, association, limited liability company, joint-stock company, trust,
unincorporated organization or government, or any agency or political
subdivision thereof.
Physical Certificates: As specified in the Preliminary
Statement.
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 which were Outstanding Mortgage
Loans on such day.
Pre-Funding Amount: With respect to any date, the amount on
deposit in the respective Pre-Funding Accounts as of such date (net of any
reinvestment earnings thereon).
Pre-Funding Accounts: The separate Eligible Accounts created
and maintained by the Trustee pursuant to Section 3.06 in the name of the
Trustee for the benefit of the Certificateholders and designated "The Bank of
New York, in trust for registered holders of IndyMac Home Equity Mortgage Loan
Asset-Backed Certificates, Series SPMD 2000-B." Funds in the Pre-Funding
Accounts shall be held in trust for the Certificateholders for the uses and
purposes set forth in this Agreement and shall not be a part of any REMIC
created hereunder, provided, however that any investment income earned from
Permitted Investments made with funds in the Pre-Funding Accounts will be for
the account of the Depositor.
Pre-Funding Period: With respect to each Loan Group, the
period commencing on the Closing Date and ending on the earlier to occur of
(i) the date on which the amount on deposit in the Pre-Funding Accounts
(exclusive of any investment earnings) is less than $100,000 and (ii) August
31, 2000.
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 (other than any Master
Servicer Prepayment Charge Payment Amount).
Prepayment Charge Period: As to any Mortgage Loan the period
of time, if any, during which a Prepayment Charge may be imposed.
Prepayment Charge Schedule: As of any date, the list of
Prepayment Charges included in the Trust on such date, (including the
prepayment charge summary attached thereto). The Prepayment Charge Schedule
shall set forth the following information with respect to each prepayment
Charge.
(i) the Mortgage Loan account number;
(ii) a code indicating the type of Prepayment Charge;
(iii) the state of origination in which the related Mortgage
Property is located;
(iv) the first date on which a Monthly Payment is or was due
under the related Mortgage Note;
(v) The term of the Prepayment Charge;
(vi) the original principal amount of the related Mortgage
Loan; and
(vii) the Cut-off Date Principal Balance of the related
mortgage Loan.
The Prepayment Charge Schedule shall be amended from time to
time by the Servicer in accordance with the provisions of this Agreement.
Prepayment Interest Shortfall: As to any Distribution Date,
Mortgage Loan and Principal Prepayment, the amount, if any, by which one
month's interest at the related Mortgage Rate (net of the related Master
Servicing Fee Rate) on such Principal Prepayment exceeds the amount of
interest paid in connection with such Principal Prepayment.
Prepayment Period: As to any Distribution Date, the
applicable Remittance Period.
Primary Insurance Policy: Each policy of primary mortgage
guaranty insurance or any replacement policy therefor with respect to any
Mortgage Loan.
Principal Distribution Amount: For each Certificate Group on
any Distribution Date, the sum of (i) the Basic Principal Distribution Amount
for such Distribution Date for such Certificate Group and (ii) the Extra
Principal Distribution Amount for such Distribution Date for such Certificate
Group.
Principal Prepayment: Any payment of principal by a
Mortgagor on a Mortgage Loan (including without limitation 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 or dates in any month
or months subsequent to the month of prepayment. Partial Principal Prepayments
shall be applied by the Master Servicer in accordance with the terms of 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: With respect to any
Distribution Date and each Loan Group, the amount equal to the sum of the
following amounts (without duplication) with respect to the immediately
preceding Remittance Period: (i) each payment of principal on a Mortgage Loan
in the related Loan Group received by the Master Servicer during such
Remittance Period, including all full and partial principal prepayments, (ii)
the Liquidation Proceeds on the Mortgage Loans in the related Loan Group
allocable to principal actually collected by the Master Servicer during the
related Remittance Period, (iii) the portion of the purchase price with
respect to each Deleted Mortgage Loan in the related Loan Group, the
repurchase obligation for which arose during the related Remittance Period and
that was repurchased prior to the related Distribution Account Deposit Date,
(iv) the principal portion of any Substitution Adjustment Amounts in
connection with a substitution of a Mortgage Loan in the related Loan Group as
of such Distribution Date, (v) with respect to the Distribution Date occurring
in the month following the end of the Pre-Funding Period, the related
Unutilized Pre-Funding Amount and (vi) the allocable portion of the proceeds
received with respect to the termination of the Trust Fund (to the extent such
proceeds relate to principal).
Private Certificates: As specified in the Preliminary
Statement.
Proprietary Lease: With respect to 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 July
26, 2000 relating to the Offered Certificates.
PUD: Planned Unit Development.
Purchase Price: With respect to 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, an amount equal to the sum of (i) 100% of the unpaid
principal balance of the Mortgage Loan on the date of such purchase, and (ii)
accrued interest thereon 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; provided, however, that if such 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 such 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 such insurer in connection
with the insurance policy issued by such insurer, duly authorized and licensed
in such states to transact a mortgage guaranty insurance business in such
states and to write the insurance provided by the insurance policy issued by
it, approved as a FNMA- or FHLMC-approved mortgage insurer or having a claims
paying ability rating of at least "AA" or equivalent rating by a nationally
recognized statistical rating organization. Any replacement insurer with
respect to a Mortgage Loan must have at least as high a claims paying ability
rating as the insurer it replaces had on the Closing Date.
Rating Agency: Each of the Rating Agencies specified in the
Preliminary Statement. If either such organization or a successor is no longer
in existence, "Rating Agency" shall be such nationally recognized statistical
rating organization, or other comparable Person, as is designated by the
Depositor, notice of which designation shall be given to the Trustee.
References herein to a given rating or rating category of a Rating Agency
shall mean such rating category without giving effect to any modifiers. For
purposes of Section 10.05(b), the addresses for notices to each Rating Agency
shall be (i) S&P and (ii) Fitch, Attention: Residential Mortgage Surveillance
Monitoring, or such other address as either such Rating Agency may hereafter
furnish to the Depositor and the Master Servicer.
Recognition Agreement: With respect to any Cooperative Loan,
an agreement between the Cooperative Corporation and the originator of such
Mortgage Loan which establishes the rights of such originator in the
Cooperative Property.
Record Date: With respect to any Distribution Date, the
close of business on the last Business Day of the month preceding the month in
which such applicable Distribution Date occurs.
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: With respect to 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 such 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: With respect to any Mortgage
Loan, any insurance policy that is required to be maintained from time to time
under this Agreement.
Required Reserve Amount: On any Distribution Date that (A)
the Group 2 WAC Cap exceeds the Pass-Through Rate on the Class BV Certificate
by less than 0.25% (25 basis points), the greater of $10,000 or the product of
(i) 0.50% and the Class Certificate Balance of the Adjustable Rate
Certificates as of such Distribution Date and (B) the Group 2 WAC Cap exceeds
the Pass-Through Rate on the Class BV Certificates by more than 0.25%,
$10,000.
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, such matter is referred because of such
officer's knowledge of and familiarity with the particular subject and who
shall have direct responsibility for the administration of this Agreement.
SAIF: The Savings Association Insurance Fund, or any
successor thereto.
S&P: Standard & Poor's, a division of The XxXxxx-Xxxx
Companies. If S&P is designated as a Rating Agency in the Preliminary
Statement, for purposes of Section 10.05(b) the address for notices to S&P
shall be Standard & Poor's Ratings Group, 00 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Mortgage Surveillance Monitoring, or such other
address as S&P may hereafter furnish to the Depositor and the Master Servicer.
Scheduled Payment: The scheduled monthly payment on a
Mortgage Loan due on any Due Date allocable to principal and/or interest on
such Mortgage Loan which, unless otherwise specified herein, shall give effect
to any related Debt Service Reduction and any Deficient Valuation that affects
the amount of the monthly payment due on such Mortgage Loan.
Securities Act: The Securities Act of 1933, as amended.
Security Agreement: With respect to any Cooperative Loan,
the agreement between the owner of the related Coop Shares and the originator
of the related Mortgage Note, which defines the terms of the security interest
in such Coop Shares and the related Proprietary Lease.
Seller: IndyMac Bank, F.S.B., a federal savings bank, and
its successors and assigns, in its capacity as seller of the Mortgage Loans to
the Depositor.
Senior Enhancement Percentage: With respect to either
Certificate Group and any Distribution Date, the percentage obtained by
dividing (x) the sum of (i) the aggregate Class Certificate Balance of the
Subordinated Certificates of such Certificate Group and (ii) the related
Subordinated Amount (in each case after taking into account the distributions
of the related Principal Distribution Amount for such Distribution Date) by
(y) the aggregate Stated Principal Balance of the Mortgage Loans in the
related Loan Group as of the last day of the related Remittance Period.
Senior Specified Enhancement Percentage: As of any date of
Determination, 20.50% with respect to Certificate Group 1 and 34.00% with
respect to Certificate Group 2.
Servicing Account: The separate Eligible Account or Accounts
created and maintained pursuant to Section 3.06(b) hereof.
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, but not limited to, 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, but not limited to, appraisal services)
in connection with the servicing of defaulted Mortgage Loans; provided,
however, that for purposes of this 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, an amount equal to one month's interest at the applicable Servicing Fee
Rate on the Stated Principal Balance of such Mortgage Loan, or, in the event
of any payment of interest which accompanies a Principal Prepayment in Full
made by the Mortgagor, interest at the Servicing Fee Rate on the Stated
Principal Balance of such Mortgage Loan for the period covered by such payment
of interest, subject to reduction as provided in Section 3.15
Servicing Fee Rate: With respect to any Mortgage Loan, the
per annum rate set forth in the Mortgage Loan Schedule for such Mortgage Loan.
Servicing Officer: Any officer of the Master Servicer
involved in, or responsible for, the administration and servicing of the
Mortgage Loans whose name and facsimile signature appear on a list of
servicing officers furnished to the Trustee by the Master Servicer on the
Closing Date pursuant to this Agreement, as such list may from time to time be
amended.
Servicing Standard: That degree of skill and care exercised
by the Master Servicer with respect to mortgage loans comparable to the
Mortgage Loans serviced by the Master Servicer for itself or others.
60+ Day Delinquent Loan: Each Mortgage Loan with respect to
which any portion of a Scheduled Payment is, as of the last day of the prior
Remittance Period, two months or more past due (without giving effect to any
grace period), each Mortgage Loan in foreclosure, all REO Property and each
Mortgage Loan for which the Mortgagor has filed for bankruptcy.
Specified Subordinated Amount: With respect to each Loan
Group prior to the Stepdown Date for the related Certificate Group, an amount
equal to 1.25% for Loan Group 1 and 2.00% for Loan Group 2, of the Cut-off
Date Principal Balance of the Mortgage Loans in the related Loan Group, and
with respect to each Loan Group on and after the Stepdown Date for the related
Certificate Group, an amount equal to 2.50% for Loan Group 1 and 4.00% for
Loan Group 2, of the aggregate Stated Principal Balance of the Mortgage Loans
in such Loan Group as of the last day of the related Remittance Period,
subject to a minimum amount equal to 0.50% for each Loan Group of the
aggregate Stated Principal Balance of the Mortgage Loans in that Loan Group as
of the related Cut-off Date, provided, however, that if, on any Distribution
Date, a Trigger Event for a Certificate Group has occurred, the Specified
Subordinated Amount shall not be reduced to the applicable percentage of the
then current aggregate Stated Principal Balance of the Mortgage Loans in the
related Loan Group until the Distribution Date on which a Trigger Event for
such Certificate Group is no longer occurring.
Startup Day: The Closing Date.
Stated Principal Balance: As to any Mortgage Loan and Due
Date, the unpaid principal balance of such Mortgage Loan as of such Due Date
as specified in the amortization schedule at the time relating thereto (before
any adjustment to such amortization schedule by reason of any moratorium or
similar waiver or grace period) after giving effect to 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 such Due Date and irrespective of any delinquency in payment
by the related Mortgagor.
Stepdown Date: With respect to either Loan Group, the later
to occur of (i) the Distribution Date in August 2003 and (ii) the first
Distribution Date on which the Senior Enhancement Percentage (calculated for
this purpose only after taking into account distributions of principal on the
Mortgage Loans in the related Loan Group on the last day of the related
Remittance Period but prior to any applications of Principal Distribution
Amount to the related Certificates) is greater than or equal to the related
Senior Specified Enhancement Percentage.
Subordinated Amount: For each Certificate Group and as of
any Distribution Date and related Loan Group, the excess, if any, of (a) the
aggregate Stated Principal Balance of the Mortgage Loans in such Loan Group as
of the end of the related Remittance Period over (b) the aggregate of the
Class Certificate Balances of the Offered Certificates in the related
Certificate Group as of such Distribution Date (after giving effect to the
payment of principal on such Certificates on such Distribution Date) plus
amount in the related Pre-Funding Account, if any, excluding investment
earnings.
Subordinated Certificates: As specified in the Preliminary
Statement.
Subordination Deficiency: With respect to any Distribution
Date and either Loan Group, the excess, if any, of (a) the Specified
Subordinated Amount for the related Certificate Group applicable to such
Distribution Date over (b) the Subordinated Amount for such Certificate Group
applicable to such Distribution Date.
Subordination Reduction Amount: With respect to any
Distribution Date and either Loan Group, an amount equal to the lesser of (a)
the related Excess Subordinated Amount and (b) the Total Monthly Excess Spread
for the related Certificate Group.
Subsequent Mortgage Loan: Such of the mortgage loans
transferred and assigned to the Trustee pursuant to (i) the provisions of 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" shall mean a
Subsequent Mortgage Loan conveyed to the Trust Fund on such Subsequent
Transfer Date.
Subsequent Transfer Agreement: A Subsequent Transfer
Agreement substantially in the form of Exhibit Q hereto, 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 such Subsequent
Transfer Agreement; provided, however, the Subsequent Transfer Date for any
Subsequent Transfer Agreement may not be a date earlier than the date on which
the Subsequent Transfer Agreement is executed and delivered by the parties
thereto pursuant to Section 2.09(a).
Subservicer: As defined in Section 3.02(a).
Substitute Mortgage Loan: A Mortgage Loan substituted by the
Seller for a Deleted Mortgage Loan which must, on the date of such
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 set forth in Section 2.03.
Substitution Adjustment Amount: The meaning ascribed to such
term pursuant to Section 2.03.
Telerate Page 3750: The display page currently so designated
on the Bridge Telerate Service (or such other page as may replace that page on
that service for displaying comparable rates or prices).
Total Monthly Excess Spread: As to either Loan Group and any
Distribution Date, an amount equal to the excess if any, of (i) the interest
collected or advanced on the related Mortgage Loans during the related
Remittance Period plus the related Capitalized Interest Requirement for such
Distribution Date over (ii) the sum of the interest payable to the Classes of
Certificates in the related Certificate Group on such Distribution Date.
Transfer: Any direct or indirect transfer or sale of any
Ownership Interest in a Residual Certificate.
Trigger Event: With respect to the Certificates of a
Certificate Group after a Stepdown Date for the related Loan Group, exists if
the quotient (expressed as a percentage) of (x) the three month rolling
average of 60+ Day Delinquent Loans for the related Loan Group, as of the last
day of the related Remittance Period, over (y) the Stated Principal Balance of
the Mortgage Loans in that Loan Group equals or exceeds 50% (in the case of
Loan Group 1) or 40% (in the case of Loan Group 2) of the related Senior
Enhancement Percentage.
Trust Fund: The corpus of the trust created hereunder
consisting of (i) the Mortgage Loans and all interest and principal received
on or with respect thereto after the related Cut-off Date, other than such
amounts which were due on the Mortgage Loans on or before the related Cut-off
Date; (ii) the Certificate Account, Excess Reserve Fund Account, the
Distribution Account, the Pre-Funding Accounts and the Capitalized Interest
Accounts and all amounts deposited therein pursuant to the applicable
provisions of this Agreement (including, without limitation, amounts received
from the Seller on the Closing Date which shall 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; and (iv) all proceeds of the conversion, voluntary
or involuntary, of any of the foregoing.
Trustee: The Bank of New York and its successors and, if a
successor trustee is appointed hereunder, such successor.
Trustee Fee: As to each Mortgage Loan and any Distribution
Date, an amount equal to one month's interest at the related Trustee Fee Rate
on the Stated Principal Balance of such Mortgage Loan or, in the event of any
payment of interest which accompanies a Principal Prepayment in Full made by
the Mortgagor, interest at the Trustee Fee Rate on the Stated Principal
Balance of such Mortgage Loan for the period covered by such payment of
interest.
Trustee Fee Rate: With respect to each Mortgage Loan, the
per annum rate agreed upon in writing on or prior to the Closing Date by the
Trustee and the Depositor.
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 such Distribution Date and any
portion of such Accrued Certificate Interest Distribution Amount from prior
Distribution Dates remaining unpaid over (ii) the amount in respect of
interest on such Class of Certificates actually distributed on the preceding
Distribution Date and (b) 30 days' interest on such excess at the applicable
Pass-Through Rate (to the extent permitted by applicable law).
Unpaid Realized Loss Amount: With respect to any Class of
Subordinated Certificates and as to any Distribution Date, is the excess of
(i) Applied Realized Loss Amounts with respect to such Class over (ii) the sum
of all distributions in reduction of such Applied Realized Loss Amounts on all
previous Distribution Dates. Any amounts distributed to a Class of
Subordinated Certificates in respect of any Unpaid Realized Loss Amount will
not be applied to reduce the Class Certificate Balance of such Class.
United States Person or U.S. Person: Shall mean (i) a
citizen or resident of the United States; (ii) a corporation (or entity
treated as a corporation for tax purposes) created or organized in the United
States or under the laws of the United States or of any state thereof,
including, for this purpose, the District of Columbia; (iii) a partnership (or
entity treated as a partnership for tax purposes) organized in the United
States or under the laws of the United States or of any state thereof,
including, for this purpose, the District of Columbia (unless provided
otherwise by future Treasury regulations); (iv) an estate whose income is
includible in gross income for United States income tax purposes regardless of
its source; or (v) a trust, if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more U.S. Persons have authority to control all substantial decisions of the
trust. Notwithstanding the last clause of the preceding sentence, to the
extent provided in Treasury regulations, certain trusts in existence on August
20, 1996, and treated as U.S. Persons prior to such date, may elect to
continue to be U.S. Persons.
Unutilized Pre-Funding Amount: The Pre-Funding Amount
immediately after the end of the Pre-Funding Period.
Upper Tier Regular Interest: As described in the Preliminary
Statement.
Upper Tier REMIC:. As described in the Preliminary Statement.
Voting Rights: The portion of the voting rights of all of
the Certificates which is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to the Class X
Certificates, if any (such Voting Rights to be allocated among the holders of
Certificates of each such Class in accordance with their respective Percentage
Interests) and (b) the remaining Voting Rights shall be allocated among
Holders of the remaining Classes of Certificates in proportion to the
Certificate Balances of their respective Certificates on such date.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01. Conveyance of Mortgage Loans.
(a) The Seller, concurrently with the execution and delivery
hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to
the Depositor, without recourse, all the right, title and interest of the
Seller in and to each Initial Mortgage Loan, including all interest and
principal received or receivable by the Seller on or with respect to each
Initial Mortgage Loan after the related Cut-off Date and all interest and
principal payments on each Initial Mortgage Loan received prior to 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 Initial Mortgage Loan on or before such related Cut-off Date.
On or prior to 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. Such 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 hereof, hereby sells, transfers, assigns, sets over and otherwise
conveys to the Trustee for the benefit of the Certificateholders, without
recourse, all the right, title and interest of the Depositor in and to the
Trust Fund, together with the Depositor's right to require the Seller to cure
any breach of a representation or warranty made herein by the Seller or to
repurchase or substitute for any affected Initial Mortgage Loan in accordance
herewith.
(c) In connection with the transfer and assignment of each
Initial Mortgage Loan, the Depositor has delivered or caused to be delivered
(or, in the case of the Delay Delivery Mortgage Loans, will deliver to, or
will cause to be delivered 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 or
will cause to be delivered, to the Trustee for the benefit of the
Certificateholders the following documents or instruments with respect to each
Mortgage Loan so assigned:
(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 right, title and interest
of the party so endorsing, as noteholder or assignee thereof,
in and to 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) except as provided below, the original recorded
Mortgage or a copy of such 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 such 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 such mortgage (each such assignment, when duly
and validly completed, to be in recordable form and
sufficient to effect the assignment of and transfer to the
assignee thereof, under the Mortgage to which the assignment
relates); provided that, if the related Mortgage has not
been returned from the applicable public recording office,
such assignment of the Mortgage may exclude the information
to be provided by the recording office; provided, further
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.
(iv) the original or copies of each assumption,
modification, written assurance or substitution agreement, if
any;
(v) except as provided below, the original or
duplicate original lender's title policy and all riders
thereto; and
(vi) in the case of a Cooperative Loan, the originals
of the following documents or instruments:
(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 with
evidence of recording thereon which have been
filed in all places required to perfect the
Seller's interest in the Coop Shares and the
Proprietary Lease; and
(f) Executed UCC-3 financing statements or other
appropriate UCC financing statements required by
state law, evidencing a complete and unbroken line
from the mortgagee to the Trustee with evidence of
recording thereon (or in a form suitable for
recordation).
In the event that 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
riders thereto) satisfying the requirements of clause (ii), (iii) or (v)
above, respectively, concurrently with the execution and delivery hereof
because such document or documents have not been returned from the applicable
public recording office in the case of clause (ii) or (iii) above, or because
the title policy has not been delivered to either the Master Servicer or the
Depositor by the applicable title insurer in the case of clause (v) above, the
Depositor shall promptly deliver to the Trustee, in the case of clause (ii) or
(iii) above, such original Mortgage or such interim assignment, as the case
may be, with evidence of recording indicated thereon upon receipt thereof from
the public recording office, or a copy thereof, certified, if appropriate, by
the relevant recording office, but in no event shall any such delivery of the
original Mortgage Loan and each such interim assignment or a copy thereof,
certified, if appropriate, by the relevant recording office, 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); provided, however, that in the event the Depositor
is unable to deliver by such date each Mortgage and each such interim
assignment by reason of the fact that any such documents have not been
returned by the appropriate recording office, or, in the case of each such
interim assignment, because the related Mortgage has not been returned by the
appropriate recording office, the Depositor shall deliver such documents to
the Trustee as promptly as possible upon receipt thereof 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 or cause to
be forwarded 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. In the event that 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 or cause to be
executed and delivered such a document to the public recording office. In the
case where a public recording office retains the original recorded Mortgage or
in the case where a Mortgage is lost after recordation in a public recording
office, the Seller shall deliver to the Trustee a copy of such Mortgage
certified by such public recording office to be a true and complete copy of
the original recorded Mortgage.
As promptly as practicable subsequent to such transfer and
assignment, and in any event, within thirty (30) days thereafter, the Trustee
shall (i) affix the Trustee's name to each assignment of Mortgage, as the
assignee thereof 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, with respect to any assignment of a
Mortgage as to which the Trustee has not received the information required to
deliver such assignment, the Trustee's obligation to do so and to deliver the
same for such recording shall be as soon as practicable after receipt of such
information and in any event within thirty (30) days after the receipt
thereof, and the Trustee need not cause to be recorded any assignment which
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, the
recordation of such assignment is not necessary to protect the Trustee's and
the Certificateholders' interest in the related Mortgage Loan.
In the case of Mortgage Loans that 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 such payment 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 set forth in Section
2.03, provided that if the Seller fails to deliver a Mortgage File for any
Delay Delivery Mortgage Loan within the period provided in the prior sentence,
the cure period provided for in Section 2.02 or in Section 2.03 shall not
apply to the initial delivery of the Mortgage File for such Delay Delivery
Mortgage Loan, but rather the Seller shall have five (5) Business Days to cure
such failure to deliver. The Seller shall promptly provide each Rating Agency
with written notice of any cure, repurchase or substitution made pursuant to
the proviso of the preceding sentence. On or before the fifth Business Day
after the Closing Date (in the case of Initial Mortgage Loans) or the
thirtieth (30th) day (or if such thirtieth day is not a Business Day, the
succeeding Business Day) after Subsequent Transfer Date (in the case of
Subsequent Mortgage Loans), the Trustee shall, in accordance with the
provisions of Section 2.02, send a Delay Delivery Certification substantially
in the form annexed hereto as 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.
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 annexed hereto as Exhibit
G, and receipt of the amount of $1,546,097.73 for deposit in the Group 1
Pre-Funding Account and the amount of $7,681,981.29 for deposit in the Group 2
Pre-Funding Account and declares that it holds and will hold such documents
and the other documents delivered to it constituting the Mortgage Files for
the Initial Mortgage Loans, that it holds and will hold all amounts in the
Pre-Funding Accounts and the Capitalized Interest Accounts, and that it holds
or will hold such other assets as are included in the Trust Fund, in trust for
the exclusive use and benefit of all present and future Certificateholders.
The Trustee acknowledges that it will maintain possession of the related
Mortgage Notes in the State of California, unless otherwise permitted by the
Rating Agencies.
The Trustee agrees to execute and deliver on the Closing
Date to the Depositor, the Master Servicer and the Seller an Initial
Certification in the form annexed hereto as Exhibit G. Based on its review and
examination, and only as to the documents identified in such Initial
Certification, the Trustee acknowledges that such documents appear regular on
their face and relate to such Initial Mortgage Loans. The Trustee shall be
under no duty or obligation to inspect, review or examine said documents,
instruments, certificates or other papers to determine that the same are
genuine, enforceable or appropriate for the represented purpose or that they
have actually been recorded in the real estate records or that they are other
than what they purport to be on their face.
On or before the thirtieth (30th) day after the Closing Date
(or if such thirtieth 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 annexed hereto as 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 annexed hereto as Exhibit H, with any applicable
exceptions noted thereon.
If, in the course of such review, the Trustee finds any
document constituting a part of a Mortgage File which does not meet the
requirements of Section 2.01, the Trustee shall list such as an exception in
the Final Certification; provided, however, that the Trustee shall not make
any determination as to whether (i) any endorsement is sufficient to transfer
all right, title and interest of the party so endorsing, as noteholder or
assignee thereof, in and to that Mortgage Note or (ii) any assignment is in
recordable form or 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 or cure such defect within 90 days from the date
it was so notified of such defect and, if the Seller does not correct or cure
such defect within such period, the Seller shall either (a) substitute for the
related Initial Mortgage Loan a Substitute Mortgage Loan, which substitution
shall be accomplished in the manner and subject to the conditions set forth in
Section 2.03, or (b) purchase such Initial Mortgage Loan from the Trustee
within 90 days from the date the Seller was notified of such defect in writing
at the Purchase Price of such Initial Mortgage Loan; provided, however, that
in no event shall such substitution or purchase occur more than 540 days from
the Closing Date, except that if the substitution or purchase of an Initial
Mortgage Loan pursuant to this provision is required by reason 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 such substitution or
purchase shall occur within 720 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) which has not been returned by
the appropriate recording office or (b) as to which there is a dispute as to
location or status of such Initial Mortgage Loan. Such notice shall be
delivered every 90 days thereafter until the related Initial Mortgage Loan is
returned to the Trustee. Any such substitution pursuant to (a) above or
purchase pursuant to (b) above shall not be effected prior to the delivery to
the Trustee of the Opinion of Counsel required by Section 2.05, if any, and
any substitution pursuant to (a) above shall not be effected prior to 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 such month. The Purchase Price for any
such Initial Mortgage Loan shall be deposited by the Seller in the Certificate
Account on or prior to the Distribution Account Deposit Date for the
Distribution Date in the month following the month of repurchase and, upon
receipt of such deposit and certification with respect thereto in the form of
Exhibit N hereto, the Trustee shall release the related Mortgage File to the
Seller and shall execute and deliver at the Seller's request such instruments
of transfer or assignment prepared by the Seller, in each case without
recourse, as shall be necessary to vest in the Seller, or a designee, the
Trustee's interest in any Initial Mortgage Loan released pursuant hereto.
The Trustee shall retain possession and custody of each
Mortgage File in accordance with and subject to the terms and conditions set
forth herein. The Master Servicer shall promptly deliver to the Trustee, upon
the execution or receipt thereof, the originals of such other documents or
instruments constituting the Mortgage File as come into the possession of the
Master Servicer from time to time.
It is understood and agreed that the obligation of the
Seller to substitute for or to purchase any Initial Mortgage Loan which does
not meet the requirements of Section 2.01 shall constitute the sole remedy
respecting such 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 annexed hereto as 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 holds or will hold such other assets as are
included in the Trust Fund, in trust for the exclusive use and benefit of all
present and future Certificateholders. The Trustee acknowledges that it will
maintain possession of the related Mortgage Notes in the State of California,
unless otherwise permitted by the Rating Agencies.
Based on its review and examination, and only as to the
documents identified in such Initial Certification, the Trustee acknowledges
that such documents appear regular on their face and relate to such Subsequent
Mortgage Loan. The Trustee shall be under no duty or obligation to inspect,
review or examine said documents, instruments, certificates or other papers to
determine that the same are genuine, enforceable or appropriate for the
represented purpose or that they have actually been recorded in the real
estate records or that they are other than what they purport to be on their
face.
Not later than 90 days after the Subsequent Transfer Date,
the Trustee shall deliver to the Depositor, the Master Servicer and the Seller
a Final Certification in the form annexed hereto as Exhibit H, with any
applicable exceptions noted thereon.
If, in the course of such review, the Trustee finds any
document constituting a part of a Subsequent Mortgage File which does not meet
the requirements of Section 2.01, the Trustee shall list such as an exception
in the Final Certification; provided, however, that the Trustee shall not make
any determination as to whether (i) any endorsement is sufficient to transfer
all right, title and interest of the party so endorsing, as Noteholder or
assignee thereof, in and to that Mortgage Note or (ii) any assignment is in
recordable form or 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 or cure such defect within 90 days from the date
it was so notified of such defect and, if the Seller does not correct or cure
such defect within such period, the Seller shall either (a) substitute for the
related Subsequent Mortgage Loan a Substitute Mortgage Loan, which
substitution shall be accomplished in the manner and subject to the conditions
set forth in Section 2.03, or (b) purchase such Subsequent Mortgage Loan from
the Trustee within 90 days from the date the Seller was notified of such
defect in writing at the Purchase Price of such Subsequent Mortgage Loan;
provided, however, that in no event shall such substitution or purchase occur
more than 540 days from the Subsequent Transfer Date, except that if the
substitution or purchase of a Subsequent Mortgage Loan pursuant to this
provision is required by reason 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 such substitution or purchase shall occur within 720
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) which has not been returned by
the appropriate recording office or (b) as to which there is a dispute as to
location or status of such Mortgage Loan. Such notice shall be delivered every
90 days thereafter until the related Subsequent Mortgage Loan is returned to
the Trustee. Any such substitution pursuant to (a) above or purchase pursuant
to (b) above shall not be effected prior to the delivery to the Trustee of the
Opinion of Counsel required by Section 2.05, if any, and any substitution
pursuant to (a) above shall not be effected prior to 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 such month. The Purchase Price for any such Subsequent
Mortgage Loan shall be deposited by the Seller in the Certificate Account on
or prior to the Distribution Account Deposit Date for the Distribution Date in
the month following the month of repurchase and, upon receipt of such deposit
and certification with respect thereto in the form of Exhibit N hereto, the
Trustee shall release the related Mortgage File to the Seller and shall
execute and deliver at the Seller's request such instruments of transfer or
assignment prepared by the Seller, in each case without recourse, as shall be
necessary to vest in the Seller, or a designee, the Trustee's interest in any
Subsequent Mortgage Loan released pursuant hereto.
The Trustee shall retain possession and custody of each
related Mortgage File in accordance with and subject to the terms and
conditions set forth herein. The Master Servicer shall promptly deliver to the
Trustee, upon the execution or receipt thereof, the originals of such other
documents or instruments constituting the Subsequent Mortgage File as come
into the possession of the Master Servicer from time to time.
It is understood and agreed that the obligation of the
Seller to substitute for or to purchase any Subsequent Mortgage Loan which
does not meet the requirements of Section 2.01 shall constitute the sole
remedy respecting such 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 set forth in
Schedule II hereto, 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 set forth in Schedule III hereto, and by this
reference incorporated herein, to the Depositor and the Trustee, as of the
Closing Date, or if so specified therein, as of the related Cut-off Date.
(c) Upon discovery by any of the parties hereto of a breach
of a representation or warranty made pursuant to Section 2.03(b) that
materially and adversely affects the interests of the Certificateholders in
any Mortgage Loan, the party discovering such breach shall give prompt notice
thereof to the other parties. The Seller hereby covenants that within 90 days
of the earlier of its discovery or its receipt of written notice from any
party of a breach of any representation or warranty made pursuant to Section
2.03(b) which materially and adversely affects the interests of the
Certificateholders in any Mortgage Loan, it shall cure such breach in all
material respects, and if such breach is not so cured, shall, (i) if such 90
day period expires prior to the second anniversary of the Closing Date, remove
such Mortgage Loan (a "Deleted Mortgage Loan") from the Trust Fund and
substitute in its place a Substitute Mortgage Loan, in the manner and subject
to the conditions set forth in this Section 2.03; or (ii) repurchase the
affected Mortgage Loan or Mortgage Loans from the Trustee at the Purchase
Price in the manner set forth below; provided, however, that any such
substitution pursuant to (i) above shall not be effected prior to the delivery
to the Trustee of the Opinion of Counsel required by Section 2.05, if any, and
a Request for Release substantially in the form of Exhibit N, and the Mortgage
File for any such Substitute Mortgage Loan; and provided, further, that,
anything to the contrary herein notwithstanding, Seller shall have no
obligation to cure any such breach or to repurchase or substitute for such
affected Mortgage Loan if the substance of such breach constitutes fraud in
the origination of such affected Mortgage Loan and the Seller, at the time of
such origination and on the Closing Date, did not have actual knowledge of
such 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 such breach.
With respect to any Substitute Mortgage Loan or Loans, the
Seller shall deliver to the Trustee for the benefit of the Certificateholders
the Mortgage Note, the Mortgage, the related assignment of the Mortgage, and
such other documents and agreements as are required by Section 2.01, with the
Mortgage Note endorsed and the Mortgage assigned as required by Section 2.01.
No substitution is permitted to be made in any calendar month after the
Determination Date for such month. Scheduled Payments due with respect to
Substitute Mortgage Loans in the Remittance Period of substitution shall not
be part of the Trust Fund and will be retained by the Seller on the next
succeeding Distribution Date. For the Remittance Period of substitution,
distributions to Certificateholders will include the monthly payment due on
any Deleted Mortgage Loan for such Remittance Period and thereafter the Seller
shall be entitled to retain all amounts received in respect of such Deleted
Mortgage Loan.
The Master Servicer shall amend the Mortgage Loan Schedule
for the benefit of the Certificateholders to reflect the removal of such
Deleted Mortgage Loan and the substitution of the Substitute Mortgage Loan or
Loans and the Master Servicer shall deliver the amended Mortgage Loan Schedule
to the Trustee. Upon such substitution, the Substitute Mortgage Loan or Loans
shall be subject to the terms of this Agreement in all respects, and the
Seller shall be deemed to have made with respect to such Substitute Mortgage
Loan or Loans, as of the date of substitution, the representations and
warranties made pursuant to Section 2.03(b) with respect to such Mortgage
Loan. Upon any such substitution and the deposit to the Certificate Account of
the amount required to be deposited therein in connection with such
substitution as described in the following paragraph, the Trustee shall
release the Mortgage File held for the benefit of the Certificateholders
relating to such Deleted Mortgage Loan to the Seller and shall execute and
deliver at the Seller's direction such instruments of transfer or assignment
prepared by the Seller, in each case without recourse, as shall be necessary
to vest title in the Seller, or its designee, the Trustee's interest in any
Deleted Mortgage Loan substituted for pursuant to this Section 2.03.
For any month in which the Seller substitutes one or more
Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Master
Servicer will determine the amount (if any) by which the aggregate principal
balance of all such Substitute Mortgage Loans as of the date of substitution
is less than the aggregate Stated Principal Balance of all such Deleted
Mortgage Loans (after application of the scheduled principal portion of the
monthly payments due in the Remittance Period of substitution). The amount of
such shortage (the "Substitution Adjustment Amount") plus, if the Seller is
not the Master Servicer, an amount equal to the aggregate of any unreimbursed
Advances and Servicing Advances with respect to such Deleted Mortgage Loans
shall be deposited into the Certificate Account by the Seller on or before 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.
In the event that the Seller shall have repurchased a
Mortgage Loan, the Purchase Price therefor shall be deposited in the
Certificate Account pursuant to Section 3.06 on or before 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 such 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 hereto, 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. It is understood and agreed that 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 such Persons respecting such 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.
The Depositor hereby assigns, transfers and conveys to the
Trustee all of its rights with respect to the Mortgage Loans including,
without limitation, 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.
It is understood and agreed that the representations and
warranties set forth 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 foregoing representations and warranties set forth
in this Section, which materially and adversely affects the interest of the
Certificateholders, the party discovering such breach shall give prompt
written notice to the others and to each Rating Agency.
Section 2.05. Delivery of Opinion of Counsel in Connection
with Substitutions and Repurchases.
(a) Notwithstanding any contrary provision of this
Agreement, no substitution pursuant to Section 2.02 or 2.03 shall be made more
than 90 days after the Closing Date unless the Seller delivers to the Trustee
an Opinion of Counsel, which Opinion of Counsel shall not be at the expense of
either the Trustee or the Trust Fund, addressed to the Trustee, to the effect
that such substitution will not (i) result in the imposition of the tax on
"prohibited transactions" on the Trust Fund or contributions after the Startup
Date, as defined in Sections 860F(a)(2) and 860G(d) of the Code, respectively
or (ii) cause the Trust Fund to fail to qualify as a REMIC at any time that
any Certificates are outstanding.
(b) Upon discovery by the Depositor, the Seller, the Master
Servicer or the Trustee that any Mortgage Loan does not constitute a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the
party discovering such fact shall promptly (and in any event within five (5)
Business Days of discovery) give written notice thereof to the other parties.
In connection therewith, the Trustee shall require the Seller, at the Seller's
option, to either (i) substitute, if the conditions in Section 2.03(c) with
respect to substitutions are satisfied, a Substitute Mortgage Loan for the
affected Mortgage Loan, or (ii) repurchase the affected Mortgage Loan within
90 days of such discovery in the same manner as it would a Mortgage Loan for a
breach of representation or warranty made pursuant to Section 2.03. The
Trustee shall reconvey to the Seller the Mortgage Loan to be released pursuant
hereto in the same manner, and on the same terms and conditions, as it would a
Mortgage Loan repurchased for breach of a representation or warranty contained
in Section 2.03.
Section 2.06. Execution and Delivery of Certificates.
The Trustee acknowledges the transfer and assignment to it
of the Trust Fund and, concurrently with such transfer and assignment, has
executed and delivered to or upon the order of the Depositor, the Certificates
in authorized denominations evidencing directly or indirectly the entire
ownership of the Trust Fund. The Trustee agrees to hold the Trust Fund and
exercise the rights referred to above for the benefit of all present and
future Holders of the Certificates.
Section 2.07. REMIC Matters.
The Preliminary Statement sets forth the designations and
"latest possible maturity date" for federal income tax purposes of all
interests created hereby. The "Startup Day" for purposes of the REMIC
Provisions shall be the Closing Date.
Section 2.08. Covenants of the Master Servicer.
The Master Servicer hereby covenants to the Depositor and
the Trustee as follows:
(a) the Master Servicer shall comply in the performance of
its obligations under this Agreement with all reasonable rules and
requirements of the insurer under each Required Insurance Policy; and
(b) no written information, certificate of an officer,
statement furnished in writing or written report delivered to the Depositor,
any affiliate of the Depositor or the Trustee and prepared by the Master
Servicer pursuant to this Agreement will contain any untrue statement of a
material fact or omit to state a material fact necessary to make such
information, certificate, statement or report not misleading.
Section 2.09. Subsequent Transfers.
(a) Upon five Business Days prior written notice to the
Trustee, the Depositor, the Seller and the Trustee shall complete, execute and
deliver a Subsequent Transfer Agreement. Subject to the satisfaction of the
conditions set forth in Article II and paragraph (b) below and pursuant to the
terms of the related Subsequent Transfer Agreement, in consideration of the
Trustee's delivery on each Subsequent Transfer Date to or upon the order of
the Seller of all or a portion of the balance of funds in the Pre-Funding
Accounts, the Seller shall on each Subsequent Transfer Date sell, transfer,
assign, set over and otherwise convey to the Depositor, without recourse, all
the right, title and interest of the Seller in and to each Subsequent Mortgage
Loan listed on the Mortgage Loan Schedule delivered by the Seller on such
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 prior to 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 on or before such related Cut-off Date, and the
Depositor shall simultaneously sell, transfer, assign, set over and otherwise
convey to the Trustee for the benefit of the Certificateholders, without
recourse, all the right, title and interest of the Depositor in and to each
Subsequent Mortgage Loan listed on the Mortgage Loan Schedule delivered by the
Seller on such Subsequent Transfer Date, including all interest and principal
received or receivable by the Depositor on or with respect to each Subsequent
Mortgage Loan after the related Cut-off Date and all interest and principal
payments on each Subsequent Mortgage Loan received prior to 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 on or before such related Cut-off
Date.
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 the
terms of 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 right, title and interest of the Seller in and to 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 the terms of 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 right, title and interest of the Depositor in and to 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.
The amount released from the Group 1 Pre-Funding Account by the
Trustee pursuant to this Section 2.09 shall be the aggregate Cut-off Date
Principal Balance of the Subsequent Mortgage Loans so transferred to Loan
Group 1. The amount released from the Group 2 Pre-Funding Account by the
Trustee pursuant to this Section 2.09 shall be the aggregate Cut-off Date
Principal Balance of the Subsequent Mortgage Loans so transferred to Loan
Group 2.
(b) The Trustee shall contribute from the Pre-Funding
Accounts funds in an amount equal to the aggregate Cut-off Date Principal
Balance of the Subsequent Mortgage Loans so transferred to the Trust Fund to
purchase the Subsequent Mortgage Loans on behalf of the Trust Fund, along with
the other property and rights related thereto described in Section 2.09(a)
hereof 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 such Subsequent
Transfer Date (such 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);
(ii) the execution and delivery of such 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 set forth in Article II and this Section
2.09(b) required to be satisfied by such Subsequent Transfer
Date;
(iv) each Subsequent Mortgage Loan conveyed on such
Subsequent Transfer Date satisfies the representations and
warranties applicable to it under this Agreement, provided,
however, that with respect to a breach of a representation
and warranty with respect to a Subsequent Mortgage Loan set
forth in this clause (iv), the obligation under Section
2.03(c) of this Agreement of the Seller to cure, repurchase
or replace such Subsequent Mortgage Loan shall constitute
the sole remedy against the Seller respecting such breach
available to Certificateholders, the Depositor or the
Trustee.
(v) the Subsequent Mortgage Loans conveyed on such
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 such Subsequent
Transfer Date was 30 or more days delinquent;
(vii) each Subsequent Mortgage Loan conveyed on such
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 such Subsequent Transfer Date to the related Loan
Group, the characteristics of such 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 such calculations, the characteristics for each
Mortgage Loan made will be taken as of the related Cut-off
Date for such 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%
Balloon Loans:..................................... + 0.01%
Maximum Principal Balance.......................... + $4,054.40
State Concentration:............................... + 1.01%
Zip Code Concentration:............................ + 2.00%
Non-Owner Occupied:................................ + 0.71%
Second Liens:...................................... + 0.11%
Manufactured Housing:.............................. + 2.27%
Loan Group 2: Variation
Loan Weighted Average Coupon:...................... - 0.01%
Weighted Average Maturity.......................... +/- 1 month
Weighted Average Combined Loan-to-Value Ratio:..... + 0.34%
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
such 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(b);
(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 such purchase of Subsequent Mortgage Loans will
not (i) result in the imposition of the tax on "prohibited
transactions" on the Trust Fund or contributions after the
Startup Date, as defined in Sections 860F(a)(2) and 860G(d)
of the Code, respectively or (ii) cause the Trust Fund to
fail to qualify as a REMIC at any time that any Certificates
are outstanding; and
(xii) delivery to the Trustee of the Mortgage File for each
Subsequent Mortgage Loan to be transferred pursuant to the
related Subsequent Transfer Agreement.
The Trustee shall not be required to investigate or otherwise verify
compliance with these conditions, except for its own receipt of documents
specified above, and shall be entitled to rely on the required Officer's
Certificate.
(c) In connection with each Subsequent Transfer Date and on
the related Distribution Date, the Seller shall determine (i) the amount and
correct dispositions of the funds distributed from the Capitalized Interest
Accounts and the Pre-Funding Accounts and (ii) any other necessary matters in
connection with the administration of the Capitalized Interest Accounts and
the Pre-Funding Accounts. In the event that any amounts are released by the
Trustee from a Pre-Funding Account or from a Capitalized Interest Account as a
result of the Seller's calculation error, the Trustee shall not be liable
therefor, and the Seller shall immediately repay such amounts to the Trustee.
Section 2.10. Mandatory Prepayment.
Any Unutilized Pre-Funding Amount shall be distributed to
Holders of the related Group of Certificates in accordance with Section 4.02
hereof on the Distribution Date immediately following the Due Period in which
the end of the Pre-Funding Period occurs.
ARTICLE III
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
the terms of this Agreement and the Servicing Standard. In connection with
such servicing and administration, the Master Servicer shall have full power
and authority, acting alone and/or through Subservicers as provided in Section
3.02, to do or cause to be done any and all things that it may deem necessary
or desirable in connection with such servicing and administration, including
but not limited to, the power and authority, subject to the terms hereof, (i)
to execute and deliver, on behalf of the Certificateholders and the Trustee,
customary consents or waivers and other instruments and documents, (ii) to
consent to transfers of any Mortgaged Property and assumptions of the Mortgage
Notes and related Mortgages (but only in the manner provided in this
Agreement), (iii) to collect any Insurance Proceeds and other Liquidation
Proceeds, and (iv) to effectuate foreclosure or other conversion of the
ownership of the Mortgaged Property securing any Mortgage Loan. The Master
Servicer shall not make or permit any modification, waiver or amendment of any
term of any Mortgage Loan which 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 and all instruments of satisfaction or cancellation, or of partial or full
release or discharge, and all other comparable instruments, with respect to
the Mortgage Loans, and with respect to the Mortgaged Properties held for the
benefit of the Certificateholders. The Master Servicer shall prepare and
deliver to the Depositor and/or the Trustee such documents requiring execution
and delivery by either or both of them as are necessary or 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 such documents,
the Depositor and/or the Trustee shall execute such documents and deliver them
to the Master Servicer.
In accordance with and to the extent of the Servicing
Standard, the Master Servicer shall advance or cause to be advanced funds as
necessary for the purpose of effecting 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, if any, 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 terms of such Mortgage Loans so
permit.
Section 3.02. Subservicing; Enforcement of the Obligations
of Subservicers.
(a) The Master Servicer may arrange for the subservicing of
any Mortgage Loan by a subservicer pursuant to a subservicing agreement (a
"Subservicer"); provided, however, that such subservicing arrangement and the
terms of the related subservicing agreement must provide for the servicing of
such 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 the provisions
of any subservicing agreement, any of the provisions of 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 the provisions of this Agreement without diminution of such
obligation or liability by virtue of such subservicing agreements or
arrangements or by virtue of indemnification from the Subservicer and to the
same extent and under the same terms and conditions 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 force and effect as if
performed directly by the Master Servicer.
(b) For purposes of this Agreement, the Master Servicer
shall be deemed to have received any collections, recoveries or payments with
respect to the Mortgage Loans that are received by the Subservicer regardless
of whether such payments are remitted by such Subservicer to the Master
Servicer.
Section 3.03. [Reserved].
Section 3.04. No Contractual Relationship Between
Subservicers and the Trustee.
Any subservicing arrangement that may be entered into and
any other transactions or services relating to the Mortgage Loans involving a
Subservicer in its capacity as such shall be deemed to be solely between the
Subservicer and the Master Servicer alone, and the Trustee and
Certificateholders shall not be deemed parties thereto and shall have no
claims, rights, obligations, duties or liabilities with respect to the
Subservicer in its capacity as such except as set forth in Section 3.05.
Section 3.05. Trustee to Act as Master Servicer.
In the event that the Master Servicer shall for any reason
no longer be the Master Servicer hereunder (including by reason of an Event of
Default), the Trustee or its successor shall thereupon assume all of the
rights and obligations of the Master Servicer hereunder arising thereafter
(except that the Trustee shall not be (i) liable for losses of the Master
Servicer pursuant to Section 3.10 or any acts or omissions of the predecessor
Master Servicer hereunder), (ii) obligated to make Advances if it is
prohibited from doing so by applicable law, (iii) obligated to effectuate
repurchases or substitutions of Mortgage Loans hereunder, including but not
limited to 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 such 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 such agreement in the event a successor Master Servicer is
appointed.
If the Master Servicer shall for any reason no longer be the
Master Servicer (including by reason 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 the terms therof; provided that 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 prior to the date of such 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 prior to the
date of such 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 (if any) 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.
Section 3.06. Collection of Mortgage Loan Payments;
Servicing Accounts; Collection Account;
Certificate Account; Distribution Account;
Pre-Funding Accounts; Capitalized Interest
Accounts.
(a) In accordance with and to the extent of the Servicing
Standard, the Master Servicer shall make reasonable efforts in accordance with
the customary and usual standards of practice of prudent mortgage servicers to
collect all payments called for under the terms and provisions of the Mortgage
Loans to the extent such procedures shall be consistent with this Agreement
and the terms and provisions of any related Required Insurance Policy.
Consistent with the foregoing, the Master Servicer may in its discretion (i)
waive any late payment charge and (ii) extend the due dates for payments due
on a Mortgage Note for a period not greater than 125 days; provided, however,
that the Master Servicer cannot extend the maturity of any such 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 the provisions of Section 4.01
during the scheduled period in accordance with the amortization schedule of
such Mortgage Loan without modification thereof by reason of such
arrangements. The Master Servicer shall not be required to institute or join
in litigation with respect to collection of any payment (whether under a
Mortgage, Mortgage Note or otherwise or against any public or governmental
authority with respect to a taking or condemnation) if it reasonably believes
that enforcing the provision of the Mortgage or other instrument pursuant to
which such 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 or cause to be deposited 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 subsequent to the related Cut-off Date (other than in respect
of principal and interest due on the Mortgage Loans on or before 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.
On or before the Withdrawal Date in each calendar month, the
Master Servicer shall (a) withdraw (or cause to be withdrawn and remitted to
the Master Servicer) 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. On or before 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 (or cause to be withdrawn and remitted to the
Master Servicer) such amounts from the Servicing Account and (b) deposit such
amounts in the Collection Account.
(c) The Master Servicer shall establish and maintain a
Collection Account into which the Master Servicer shall deposit, as and when
required by paragraph (b) of this Section 3.06, all amounts required to be
deposited in 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 or cause to
be deposited 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 subsequent to
the related Cut-off Date (other than in respect of principal and interest due
on the Mortgage Loans on or before 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) any amount required to be deposited by the Master
Servicer pursuant to Section 3.06(f) in connection with any losses on
Permitted Investments;
(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 such 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 such
Mortgage Loan equal to the amount of interest that has accrued on such
Mortgage Loan from the preceding Due Date at the Mortgage Rate net of the
Master Servicing Fee on such date.
The foregoing requirements for remittance by the Master
Servicer shall be exclusive, it being understood and agreed that, without
limiting the generality of the foregoing, payments in the nature of late
payment charges or assumption fees, if collected, need not be remitted by the
Master Servicer. In the event that the Master Servicer shall remit any amount
not required to be remitted, it may at any time withdraw such amount from the
CertificateAccount, any provision herein to the contrary notwithstanding. Such
withdrawl or direction may be accomplished by delivering written notice
thereof to the Trustee or such other institution maintaining the Certificate
Account which 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 Certificateholders, to secure
their limited recourse obligation to pay to the Adjustable Rate
Certificateholders Basis Risk CarryForward Amounts.
(ii) On the Closing Date, the Depositor shall deposit
into the Excess Reserve Fund Account $10,000.
(iii) On each Distribution Date, the Trustee shall
deposit the amount of any Basis Risk Payment for such date
into the Excess Reserve Fund Account.
(iv) The Trustee shall invest amounts held in the
Excess Reserve Fund Account only in Permitted Investments.
The Class X Certificateholder shall direct the Trustee in
writing with respect to investment of amounts in the
Excess Reserve Fund.
(f) (i) (A) On each Distribution Date the Required Reserve
Fund Deposit shall be deposited in the Excess Reserve Fund Account.
(B) On each Distribution Date on which there exists
a Basis Risk CarryForward Amount on any Class of
Certificates, the Trustee shall withdraw from the Excess
Reserve Fund Account amounts necessary to pay to such Class
or Classes of Certificates the Basis Risk CarryForward
Amount. Such payments shall be allocated to those Classes on
a pro rata basis based upon the amount of Basis Risk
CarryForward Amount owed to each such Class and shall be
paid in the priority set forth in Section 4.02(iii)(i)
hereof.
(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 owner of the
Excess Reserve Fund Account is the Class X
Certificateholder. For all Federal tax purposes, amounts
transferred by the Upper Tier REMIC to the Excess Reserve
Fund Account shall be treated as distributions by the
Trustee to the Class X Certificateholder.
(iii) Any Basis Risk CarryForward Amounts paid by the
Trustee to the Adjustable Rate Certificateholders shall be
accounted for by the Trustee as amounts paid to the Holders
of the Class X Certificate. In addition, the Trustee shall
account for the Adjustable Rate Certificateholders rights to
receive payments of Basis Risk CarryForward Amounts as rights
in a limited recourse interest rate cap contract written by
the Class X Certificateholders in favor of the Adjustable
Rate Certificateholders.
(iv) Notwithstanding any provision contained in this
Agreement, the Trustee shall not be required to make any
payments from the Excess Reserve Fund Account except as
expressly set forth in this Section 3.06(f).
(g) The Trustee shall establish and maintain the
Distribution Account on behalf of the Certificateholders. The Trustee shall,
promptly upon receipt, deposit in the Distribution Account and retain therein
the following:
(i) the aggregate amount remitted by the Master
Servicer to the Trustee pursuant to Section 3.09(a);
(ii) any amount deposited by the Master Servicer
pursuant to Section 3.06(h) in connection with any losses on
Permitted Investments; and
(iii) any other amounts deposited hereunder which
are required to be deposited in the Distribution Account.
In the event that the Master Servicer shall remit any amount
not required to be remitted, it may at any time direct the Trustee in
writing to withdraw such amount from the Distribution Account, any
provision herein to the contrary notwithstanding. Such direction may
be accomplished by delivering an Officer's Certificate to the Trustee
which 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) (1) Each institution at which the Certificate Account or
Distribution 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 (i) in the case of the Certificate Account, the second Business
Day next preceding the related Distribution Account Deposit 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 Business Day next preceding such Distribution Account Deposit Date)
and (ii) in the case of the Distribution Account, 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 such Distribution Date) and,
in each case, shall not be sold or disposed of prior to its maturity. All such
Permitted Investments shall be made in the name of the Trustee, for the
benefit of the Certificateholders. All income and gain (net of any losses)
realized from any such investment of funds on deposit in the Certificate
Account or the Distribution 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 in the Certificate Account
or the Distribution Account incurred in any such account in respect of any
such investments shall promptly be deposited by the Master Servicer in the
Certificate Account or paid to the Trustee for deposit into the Distribution
Account, as applicable. 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 or the Distribution Account and made in accordance
with this Section 3.06.
(2) The Trustee shall invest funds in the Capitalized
Interest Accounts or Pre-Funding Accounts as directed in writing by the Master
Servicer in Permitted Investments, which shall mature not later than the
Business Day next preceding the Distribution Date (except that if such
Permitted Investment is an obligation of the institution that maintains such
account, then such Permitted Investment shall mature not later than such
Distribution Date) and, in each case, shall not be sold or disposed of prior
to its maturity. All such Permitted Investments shall be made in the name of
the Trustee, for the benefit of the Certificateholders.
(i) The Trustee shall establish and maintain, on behalf of
the Certificateholders, two separate accounts denominated the Group 1
Pre-Funding Account and the Group 2 Pre-Funding Account in the name of the
Trustee. Each of the Pre-Funding Accounts shall be treated as an "outside
reserve fund" under applicable Treasury regulations and shall not be part of
any REMIC. Any investment earnings on the Pre-Funding Accounts shall be
treated as owned by the Seller and will be taxable to the Seller. On the
Closing Date the Seller shall remit $9,228,079.02 to the Trustee for deposit
in the Pre-Funding Accounts. The Trustee shall allocate (i) $1,546,097.73 of
the such amount to the Group 1 Pre-Funding Account for the purchase of
Subsequent Mortgage Loans to be included in Loan Group 1 and (ii)
$7,681,981.29 of the such amount to the Group 2 Pre-Funding Account for the
purchase of Subsequent Mortgage Loans to be included in Loan Group 2.
The Trustee shall establish and maintain, on behalf of the
Certificateholders, two separate accounts denominated the Group 1 Capitalized
Interest Account and the Group 2 Capitalized Interest Account in the name of
the Trustee. Each of the Capitalized Interest Accounts shall be treated as an
"outside reserve fund" under applicable Treasury regulations and shall not be
part of the REMIC. Any investment earnings on the Capitalized Interest
Accounts shall be treated as owned by the Seller and will be taxable to the
Seller.
On each Subsequent Transfer Date, upon satisfaction of the
conditions set forth in Section 2.09 hereof, the Trustee shall withdraw from
the related Pre-Funding Accounts an amount equal to 100% of the aggregate of
the Cut-off Date Principal Balances of the Subsequent Mortgage Loans sold to
the Trust Fund for inclusion in Loan Group 1 or Loan Group 2, as the case may
be, on such Subsequent Transfer Date and pay such amount to or upon the order
of the Seller.
On the Business Day prior to the Distribution Date
immediately following the Remittance Period in which the Pre-Funding Period
ends, the Trustee shall (i) withdraw the Unutilized Pre-Funding Amount, if
any, from each of the Pre-Funding Accounts, (ii) promptly deposit each amount
in the Distribution Account and (iii) distribute each amount to the related
Certificate Group on such Distribution Date pursuant to Section 4.02 hereof.
The amount deposited in the Distribution Account pursuant to
the preceding paragraph shall be net of any investment earnings on the amounts
on deposit in the Pre-Funding Accounts.
On the Business Day prior to each Distribution Date, through
the Distribution Date immediately following the Remittance Period in which the
Pre-Funding Period ends, the Trustee shall transfer from each Capitalized
Interest Account to the Distribution Account the related Capitalized Interest
Requirement and shall distribute such amount to the related Certificate Group
on such Distribution Date pursuant to Section 4.02 hereof. To the extent that
a Capitalized Interest Requirement on any such Distribution Date exceeds the
amounts on deposit in the related Capitalized Interest Account, the Trustee
shall transfer to the Distribution Account, to the extent of such shortfall in
the Capitalized Interest Requirement, the investment earnings on the amounts
on deposit in the related Capitalized Interest Account and Pre-Funding
Account. The remaining investment earnings on deposit in the Capitalized
Interest Account and the Pre-Funding Account shall be transferred to the
Seller.
All amounts, if any, remaining in the Capitalized Interest
Accounts and any investment earnings remaining in the Pre-Funding Accounts on
the Distribution Date following the Remittance Period in which the Pre-Funding
Period ends shall be transferred to the Seller.
(j) The Master Servicer shall give notice to the Trustee,
the Seller, each Rating Agency and the Depositor of any proposed change of the
location of the Certificate Account and the Collection Account not later than
30 days and not more than 45 days prior to any change thereof.
Section 3.07. Collection of Taxes, Assessments and Similar
Items; Escrow Accounts.
(a) To the extent required by the related Mortgage Note and
not violative of current law, the Master Servicer shall establish and maintain
one or more accounts (each, an "Escrow Account") and deposit and retain
therein all collections from the Mortgagors (or advances) for the payment of
taxes, assessments, hazard insurance premiums or comparable items for the
account of the Mortgagors. Nothing herein shall require the Master Servicer to
compel a Mortgagor to establish an Escrow Account in violation of applicable
law.
(b) Withdrawals of amounts so collected from the Escrow
Accounts may be made only to effect timely payment of taxes, assessments,
hazard insurance premiums, condominium or PUD association dues, or comparable
items, to reimburse (without duplication) the Master 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 terms of the related Mortgage or
Mortgage Note, to Mortgagors on balances in the Escrow Account or to clear and
terminate the Escrow Account at the termination of this Agreement in
accordance with Section 9.01. The Escrow Accounts shall not be a part of the
Trust Fund.
(c) The Master Servicer shall advance any payments referred
to in Section 3.07(a) that are not timely paid by the Mortgagors or advanced
by the Master Servicer on the date when the tax, premium or other cost for
which such payment is intended is due, but the Master Servicer shall be
required so to advance only to the extent that such advances, in the good
faith judgment of the Master Servicer, will be recoverable by the Master
Servicer out of Insurance Proceeds, Liquidation Proceeds or otherwise.
Section 3.08. Access to Certain Documentation and
Information Regarding the Mortgage Loans.
The Master Servicer shall afford the Depositor and the
Trustee reasonable access to all records and documentation regarding the
Mortgage Loans and all accounts, insurance information and other matters
relating to this Agreement, such access being afforded without charge, but
only upon reasonable request and during normal business hours at the office
designated by the Master Servicer.
Upon reasonable advance notice in writing, the Master
Servicer will provide to each Certificateholder which 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 such Certificateholder to comply with applicable regulations of the OTS
or other regulatory authorities with respect to investment in the
Certificates; provided that the Master Servicer shall be entitled to be
reimbursed by each such Certificateholder for actual expenses incurred by the
Master Servicer in providing such 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 Loan(s) in respect of which such Advance was made;
(iii) to reimburse the Master Servicer for any
Nonrecoverable Advance previously made;
(iv) to reimburse the Master Servicer for Insured
Expenses from the related Insurance Proceeds;
(v) to reimburse the Master Servicer for (a)
unreimbursed Servicing Advances, the Master Servicer's right
to reimbursement pursuant to this clause (a) with respect to
any Mortgage Loan being limited to amounts received on such
Mortgage Loan(s) which represent late recoveries of the
payments for which such advances were made pursuant to
Section 3.01 or Section 3.07 and (b) for unpaid Master
Servicing Fees as provided in Section 3.12;
(vi) to pay to the purchaser, with respect to each
Mortgage Loan or property acquired in respect thereof that
has been purchased pursuant to Section 2.02, 2.03 or 3.14,
all amounts received thereon after the date of such purchase;
(vii) to reimburse the Seller, the Master Servicer or
the Depositor for expenses incurred by any of them and
reimbursable pursuant to Section 6.03;
(viii) to withdraw any amount deposited in the
Certificate Account and not required to be deposited therein;
(ix) on or prior to the Distribution Account Deposit
Date, to withdraw an amount equal to (1) the related
Available Funds for both Loan Groups and the Trustee Fee for
such 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, for the purpose of
justifying any withdrawal from the Certificate Account pursuant to such
subclauses (i), (ii), (iv), (v) and (vi). Prior to 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
Loan(s) and their respective portions of such 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:
(ii) to pay to itself the Trustee Fee for the related
Distribution Date;
(iii) to pay to the Master Servicer as additional servicing
compensation earnings on or investment income with respect
to funds in the Distribution Account;
(iv) to withdraw and return to the Master Servicer any
amount deposited in the Distribution Account and not
required to be deposited therein; and
(v) to clear and terminate the Distribution Account upon
termination of the Agreement pursuant to Section 9.01.
(c) On each Distribution Date, the Trustee shall make
withdrawals from the Excess Reserve Fund Account for deposit in the
Distribution Account an amount equal to the amount required pursuant to
Section 3.06(f) above. On the earlier of (i) the Distribution Date on which
all of the Adjustable Rate Certificates are reduced to zero and (ii) the
termination of this Agreement pursuant to Section 9.01, 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 or cause to be
maintained, 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 such Mortgage Loan or (ii) the greater of
(y) the outstanding principal balance of the Mortgage Loan and (z) an amount
such that the proceeds of such policy shall be sufficient to prevent the
Mortgagor and/or the mortgagee from becoming a co-insurer. Each such policy of
standard hazard insurance shall contain, or have an accompanying endorsement
that contains, a standard mortgagee clause. Any amounts collected under any
such 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
such 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
terms of the Mortgage Loan so permit. 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. It is understood
and agreed that 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 such applicable laws and regulations as shall at any
time be in force and as shall require such 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 such area is
participating in the national flood insurance program, the Master Servicer
shall cause flood insurance to be maintained with respect to such Mortgage
Loan. Such flood insurance shall be in an amount equal to the least of (i) the
original principal balance of the related Mortgage Loan, (ii) the replacement
value of the improvements which are part of such Mortgaged Property, and (iii)
the maximum amount of such insurance available for the related Mortgaged
Property under the national flood insurance program.
In the event that the Master Servicer shall obtain and
maintain a blanket policy insuring against hazard losses on all of the
Mortgage Loans, it shall conclusively be deemed to have satisfied its
obligations as set forth in the first sentence of this Section 3.10, it being
understood and agreed that such policy may contain a deductible clause on
terms substantially equivalent to those commercially available and maintained
by comparable servicers. If such policy contains a deductible clause, the
Master Servicer shall, in the event that there shall not have been maintained
on the related Mortgaged Property a policy complying with the first sentence
of this Section 3.10, and there shall have been a loss that would have been
covered by such policy, deposit in the Certificate Account the amount not
otherwise payable under the blanket policy because of such deductible clause.
In connection with its activities as Master Servicer of the Mortgage Loans,
the Master Servicer agrees to present, on behalf of itself, the Depositor, and
the Trustee for the benefit of the Certificateholders, claims under any such
blanket policy.
(b) The Master Servicer shall not take any action which
would result in non-coverage under any applicable Primary Insurance Policy of
any loss which, but for the actions of the Master Servicer, would have been
covered thereunder. The Master Servicer shall not cancel or refuse to renew
any such 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 such canceled or
non-renewed policy is maintained with a Qualified Insurer. The Master Servicer
shall not be required to maintain any Primary Insurance Policy (i) with
respect to any Mortgage Loan with a Loan-to-Value Ratio of 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 such
Mortgage Loan represents 80% or less of the new Appraised Value or (ii) if
maintaining such 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 such
costs not otherwise recoverable shall be recoverable by the Master Servicer
from the related liquidation proceeds.
In connection with its activities as Master Servicer of the
Mortgage Loans, the Master Servicer agrees to present, on behalf of itself,
the Trustee and the Certificateholders, claims to the insurer under any
Primary Insurance Policies and, in this regard, to take such reasonable action
in accordance with the Servicing Standard as shall be 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).
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 such 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 such
enforcement will not adversely affect or jeopardize coverage under any
Required Insurance Policy. Notwithstanding the foregoing, the Master Servicer
is not required to exercise such 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 terms and conditions contained in the Mortgage
Note and Mortgage related thereto and the consent of the mortgagee under such
Mortgage Note or Mortgage is not otherwise so required under such Mortgage
Note or Mortgage as a condition to such transfer. In the event that (i) the
Master Servicer is prohibited by law from enforcing any such 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 such property has
been or is about to be conveyed, pursuant to which such person becomes liable
under the Mortgage Note and, unless prohibited by applicable state law, the
Mortgagor remains liable thereon, provided that the Mortgage Loan shall
continue to be covered (if so covered before the Master Servicer enters such
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 such Person, pursuant to which the original Mortgagor
is released from liability and such 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
by reason of any transfer or assumption which the Master Servicer reasonably
believes it is restricted by law from preventing, for any reason whatsoever.
(b) Subject to the Master Servicer's duty to enforce any
due-on-sale clause to the extent set forth in Section 3.11(a), in any case in
which a Mortgaged Property has been conveyed to a Person by a Mortgagor, and
such 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 or cause to be prepared and delivered to
the Trustee for signature and shall direct, in writing, the Trustee to execute
the assumption agreement with the Person to whom the Mortgaged Property is to
be conveyed and such modification agreement or supplement to the Mortgage Note
or Mortgage or other instruments as are reasonable or necessary to carry out
the terms of the Mortgage Note or Mortgage or otherwise to comply with any
applicable laws regarding assumptions or the transfer of the Mortgaged
Property to such 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 such 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 such substitution or
assumption agreement has been completed by forwarding to the Trustee the
original of such 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 such Mortgage File to the same extent as all
other documents and instruments constituting a part thereof. Any fee collected
by the Master Servicer for entering into an assumption or substitution of
liability agreement will be retained by the Master Servicer 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 upon or otherwise
comparably convert the ownership of Mortgaged Properties in respect of which
the related Mortgage Loans as come into and continue in default and as to
which no satisfactory arrangements can be made for collection of delinquent
payments. In connection with such 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 shall determine (i) that such restoration and/or foreclosure will
increase the proceeds of liquidation of the Mortgage Loan after reimbursement
to itself of such expenses and (ii) that such 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
such proceedings; provided, however, that it shall be 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 which
the Master Servicer is contemplating acquiring in foreclosure or by deed in
lieu of foreclosure is located within a 1 mile radius of any site listed in
the Expenditure Plan for the Hazardous Substance Clean Up Bond Act of 1984 or
other site with environmental or hazardous waste risks known to the Master
Servicer, the Master Servicer will, prior to acquiring the Mortgaged Property,
consider such risks and only take action in accordance with its established
environmental review procedures.
With respect to any REO Property, the deed or certificate of
sale shall be taken in the name of the Trustee for the benefit of the
Certificateholders, or its nominee, on behalf of the Certificateholders. The
Trustee's name shall be placed on the title to such REO Property solely as the
Trustee hereunder and not in its individual capacity. The Master Servicer
shall ensure that the title to such REO Property references the Pooling and
Servicing Agreement and the Trustee's capacity hereunder. Pursuant to its
efforts to sell such REO Property, the Master Servicer shall either itself or
through an agent selected by the Master Servicer protect and conserve such REO
Property in accordance with the Servicing Standard and may, incident to its
conservation and protection of the interests of the Certificateholders, rent
the same, or any part thereof, as the Master Servicer deems to be in the best
interest of the Certificateholders for the period prior to the sale of such
REO Property. The Master Servicer shall prepare for and deliver to the Trustee
a statement with respect to each REO Property that has been rented showing the
aggregate rental income received and all expenses incurred in connection with
the management and maintenance of such REO Property at such times as is
necessary to enable the Trustee to comply with the reporting requirements of
the REMIC Provisions. The net monthly rental income, if any, from such REO
Property shall be deposited in the Certificate Account no later than the close
of business on each Determination Date. The Master Servicer shall perform the
tax reporting and withholding required by Sections 1445 and 6050J of the Code
with respect to foreclosures and abandonments, the tax reporting required by
Section 6050H of the Code with respect to the receipt of mortgage interest
from individuals and, if required by Section 6050P of the Code with respect to
the cancellation of indebtedness by certain financial entities, by preparing
such tax and information returns as may be required, in the form required, and
delivering the same to the Trustee for filing.
In the event that the Trust Fund acquires any Mortgaged
Property as aforesaid or otherwise in connection with a default or imminent
default on a Mortgage Loan, the Master Servicer shall dispose of such
Mortgaged Property prior to three years after its acquisition by the Trust
Fund unless the Trustee shall have been supplied with an Opinion of Counsel to
the effect that the holding by the Trust Fund of such Mortgaged Property
subsequent to such two-year period will not result in the imposition of taxes
on "prohibited transactions" on any REMIC as defined in section 860F of the
Code or cause any REMIC to fail to qualify as a REMIC at any time that any
Certificates are outstanding, in which case the Trust Fund may continue to
hold such Mortgaged Property (subject to any conditions contained in such
Opinion of Counsel). Notwithstanding any other provision of this Agreement, no
Mortgaged Property acquired by the Trust Fund shall be rented (or allowed to
continue to be rented) or otherwise used for the production of income by or on
behalf of the Trust Fund in such a manner or pursuant to any terms that would
(i) cause such Mortgaged Property to fail to qualify as "foreclosure property"
within the meaning of Section 860G(a)(8) of the Code or (ii) subject any REMIC
to the imposition of any federal, state or local income taxes on the income
earned from such Mortgaged Property under Section 860G(c) of the Code or
otherwise, unless the Master Servicer has agreed to indemnify and hold
harmless the Trust Fund with respect to the imposition of any such taxes.
The decision of the Master Servicer to foreclose on a
defaulted Mortgage Loan shall be subject to a determination by the Master
Servicer that the proceeds of such foreclosure would exceed the costs and
expenses of bringing such a proceeding. The income earned from the management
of any REO Properties, net of reimbursement to the Master Servicer for
expenses incurred (including any property or other taxes) in connection with
such management and net of unreimbursed Master Servicing Fees, Advances and
Servicing Advances, shall be applied to the payment of principal of and
interest on the related defaulted Mortgage Loans (with interest accruing as
though such Mortgage Loans were still current and adjustments, if applicable,
to the Mortgage Rate were being made in accordance with the terms of the
Mortgage Note) and all such income shall be deemed, for all purposes in this
Agreement, to be payments on account of principal and interest on the related
Mortgage Notes and shall be deposited into the Certificate Account. To the
extent the net income received during any calendar month is in excess of the
amount attributable to amortizing principal and accrued interest at the
related Mortgage Rate on the related Mortgage Loan for such calendar month,
such excess shall be considered to be a partial prepayment of principal of the
related Mortgage Loan.
The proceeds from any liquidation of a Mortgage Loan, as
well as any income from an REO Property, will be applied in the following
order of priority: first, to reimburse the Master Servicer for any related
unreimbursed Servicing Advances or Master Servicing Fees, as 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 such Mortgage Loan; third, to accrued and unpaid
interest (to the extent no Advance has been made for such amount or any such
Advance has been reimbursed) on the Mortgage Loan or related REO Property, at
the Adjusted Net Mortgage Rate through the Remittance Period preceding the
Distribution Date on which such amounts are required to be distributed; and
fourth, as a recovery of principal of the Mortgage Loan. Excess Proceeds, if
any, from the liquidation of a Liquidated Mortgage Loan will be retained by
the Master Servicer as additional servicing compensation pursuant to Section
3.15.
(b) The Master Servicer, in its sole discretion, shall have
the right to purchase for its own account from the Trust Fund any Mortgage
Loan which is 91 days or more delinquent at a price equal to the Purchase
Price. The Purchase Price for any Mortgage Loan purchased hereunder shall be
deposited in the Certificate Account and the Trustee, upon receipt of a
certificate from the Master Servicer in the form of Exhibit N hereto, shall
release or cause to be released to the purchaser of such Mortgage Loan the
related Mortgage File and shall execute and deliver such instruments of
transfer or assignment prepared by the purchaser of such Mortgage Loan, in
each case without recourse, as shall be necessary to vest in the purchaser of
such Mortgage Loan any Mortgage Loan released pursuant hereto and the
purchaser of such Mortgage Loan shall succeed to all the Trustee's right,
title and interest in and to such Mortgage Loan and all security and documents
related thereto. Such assignment shall be an assignment outright and not for
security. The purchaser of such Mortgage Loan shall thereupon own such
Mortgage Loan, and all security and documents, free of any further obligation
to the Trustee or the Certificateholders with respect thereto.
(c) The Master Servicer may agree to a modification of any
Mortgage Loan (the "Relevant Mortgage Loan") upon the request of the related
Mortgagor, provided that 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 such
modification, and, in any event, on the same Business Day on which the
modification occurs, all right, title and interest of the Trustee in and to
the Modified Mortgage Loan shall automatically be deemed transferred and
assigned to the Master Servicer and all benefits and burdens of ownership
thereof, including without limitation the right to accrued interest thereon
from and including 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 such 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 such 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 and all liability for any "prohibited transaction"
taxes and any related interest, additions and penalties imposed on the Trust
Fund established hereunder as a result of any modification of a Mortgage Loan
effected pursuant to this subsection (c), any holding of a Modified Mortgage
Loan by the Trust Fund or any purchase of a Modified Mortgage Loan by the
Master Servicer (but such obligation shall not prevent the Master Servicer or
any other appropriate Person from contesting any such tax in appropriate
proceedings and shall not prevent the Master Servicer from withholding payment
of such tax, if permitted by law, pending the outcome of such proceedings).
The Master Servicer shall have no right of reimbursement for any amount paid
pursuant to the foregoing indemnification, except to the extent that the
amount of any tax, interest and penalties, together with interest thereon, is
refunded to the Trust Fund or the Master Servicer.
Section 3.13. Trustee to Cooperate; Release of Mortgage
Files.
Upon the payment in full of any Mortgage Loan, or the
receipt by the Master Servicer of a notification that payment in full will be
escrowed in a manner customary for such purposes, the Master Servicer will
immediately notify the Trustee by delivering, or causing to be delivered, a
"Request for Release" substantially in the form of Exhibit N. Upon receipt of
such request, the Trustee shall promptly release the related Mortgage File to
the Master Servicer, and the Trustee shall at the Master Servicer's direction
execute and deliver to the Master Servicer the request for reconveyance, deed
of reconveyance or release or satisfaction of mortgage or such instrument
releasing the lien of the Mortgage in each case provided by the Master
Servicer, together with the Mortgage Note with written evidence of
cancellation thereon. Expenses incurred in connection with any instrument of
satisfaction or deed of reconveyance shall be chargeable to the related
Mortgagor. From time to time and as shall be appropriate for the servicing or
foreclosure of any Mortgage Loan, including for such purpose collection under
any policy of flood insurance, any fidelity bond or errors or omissions
policy, or for the purposes of effecting a partial release of any Mortgaged
Property from the lien of the Mortgage or the making of any corrections to the
Mortgage Note or the Mortgage or any of the other documents included in the
Mortgage File, the Trustee shall, upon delivery to the Trustee of a Request
for Release in the form of Exhibit M signed by a Servicing Officer, release
the Mortgage File to the Master Servicer or its designee. Subject to the
further limitations set forth below, the Master Servicer shall cause the
Mortgage File or documents so released to be returned to the Trustee when the
need therefor by the Master Servicer no longer exists, unless the Mortgage
Loan is liquidated and the proceeds thereof are deposited in the Certificate
Account, in which case the Master Servicer shall deliver to the Trustee a
Request for Release in the form of Exhibit N, signed by a Servicing Officer.
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 or cause to be delivered to
the Trustee, for signature, as appropriate, any court pleadings, requests for
trustee's sale or other documents necessary to effectuate such foreclosure or
any legal action brought to obtain judgment against the Mortgagor on the
Mortgage Note or the Mortgage or to obtain a deficiency judgment or to enforce
any other remedies or rights provided by the Mortgage Note or the Mortgage or
otherwise available at law or in equity.
Section 3.14. Documents, Records and Funds in Possession
of the Master Servicer to be Held for the
Trustee.
The Master Servicer shall account fully to the Trustee for
any funds received by the Master Servicer or which otherwise are collected by
the Master Servicer 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 but not limited to, 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 shall be entitled to retain or withdraw from the Servicing Account,
the Collection Account or the Certificate Account an amount equal to 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 an amount
equal to the aggregate of the Prepayment Interest Shortfalls, if any, with
respect to such Distribution Date; provided, however, that the reduction for
any Distribution Date shall not exceed the aggregate Compensating Interest for
such Distribution Date.
The Master Servicer shall also be entitled to retain or
withdraw from the Servicing Account, the Collection Account or the Certificate
Account an amount equal to the Servicing Fee for each Mortgage Loan for the
related Distribution Date. In cases where a Mortgage Loan is being directly
serviced by the Master Servicer, the Master Servicer shall be entitled to
retain such amount for its own account as compensation for performing such
services. In cases where a Mortgage Loan is being directly serviced by a
Subservicer, the Master Servicer shall (unless the Servicing Fee has been
retained by the Subservicer) remit such amount to the related Subservicer as
compensation for performing such services.
Additional master servicing compensation in the form of
Excess Proceeds, assumption fees, late payment charges and all income and gain
net of any losses realized from Permitted Investments shall be retained by the
Master Servicer to the extent not required to be deposited in the Certificate
Account pursuant to Section 3.06. The Master Servicer shall be required to pay
all expenses incurred by it in connection with its servicing activities
hereunder (including the fees of any Subservicer, payment of any premiums for
hazard insurance and any Primary Insurance Policy and maintenance of the other
forms of insurance coverage required by this Agreement) and shall not be
entitled to reimbursement therefor except as specifically provided in this
Agreement.
Section 3.16. Access to Certain Documentation.
The Master Servicer shall provide to the OTS and the FDIC
and to comparable regulatory authorities supervising Holders of Subordinated
Certificates and the examiners and supervisory agents of the OTS, the FDIC and
such other authorities, access to the documentation regarding the Mortgage
Loans required by applicable regulations of the OTS and the FDIC. Such access
shall be afforded without charge, but only upon reasonable and 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 on or before 120 days after the end of the Master Servicer's fiscal
year, commencing with its 2001 fiscal year, 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 such officer's
supervision, and (ii) to the best of such officer's knowledge, based on such
review, the Master Servicer has fulfilled all its obligations under this
Agreement throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to such
officer and the nature and status thereof. The Trustee shall forward a copy of
each such statement to each Rating Agency.
Section 3.18. Annual Independent Public Accountants'
Servicing Statement; Financial Statements.
On or before 120 days after the end of the Master Servicer's
fiscal year, commencing with its 2001 fiscal year, 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) which is a member of the American
Institute of Certified Public Accountants to furnish a statement to the
Trustee and the Depositor to the effect that such 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 (such statement to have attached
thereto a schedule setting forth the pooling and servicing agreements covered
thereby) and that, on the basis of such examination, conducted substantially
in compliance with the Audit Guide for Audits of HUD Approved Nonsupervised
Mortgagees, the Uniform Single Attestation Program for Mortgage Bankers or the
Audit Program for Mortgages serviced for FNMA and FHLMC, such servicing has
been conducted in compliance with such pooling and servicing agreements except
for such significant exceptions or errors in records that, in the opinion of
such 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 such statement, such 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 such
statement) of independent public accountants with respect to the related
Subservicer. Copies of such statement shall be provided by the Trustee to any
Certificateholder upon request at the Master Servicer's expense, provided that
such statement is delivered by the Master Servicer to the Trustee.
Section 3.19. Errors and Omissions Insurance; Fidelity
Bonds.
The Master Servicer shall obtain and maintain in force (a) a
policy or policies of insurance covering errors and omissions in the
performance of its obligations as Master Servicer hereunder and (b) a fidelity
bond in respect of its officers, employees and agents. Each such policy or
policies 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. In the event that any such 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 requirements set forth
above as of the date of such replacement.
Section 3.20. Covenants and Representations of the Servicer
Regarding Prepayment Charges.
(a) The Servicer will not waive any Prepayment Charge or
part of a Prepayment Charge unless such waiver would maximize recovery of
total proceeds taking into account the value of such 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) and in no event will it 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 information set forth in the Prepayment Charge
Schedule (including the prepayment charge summary attached thereto) is
complete, true and correct in all material respects at the date or dates
respecting which such information is furnished and each Prepayment Charge is
permissible and enforceable in accordance with its terms (except to the extent
that the enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws relating to creditors' rights
generally) under applicable state law.
(c) Upon discovery by the Seller or a Responsible Officer of
the Trustee of a breach of the foregoing, which materially and adversely
affects the Holders of the Class X Certificate to any prepayment Charge, the
party discovering such breach shall give prompt written notice to the other
parties. Within 60 days of the earlier of discovery by the Servicer or receipt
of notice by the Servicer of breach, the Servicer shall cure such breach in
all material respects. If the covenant made by the Servicer in clause (a)
above is breached the Servicer must pay into the Collection Account the amount
of the waived Prepayment Charge. If the representation may by the Servicer in
clause (b) above is breached, the Servicer must pay into the Collection
Account the amount of the scheduled Prepayment Charge, less any amount
previously collected and paid by the Servicer into the Collection Account.
ARTICLE IV
DISTRIBUTIONS AND
ADVANCES BY THE MASTER SERVICER
Section 4.01. Advances.
The Master Servicer shall determine on or before each Master
Servicer Advance Date whether it is required to make an Advance pursuant to
the definition thereof. If the Master Servicer determines it is required to
make an Advance, it shall, on or before the Master Servicer Advance Date,
either (i) deposit into the Certificate Account an amount equal to the Advance
or (ii) make an appropriate entry in its records relating to the Certificate
Account that any Amount Held for Future Distribution has been used by the
Master Servicer in discharge of its obligation to make any such Advance. Any
funds so applied shall be replaced by the Master Servicer by deposit in the
Certificate Account no later than the close of business on the next Master
Servicer Advance Date. The Master Servicer shall be entitled to be reimbursed
from the Certificate Account for all Advances of its own funds made pursuant
to this Section 4.01 as provided in Section 3.09. The obligation to make
Advances with respect to any Mortgage Loan shall continue if such Mortgage
Loan has been foreclosed or otherwise terminated and the 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.
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 related Available Funds remaining:
(i) to the holders of each Class of Certificates in the
following order of priority:
(a) to the Class A Certificates for the related Certificate
Group, the related Accrued Certificate Interest Distribution Amount
and any Unpaid Interest Amounts for such Distribution Date;
(b) to the Class M-1 Certificates of such Certificate Group,
the Accrued Certificate Interest Distribution Amount for such Class
on such Distribution Date;
(c) to the Class M-2 Certificates of such Certificate Group,
the Accrued Certificate Interest Distribution Amount for such Class
on such Distribution Date;
(d) to the Class B Certificates of such Certificate Group, the
Accrued Certificate Interest Distribution Amount for such Class on
such Distribution Date;
(ii) A. with respect to each Certificate Group on each
Distribution Date (a) before the related Stepdown Date or (b) with respect to
which a Trigger Event is in effect, to the holders of the related Class or
Classes of Offered Certificates then entitled to distributions of principal as
set forth below, an amount equal to the related Principal Distribution Amount
in the following order of priority:
(x) (1) in the case of the Group 1 Certificates,
sequentially to the Class R and Class AF-1 Certificates, in
that order until the respective Class Certificate Balances
are reduced to zero;
(2) in the case of the Group 2 Certificates, to the Class
AV-1 Certificates until the Class Certificate Balance
thereof is reduced to zero;
(y) for each Certificate Group, sequentially to the related
Class M-1, Class M-2 and Class B Certificates, in that
order, until the respective Class Certificate Balances are
reduced to zero;
B. on each Distribution Date (a) on and after the
related Stepdown Date and (b) as long as a Trigger Event is not in effect, to
the holders of the related Class or Classes of Offered Certificates then
entitled to distribution of principal an amount equal to, in the aggregate,
the related Principal Distribution Amount in the following amounts and order
of priority:
(a) the lesser of (x) the Principal Distribution Amount and
(y) the Class A Principal Distribution Amount, in the following order
of priority:
(1) in the case of the Group 1 Certificates, to the Class
AF-1 Certificates, until the Class Certificate Balance
thereof is reduced to zero;
(2) in the case of the Group 2 Certificates, to the Class
AV-1 Certificates until the Class Certificate Balance
thereof is reduced to zero;
(b) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A
Certificateholders in clause (ii) B. (a) above and (y) the Class M-1
Principal Distribution Amount to the Class M-1 Certificateholders,
until the Class Certificate Balance thereof has been reduced to
zero;
(c) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A
Certificateholders in clause (ii) B. (a) above and to the Class M-1
Certificates in clause (ii) B. (b) above and (y) the Class M-2
Principal Distribution Amount to the Class M-2 Certificateholders,
until the Class Certificate Balance thereof has been reduced to
zero;
(d) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A
Certificateholders in clause (ii) B. (a) above, to the Class M-1
Certificates in clause (ii) B. (b) above and to the Class M-2
Certificates in clause (ii) B. (c) above and (y) the Class B
Principal Distribution Amount to the Class B Certificateholders,
until the Class Certificate Balance thereof has been reduced to
zero;
(iii) any amount remaining after the distributions in
clauses (i) and (ii) above shall be distributed in the following order of
priority with respect to the Certificates in the related Certificate Group:
(a) to fund the Extra Principal Distribution Amount for such
Distribution Date to be paid as a component of the Principal
Distribution Amount in the same order of priority as described in
clause (ii) above;
(b) to the holders of the Class M-1 Certificates, any Unpaid
Interest Amounts for such Class;
(c) to the holders of the Class M-1 Certificates, any Unpaid
Realized Loss Amount for such Class;
(d) to the holders of the Class M-2 Certificates, any Unpaid
Interest Amounts for such Class;
(e) to the holders of the Class M-2 Certificates, any Unpaid
Realized Loss Amount for such Class;
(f) to the holders of the Class B Certificates, any Unpaid
Interest Amounts for such Class;
(g) to the holders of the Class B Certificates, any Unpaid
Realized Loss Amount for such Class;
(h) to the Excess Reserve Fund Account, the amount of any
Basis Risk Payment for such Distribution Date;
(i) from funds on deposit in the Excess Reserve Fund Account,
an amount equal to any Basis Risk CarryForward Amount with respect
to any Adjustable Rate Certificate for such Distribution Date to the
Group 2 Certificates in the same order and priority in which Accrued
Certificate Interest is allocated among those Classes of
Certificates;
(j) to the holders of the Class X Certificate, the Class X
Distributable Amount; and
(iv) to the holders of the Class R Certificates, any
remaining amount.
On each Distribution Date, all amounts representing
Prepayment Charges and Master Servicer Prepayment Charge Payment Amounts from
the Mortgage Loans in each Loan Group received during the related Prepayment
Period will be distributed to the holders of the Class X Certificates.
Section 4.03. Monthly Statements to Certificateholders.
(a) Not later than each Distribution Date, the Trustee shall
prepare and cause to be forwarded by first class mail to each
Certificateholder, the Master Servicer and the Depositor a statement setting
forth with respect to the related distribution:
(ii) the amount thereof allocable to principal,
separately identifying the aggregate amount of any Principal
Prepayments and Liquidation Proceeds included therein;
(iii) the amount thereof allocable to interest, any
Unpaid Interest Amounts included in such distribution and
any remaining Unpaid Interest Amounts after giving effect to
such distribution, any Basis Risk CarryForward Amount for
such Distribution Date and the amount of all Basis Risk
Carry Forward Amount covered by withdrawals from the Excess
Reserve Fund Account on such Distribution Date;
(iv) if the distribution to the Holders of such Class of
Certificates is less than the full amount that would be
distributable to such Holders if there were sufficient funds
available therefor, the amount of the shortfall and the
allocation thereof as between principal and interest,
including any Basis Risk CarryForward Amount not covered by
amounts in the Excess Reserve Fund Account;
(v) the Class Certificate Balance of each Class of
Certificates after giving effect to the distribution of
principal on such Distribution Date;
(vi) the Pool Stated Principal Balance for the following
Distribution Date;
(vii) 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 such Distribution Date;
(viii) the Pass-Through Rate for each such Class of
Certificates with respect to such Distribution Date;
(ix) the amount of Advances included in the distribution
on such Distribution Date and the aggregate amount of
Advances outstanding as of the close of business on such
Distribution Date;
(x) the number and aggregate principal amounts of
Mortgage Loans in each Loan Group (A) delinquent (exclusive
of Mortgage Loans in foreclosure) (1) 1 to 30 days (2) 31 to
60 days (3) 61 to 90 days and (4) 91 or more days and (B) in
foreclosure and delinquent (1) 1 to 30 days (2) 31 to 60
days (3) 61 to 90 days and (4) 91 or more days, as of the
close of business on the last day of the calendar month
preceding such Distribution Date;
(xi) for each of the preceding 12 calendar months, or all
calendar months since the related Cut-off Date, whichever is
less, the aggregate dollar amount of the Scheduled Payments
(A) due on all Outstanding Mortgage Loans on each of the Due
Dates in each such month and (B) delinquent 60 days or more
on each of the Due Dates in each such month;
(xii) with respect to any Mortgage Loan that became an
REO Property during the preceding calendar month, the loan
number and Stated Principal Balance of such Mortgage Loan as
of the close of business on the Determination Date preceding
such Distribution Date and the date of acquisition thereof;
(xiii) 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 such
Distribution Date;
(xiv) whether a Trigger Event has occurred and is
continuing (including the calculation of thereof and the
aggregate outstanding balance of all 60+ Delinquent Loans)
(xv) the amount on deposit in the Excess Reserve Fund
Account (after giving effect to distributions on such
Distribution Date);
(xvi) the aggregate amount of Realized Losses incurred
during the preceding calendar month and aggregate Realized
Losses through such Distribution Date;
(xvii) the amount of any Net Monthly Excess Cash Flow on
such Distribution Date and the allocation thereof to the
Certificateholders with respect to Applied Realized Losses
and Unpaid Interest Amounts;
(xviii) with respect to the second Distribution Date, the
number and aggregate balance of any Delay Delivery Mortgage
Loans not delivered within the time periods specified in the
definition of Delay Delivery Mortgage Loans; and
(xix) with respect to each Loan Group, the Subordinated
Amount and Required Subordinated Amount.
(xx) Prepayment Charges collected, waived and paid by
Master Servicer.
(b) The Trustee's responsibility for disbursing the above
information to the Certificateholders is limited to the availability,
timeliness and accuracy of the information derived from the Master Servicer.
The Trustee will send a copy of each statement provided pursuant to this
Section 4.03 to each Rating Agency (including S&P's Residential Structured
Finance Department, Attention: Xx. Xxxx Xxxxxx) by first class mail.
(c) Within a reasonable period of time after the end of each
calendar year, the Trustee shall cause to be furnished to each Person who at
any time during the calendar year was a Certificateholder, a statement
containing the information set forth in clauses (a)(i), (a)(ii) and (a)(vii)
of this Section 4.03 aggregated for such calendar year or applicable portion
thereof during which such Person was a Certificateholder. Such obligation of
the Trustee shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the Trustee pursuant
to any requirements of the Code as from time to time in effect.
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 or
cause to be appointed another Reference Bank. The Trustee shall have no
liability or responsibility to any Person for (i) the selection of any
Reference Bank for purposes of determining LIBOR or (ii) any inability to
retain at least four Reference Banks which is caused by circumstances beyond
its reasonable control.
The Pass-Through Rate for each Class of LIBOR Certificates
for each Interest Accrual Period shall be determined by the Trustee on each
LIBOR Determination Date so long as the LIBOR Certificates are outstanding on
the basis of LIBOR and the respective formulae appearing in footnotes
corresponding to the LIBOR Certificates in the table relating to the
Certificates in the Preliminary Statement. The Trustee shall not have any
liability or responsibility to any Person for its inability, following a
good-faith reasonable effort, to obtain quotations from the Reference Banks or
to determine the arithmetic mean referred to in the definition of LIBOR, all
as provided for in this Section 4.07 and the definition of LIBOR. The
establishment of LIBOR and each Pass-Through Rate for the LIBOR Certificates
by the Trustee shall (in the absence of manifest error) be final, conclusive
and binding upon each Holder of a Certificate and the Trustee.
ARTICLE V
THE CERTIFICATES
Section 5.01. The Certificates.
The Certificates shall be substantially in the forms
attached hereto as exhibits. The Certificates shall be issuable in registered
form, in the minimum denominations, integral multiples in excess thereof
(except that one Certificate in each Class may be issued in a different amount
which must be in excess of the applicable minimum denomination) and aggregate
denominations per Class set forth in the Preliminary Statement.
Subject to Section 9.02 respecting the final distribution on
the Certificates, on each Distribution Date the Trustee shall make
distributions to each Certificateholder of record on the preceding Record Date
either (x) by wire transfer in immediately available funds to the account of
such holder at a bank or other entity having appropriate facilities therefor,
if (i) such Holder has so notified the Trustee at least five Business Days
prior to the related Record Date and (ii) such Holder shall hold (A) 100% of
the Class Certificate Balance of any Class of Certificates or (B) Certificates
of any Class with aggregate principal Denominations of not less than
$1,000,000 or (y) by check mailed by first class mail to such
Certificateholder at the address of such holder appearing in the Certificate
Register.
The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee by 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 prior to the countersignature and delivery of
any such Certificates or did not hold such offices at the date of such
Certificate. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless countersigned by the Trustee by
manual signature, and such countersignature upon any Certificate shall be
conclusive evidence, and the only evidence, that such Certificate has been
duly executed and delivered hereunder. All Certificates shall be dated the
date of their countersignature. On the Closing Date, the Trustee shall
countersign the Certificates to be issued at the direction of the Depositor,
or any affiliate thereof.
The Depositor shall provide, or cause to be provided, 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, or cause to be maintained in
accordance with the provisions of Section 5.06, a Certificate Register for the
Trust Fund in which, subject to the provisions of subsections (b) and (c)
below and to such reasonable regulations as it may prescribe, the Trustee
shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. Upon surrender for registration
of transfer of any Certificate, the Trustee shall execute and deliver, in the
name of the designated transferee or transferees, one or more new Certificates
of the same Class and aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be
exchanged for other Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest upon surrender of the
Certificates to be exchanged at the office or agency of the Trustee. Whenever
any Certificates are so surrendered for exchange, the Trustee shall execute,
authenticate, and deliver the Certificates which the Certificateholder making
the exchange is entitled to receive. Every Certificate presented or
surrendered for registration of transfer or exchange shall be accompanied by a
written instrument of transfer in form satisfactory to the Trustee duly
executed by the holder thereof or his attorney duly authorized in writing.
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 such state securities
laws. In the event that a transfer is to be made in reliance upon an exemption
from the Securities Act and such laws, in order to assure compliance with the
Securities Act and such laws, the Certificateholder desiring to effect such
transfer shall certify to the Trustee in writing the facts surrounding the
transfer in substantially the form set forth in Exhibit J (the "Transferor
Certificate") and either (i) there shall be delivered to the Trustee a letter
in substantially the form of Exhibit L (the "Rule 144A Letter") or (ii) there
shall be delivered to the Trustee at the expense of the transferor an Opinion
of Counsel that such 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 any such Holder,
information regarding the related Certificates and the Mortgage Loans and such
other information as shall be necessary to satisfy the condition to
eligibility set forth in Rule 144A(d)(4) for transfer of any such 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 as the Depositor shall reasonably
request to meet its obligation under the preceding sentence. Each Holder of a
Private Certificate desiring to effect such transfer shall, and does hereby
agree to, indemnify the Trustee and the Depositor, the Seller and the Master
Servicer against any liability that may result if the transfer is not so
exempt or is not made in accordance with such federal and state laws.
No transfer of an ERISA-Restricted Certificate shall be made
unless the Trustee shall have received either (i) a representation from the
transferee of such Certificate acceptable to and in form and substance
satisfactory to the Trustee (in the event such Certificate is a Private
Certificate or a Residual Certificate, such 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 such 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 such transfer, or (ii) if the ERISA-Restricted
Certificate is a Private Certificate that has been the subject of an
ERISA-Qualifying Underwriting, a Subordinated Certificate or a Residual
Certificate, if the purchaser is an insurance company, a representation that
the purchaser is an insurance company that is purchasing such Certificates
with funds contained in an "insurance company general account" (as such term
is defined in Section V(e) of Prohibited Transaction Class Exemption 95-60
("PTCE 95-60") and that the purchase and holding of such Certificates are
covered under Sections I and III of PTCE 95-60 or (iii) in the case of any
such ERISA-Restricted Certificate presented for registration in the name of an
employee benefit plan subject to ERISA, or a plan or arrangement subject to
Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee of any such plan or any other person acting on
behalf of any such plan or arrangement or using such plan's or arrangement's
assets, an Opinion of Counsel satisfactory to the Trustee and the Master
Servicer, which Opinion of Counsel shall not be an expense of the Trustee, the
Master Servicer or the Trust Fund, addressed to the Trustee, to the effect
that the purchase or holding of such ERISA-Restricted Certificate will not
result in the assets of the Trust Fund being deemed to be "plan assets" and
subject to the prohibited transaction provisions of ERISA and the Code and
will not subject the Trustee or the Master Servicer to any obligation in
addition to those expressly undertaken in this Agreement or to any liability.
For purposes of the preceding sentence, with respect to an ERISA-Restricted
Certificate that is not a Private Certificate or a Residual Certificate, in
the event the representation letter referred to in the preceding sentence is
not furnished, such representation shall be deemed to have been made to the
Trustee by the transferee's (including an initial acquiror's) acceptance of
the ERISA-Restricted Certificates. 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.
To the extent permitted under applicable law (including, but
not limited to, ERISA), the Trustee shall be under no liability to any Person
for any registration of transfer of any ERISA-Restricted Certificate that is
in fact not permitted by this Section 5.02(b) or for making any payments due
on such Certificate to the Holder thereof or taking any other action with
respect to such Holder under the provisions of 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:
(ii) Each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall be a Permitted
Transferee and shall promptly notify the Trustee of any
change or impending change in its status as a Permitted
Transferee.
(iii) No Ownership Interest in a Residual Certificate
may be registered on the Closing Date or thereafter
transferred, and the Trustee shall not register the Transfer
of any Residual Certificate unless, in addition to the
certificates required to be delivered to the Trustee under
subparagraph (b) above, the Trustee shall have been
furnished with an affidavit (a "Transfer Affidavit") of the
initial owner or the proposed transferee in the form
attached hereto as Exhibit I.
(iv) 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.
(v) Any attempted or purported Transfer of any Ownership
Interest in a Residual Certificate in violation of the
provisions of this Section 5.02(c) shall be absolutely null
and void and shall vest no rights in the purported
Transferee. If any purported transferee shall become a
Holder of a Residual Certificate in violation of the
provisions of this Section 5.02(c), then the last preceding
Permitted Transferee shall be restored to all rights as
Holder thereof retroactive to the date of registration of
Transfer of such Residual Certificate. The Trustee shall be
under no liability to any Person for any registration of
Transfer of a Residual Certificate that is in fact not
permitted by Section 5.02(b) and this Section 5.02(c) or for
making any payments due on such Certificate to the Holder
thereof or taking any other action with respect to such
Holder under the provisions of this Agreement so long as the
Transfer was registered after receipt of the 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.
(vi) The Depositor shall use its best efforts to make
available, upon receipt of written request from the Trustee,
all information necessary to compute any tax imposed under
Section 860E(e) of the Code as a result of a Transfer of an
Ownership Interest in a Residual Certificate to any Holder
who is not a Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set
forth in this Section 5.02(c) shall cease to apply (and the applicable
portions of the legend on a Residual Certificate may be deleted) with respect
to Transfers occurring after delivery to the Trustee of an Opinion of Counsel,
which Opinion of Counsel shall not be an expense of the Trust Fund, the
Trustee, the Seller or the Master Servicer, to the effect that the elimination
of such restrictions will not cause the Trust Fund hereunder to fail to
qualify as a REMIC at any time that the Certificates are outstanding or result
in the imposition of any tax on the Trust Fund, a Certificateholder or another
Person. Each Person holding or acquiring any Ownership Interest in a Residual
Certificate hereby consents to any amendment of this Agreement which, based on
an Opinion of Counsel furnished to the Trustee, is reasonably necessary (a) to
ensure that the record ownership of, or any beneficial interest in, a Residual
Certificate is not transferred, directly or indirectly, to a Person that is
not a Permitted Transferee and (b) to provide for a means to compel the
Transfer of a Residual Certificate which is held by a Person that is not a
Permitted Transferee to a Holder that is a Permitted Transferee.
(d) The preparation and delivery of all certificates and
opinions referred to above in this Section 5.02 in connection with transfer
shall be at the expense of the parties to such transfers.
(e) Except as provided below, the Book-Entry Certificates
shall at all times remain registered in the name of the Depository or its
nominee and at all times: (i) registration of the Certificates may not be
transferred by the Trustee except to another Depository; (ii) the Depository
shall maintain book-entry records with respect to the Certificate Owners and
with respect to ownership and transfers of such Book-Entry Certificates; (iii)
ownership and transfers of registration of the Book-Entry Certificates on the
books of the Depository shall be governed by applicable rules established by
the Depository; (iv) the Depository may collect its usual and customary fees,
charges and expenses from its Depository Participants; (v) the Trustee shall
deal with the Depository, Depository Participants and indirect participating
firms as representatives of the Certificate Owners of the Book-Entry
Certificates for purposes of exercising the rights of holders under this
Agreement, and requests and directions for and votes 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 such Certificate
Owner. Each Depository Participant shall only transfer Book-Entry Certificates
of Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
If (x) (i) the Depository or the Depositor advises the
Trustee in writing that the Depository is no longer willing or able to
properly discharge its responsibilities as Depository, and (ii) the Trustee or
the Depositor is unable to locate a qualified successor, (y) the Depositor at
its option advises the Trustee in writing that it elects to terminate the
book-entry system through the Depository or (z) after the occurrence of an
Event of Default, Certificate Owners representing at least 51% of the
Certificate Balance of the Book-Entry Certificates together advise the Trustee
and the Depository through the Depository Participants in writing that the
continuation of a book-entry system through the Depository is no longer in the
best interests of the Certificate Owners, the Trustee shall notify all
Certificate Owners, through the Depository, of the occurrence of any such
event and of the availability of definitive, fully-registered Certificates
(the "Definitive Certificates") to Certificate Owners requesting the same.
Upon surrender to the Trustee of the related Class of Certificates by the
Depository, accompanied by the instructions from the Depository for
registration, the Trustee shall issue the Definitive Certificates. Neither the
Master Servicer, the Depositor nor the Trustee shall be liable for any delay
in delivery of such instruction and each may conclusively rely on, and shall
be protected in relying on, such instructions. The Master Servicer shall
provide the Trustee with an adequate inventory of certificates to facilitate
the issuance and transfer of Definitive Certificates. Upon the issuance of
Definitive Certificates all references herein to obligations imposed upon or
to be performed by the Depository shall be deemed to be imposed upon and
performed by the Trustee, to the extent applicable with respect to such
Definitive Certificates and the Trustee shall recognize the Holders of the
Definitive Certificates as Certificateholders hereunder; provided that the
Trustee shall not by virtue of its assumption of such obligations become
liable to any party for any act or failure to act of the Depository.
Section 5.03. Mutilated, Destroyed, Lost or Stolen
Certificates.
If (a) any mutilated Certificate is surrendered to the
Trustee, or the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there is delivered to
the Master Servicer and the Trustee such security or indemnity as may be
required by them to hold each of them harmless, then, in the absence of notice
to the Trustee that such Certificate has been acquired by a bona fide
purchaser, the Trustee shall execute, countersign and deliver, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like Class, tenor and Percentage Interest. In connection with
the issuance of any new Certificate under this Section 5.03, the Trustee may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewith. Any
replacement Certificate issued pursuant to this Section 5.03 shall constitute
complete and indefeasible evidence of ownership, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
Section 5.04. Persons Deemed Owners.
The Master Servicer, the Trustee and any agent of the Master
Servicer or the Trustee may treat the Person in whose name any Certificate is
registered as the owner of such Certificate for the purpose of receiving
distributions as provided in this Agreement and for all other purposes
whatsoever, and neither the Master Servicer, the Trustee nor any agent of the
Master Servicer or the Trustee shall be affected by any notice to the
contrary.
Section 5.05. Access to List of Certificateholders' Names
and Addresses.
If three or more Certificateholders (a) request such
information in writing from the Trustee, (b) state that such
Certificateholders desire to communicate with other Certificateholders with
respect to their rights under this Agreement or under the Certificates, and
(c) provide a copy of the communication which such Certificateholders propose
to transmit, or if the Depositor or Master Servicer shall request such
information in writing from the Trustee, then the Trustee shall, within ten
Business Days after the receipt of such request, provide the Depositor, the
Master Servicer or such Certificateholders at such recipients' expense the
most recent list of the Certificateholders of such Trust Fund held by the
Trustee, if any. The Depositor and every Certificateholder, by receiving and
holding a Certificate, agree that the Trustee shall not be held accountable by
reason of the disclosure of any such information as to the list of the
Certificateholders hereunder, regardless of the source from which such
information was derived.
Section 5.06. Maintenance of Office or Agency.
The Trustee will maintain or cause to be maintained at its
expense an office or offices or agency or agencies in New York City where
Certificates may be surrendered for registration of transfer or exchange. The
Trustee initially designates its Corporate Trust Office for such purposes. The
Trustee will give prompt written notice to the Certificateholders of any
change in such location of any such office or agency.
ARTICLE VI
THE DEPOSITOR AND THE MASTER SERVICER
Section 6.01. Respective Liabilities of the Depositor and
the Master Servicer.
The Depositor and the Master Servicer shall each be liable
in accordance herewith only to the extent of the obligations specifically and
respectively imposed upon and undertaken by them herein.
Section 6.02. Merger or Consolidation of the Depositor or
the Master Servicer.
The Depositor and the Master Servicer will each keep in full
effect its existence, rights and franchises as a corporation or federal
savings bank, as the case may be, under the laws of the United States or under
the laws of one of the states thereof and will each obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its respective duties under this Agreement.
Any Person into which the Depositor or the Master Servicer
may be merged or consolidated, or any Person resulting from any merger or
consolidation to which the Depositor or the Master Servicer shall be a party,
or any person succeeding to the business of the Depositor or the Master
Servicer, shall be the successor of the Depositor or the Master Servicer, as
the case may be, hereunder, without the execution or filing of any paper or
any further act on the part of any of the parties hereto, anything herein to
the contrary notwithstanding; provided, however, that the successor or
surviving Person to the Master Servicer shall be qualified to sell mortgage
loans to, and to service mortgage loans on behalf of, FNMA or FHLMC.
Section 6.03. Limitation on Liability of the Depositor, the
Seller, the Master Servicer and Others.
None of the Depositor, the Seller, the Master Servicer or
any of the directors, officers, employees or agents of the Depositor, the
Seller or the Master Servicer shall be under any liability to the
Certificateholders for any action taken or for refraining from the taking of
any action in good faith pursuant to this Agreement, or for errors in
judgment; provided, however, that this provision shall not protect the
Depositor, the Seller, the Master Servicer or any such Person against any
breach of representations or warranties made by it herein or protect the
Depositor, the Seller, the Master Servicer or any such Person from any
liability which would otherwise be imposed by reasons of willful misfeasance,
bad faith or gross negligence in the performance of duties or by reason of
reckless disregard of obligations and duties hereunder. The Depositor, the
Seller, the Master Servicer and any director, officer, employee or agent of
the Depositor, the Seller or the Master Servicer may rely in good faith on any
document of any kind prima facie properly executed and submitted by any Person
respecting any matters arising hereunder. The Depositor, the Seller, the
Master Servicer and any director, officer, employee or agent of the Depositor,
the Seller or the Master Servicer shall be indemnified by the Trust Fund and
held harmless against any loss, liability or expense incurred in connection
with any audit, controversy or judicial proceeding relating to a governmental
taxing authority or any legal action relating to this Agreement or the
Certificates, other than any loss, liability or expense related to any
specific Mortgage Loan or Mortgage Loans (except as any such loss, liability
or expense shall be otherwise reimbursable pursuant to this Agreement) and any
loss, liability or expense incurred by reason of willful misfeasance, bad
faith or gross negligence in the performance of duties hereunder or by reason
of reckless disregard of obligations and duties hereunder. None of the
Depositor, the Seller or the Master Servicer shall be under any obligation to
appear in, prosecute or defend any legal action that is not incidental to its
respective duties hereunder and which in its opinion may involve it in any
expense or liability; provided, however, that any of the Depositor, the Seller
or the Master Servicer may in its discretion undertake any such action that it
may deem necessary or desirable in respect of this Agreement and the rights
and duties of the parties hereto and interests of the Trustee and the
Certificateholders hereunder. In such event, the legal expenses and costs of
such action and any liability resulting therefrom shall be expenses, costs and
liabilities of the Trust Fund, and the Depositor, the Seller and the Master
Servicer shall be entitled to be reimbursed therefor out of the Certificate
Account.
Section 6.04. Limitation on Resignation of the Master
Servicer.
The Master Servicer shall not resign from the obligations
and duties hereby imposed on it except (a) upon appointment of a successor
servicer and receipt by the Trustee of a letter from each Rating Agency that
such a resignation and appointment will not result in a downgrading of the
rating of any of the Certificates or (b) upon determination that its duties
hereunder are no longer permissible under applicable law. Any such
determination under clause (b) permitting the resignation of the Master
Servicer shall be evidenced by an Opinion of Counsel to such effect delivered
to the Trustee. No such resignation shall become effective until the Trustee
or a successor master servicer shall have assumed the Master Servicer's
responsibilities, duties, liabilities and obligations hereunder.
ARTICLE VII
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 the
terms of this Agreement, which failure shall continue unremedied for five days
after the date upon which written notice of such failure shall have been given
to the Master Servicer by the Trustee or the Depositor or to the Master
Servicer and the Trustee by the Holders of Certificates of any Class
evidencing not less than 25% of the aggregate Percentage Interests of such
Class; or
(b) any failure by the Master Servicer to observe or perform
in any material respect any other of the covenants or agreements on the part
of the Master Servicer contained in this Agreement, which failure materially
affects the rights of Certificateholders and continues unremedied for a period
of 60 days after the date on which written notice of such failure shall have
been given to the Master Servicer by the Trustee or the Depositor, or to the
Master Servicer and the Trustee by the Holders of Certificates of any Class
evidencing not less than 25% of the Percentage Interests of such 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.
If an Event of Default described in clauses (a) through (e)
of this Section 7.01 shall occur, then, and in each and every such case, so
long as such Event of Default shall not have been remedied, the Trustee may,
or at the direction of the Holders of Certificates of any Class evidencing not
less than 66-2/3% of the Percentage Interests of such 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 and to 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 which the Master Servicer failed to make subject to
Section 3.03, whether or not the obligations of the Master Servicer have been
terminated pursuant to this Section. The Trustee is hereby authorized and
empowered to execute and deliver, on behalf of the Master Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments,
and to do or accomplish all other acts or things necessary or appropriate to
effect the purposes of such notice of termination, whether to complete the
transfer and endorsement 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, without limitation, the
transfer to the Trustee of all cash amounts which shall at the time be
credited to the Certificate Account, or thereafter be received with respect to
the Mortgage Loans.
Notwithstanding any termination of the activities of the
Master Servicer hereunder, the Master Servicer shall be entitled to receive,
out of any late collection of a Scheduled Payment on a Mortgage Loan which was
due prior to the notice terminating such Master Servicer's rights and
obligations as Master Servicer hereunder and received after such notice, that
portion thereof to which such Master Servicer would have been entitled
pursuant to Sections 3.11(a)(i) through (viii), and any other amounts payable
to such Master Servicer hereunder the entitlement to which arose prior to the
termination of its activities hereunder.
Section 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer receives a notice
of termination pursuant to Section 7.01, the Trustee shall, subject to and to
the extent provided in Section 3.05, be the successor to the Master Servicer
in its capacity as master servicer under this Agreement and the transactions
set forth or provided for herein and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the Master
Servicer by the terms and provisions hereof and applicable law including the
obligation to make Advances pursuant to Section 4.01. As compensation
therefor, the Trustee shall be entitled to all funds relating to the Mortgage
Loans that the Master Servicer would have been entitled to charge to the
Certificate Account or Distribution Account if the Master Servicer had
continued to act hereunder including, if the Master Servicer was receiving the
Servicing Fee, the Servicing Fee. Notwithstanding the foregoing, if the
Trustee has become the successor to the Master Servicer in accordance with
Section 7.01, the Trustee may, if it shall be unwilling to so act, or shall,
if it is prohibited by applicable law from making Advances pursuant to Section
4.01 or if it is otherwise unable to so act, appoint, or petition a court of
competent jurisdiction to appoint, any established mortgage loan servicing
institution the appointment of which does not adversely affect the then
current rating of the Certificates by each Rating Agency, as the successor to
the Master Servicer hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Master Servicer hereunder. Any
successor to the Master Servicer shall be an institution which is a FNMA and
FHLMC approved seller/servicer in good standing, which has a net worth of at
least $15,000,000, which is willing to service the Mortgage Loans and which
executes and delivers to the Depositor and the Trustee an agreement accepting
such delegation and assignment, containing an assumption by such Person of the
rights, powers, duties, responsibilities, obligations and liabilities of the
Master Servicer (other than liabilities of the Master Servicer under Section
6.03 incurred prior to 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 prior to such assignment and delegation will not be
qualified or reduced, as a result of such assignment and delegation. Pending
appointment of a successor to the Master Servicer hereunder, the Trustee,
unless the Trustee is prohibited by law from so acting, shall, subject to
Section 3.05, act in such capacity as hereinabove provided. In connection with
such appointment and assumption, the Trustee may make such arrangements for
the compensation of such successor out of payments on Mortgage Loans as it and
such successor shall agree; provided, however, that no such compensation shall
be in excess of the Master Servicing Fee Rate plus, if the Master Servicer was
receiving the Servicing Fee, the Servicing Fee Rate. The Trustee and such
successor shall take such action, consistent with this Agreement, as shall be
necessary to effectuate any such succession. Neither the Trustee nor any other
successor master servicer shall be deemed to be in default hereunder by reason
of any failure to make, or any delay in making, any distribution hereunder or
any portion thereof or any failure to perform, or any delay in performing, any
duties or responsibilities hereunder, in either case caused by the failure of
the Master Servicer to deliver or provide, or any delay in delivering or
providing, any cash, information, documents or records to it.
Any successor to the Master Servicer as master servicer
shall give notice to the Mortgagors of such change of servicer and shall,
during the term of its service as master servicer, maintain in force the
policy or policies that the Master Servicer is required to maintain pursuant
to Section 6.05.
Section 7.03. Notification to Certificateholders.
(a) Upon any termination of or appointment of a successor to
the Master Servicer, the Trustee shall give prompt written notice thereof to
Certificateholders and to each Rating Agency.
(b) Within 60 days after the occurrence of any Event of
Default, the Trustee shall transmit by mail to all Certificateholders and each
Rating Agency notice of each such Event of Default hereunder known to the
Trustee, unless such Event of Default shall have been cured or waived.
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01. Duties of the Trustee.
The Trustee, prior to the occurrence of an Event of Default
and after the curing of all Events of Default that may have occurred, shall
undertake to perform such duties and only such duties as are specifically set
forth in this Agreement. In case an Event of Default has occurred and remains
uncured, the Trustee shall exercise such of the rights and powers vested in it
by this Agreement, and use the same degree of care and skill in their exercise
as a prudent person would exercise or use under the circumstances in the
conduct of such person's own affairs.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments
furnished to the Trustee that are specifically required to be furnished
pursuant to any provision of this Agreement shall examine them to determine
whether they are in the form required by this Agreement; provided, however,
that the Trustee shall not be responsible for the accuracy or content of any
such resolution, certificate, statement, opinion, report, document, order or
other instrument.
No provision of this Agreement shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct; provided, however, that:
(a) unless an Event of Default known to the Trustee shall
have occurred and be continuing, the duties and obligations of the Trustee
shall be determined solely by the express provisions of this Agreement, the
Trustee shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement against the Trustee
and the Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the requirements of this
Agreement which it believed in good faith to be genuine and to have been duly
executed by the proper authorities respecting any matters arising hereunder;
(b) the Trustee shall not be liable for an error of judgment
made in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be finally proven that the Trustee was negligent in
ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Holders of Certificates evidencing not less
than 25% of the Voting Rights of Certificates relating to the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee under this Agreement.
Section 8.02. Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(a) the Trustee may request and rely upon and shall be
protected in acting or refraining from acting upon any resolution, Officer's
Certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal, bond
or other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties and the Trustee shall have
no responsibility to ascertain or confirm the genuineness of any signature of
any such party or parties;
(b) the Trustee may consult with counsel, financial advisers
or accountants and the advice of any such counsel, financial advisers or
accountants and any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such Opinion of
Counsel;
(c) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Agreement;
(d) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond
or other paper or document, unless requested in writing so to do by Holders of
Certificates evidencing not less than 25% of the Voting Rights allocated to
each Class of Certificates;
(e) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents, accountants or attorneys and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agents, accountants or
attorneys appointed with due care by it hereunder;
(f) the Trustee shall not be required to risk or expend its
own funds or otherwise incur any financial liability in the performance of any
of its duties or in the exercise of any of its rights or powers hereunder if
it shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not assured to it;
(g) the Trustee shall not be liable for any loss on any
investment of funds pursuant to this Agreement (other than as issuer of the
investment security);
(h) the Trustee shall not be deemed to have knowledge of an
Event of Default until a Responsible Officer of the Trustee shall have
received written notice thereof; and
(i) the Trustee shall be under no obligation to exercise any
of the trusts, rights or powers vested in it by this Agreement or to
institute, conduct or defend any litigation hereunder or in relation hereto at
the request, order or direction of any of the Certificateholders, pursuant to
the provisions of this Agreement, unless such Certificateholders shall have
offered to the Trustee reasonable security or indemnity satisfactory to the
Trustee against the costs, expenses and liabilities which may be incurred
therein or thereby.
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 Certificates are executed by the Trustee, 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.
The Trustee, as compensation for its activities hereunder,
shall be entitled to withdraw from the Distribution Account on each
Distribution Date an amount equal to the Trustee Fee for such Distribution
Date. The Trustee and any director, officer, employee or agent of the Trustee
shall be indemnified by the Master Servicer and held harmless against any
loss, liability or expense (including reasonable attorney's fees) (i) 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
hereunder, other than any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of any of the
Trustee's duties hereunder and (ii) resulting from any error in any tax or
information return prepared by the Master Servicer. Such indemnity shall
survive the termination of this Agreement or the resignation or removal of the
Trustee hereunder. Without limiting the foregoing, the Master Servicer
covenants and agrees, except as otherwise agreed upon in writing by the
Depositor and the Trustee, and except for any such expense, disbursement or
advance as may arise from the Trustee's negligence, bad faith or willful
misconduct, to pay or reimburse the Trustee, for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Agreement with respect to (A) the reasonable
compensation and the 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 such persons to perform acts or services hereunder and
(C) printing and engraving expenses in connection with preparing any
Definitive Certificates. Except as otherwise provided herein, 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 hereunder 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 super-vision or examination by federal or state authority and with
a credit rating which would not cause either of the Rating Agencies to reduce
their respective then current ratings of the Certificates (or having provided
such security from time to time as is sufficient to avoid such reduction) as
evidenced in writing by each Rating Agency. If such corporation or association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 8.06 the combined capital and surplus of such
corporation or association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 8.06, the Trustee shall resign immediately in the
manner and with the effect specified in Section 8.07. The entity serving as
Trustee may have normal banking and trust relationships with the Depositor and
its affiliates or the Master Servicer and its affiliates; provided, however,
that such entity cannot be an affiliate of the Seller, the Depositor or the
Master Servicer other than the Trustee in its role as successor to the Master
Servicer.
Section 8.07. Resignation and Removal of the Trustee.
The Trustee may at any time resign and be discharged from
the trusts hereby created by giving written notice of resignation to the
Depositor, the Master Servicer, each Rating Agency not less than 60 days
before the date specified in such notice, when, subject to Section 8.08, such
resignation is to take effect, and acceptance by a successor trustee in
accordance with Section 8.08 meeting the qualifications set forth in Section
8.06. If no successor trustee meeting such qualifications shall have been so
appointed and have accepted appointment within 30 days after the giving of
such notice or resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request thereto by the Depositor, or if at any time the Trustee shall
become incapable of acting, or shall be adjudged as bankrupt or insolvent, or
a receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, or a
tax is imposed with respect to the Trust Fund by any state in which the
Trustee or the Trust Fund is located and the imposition of such tax would be
avoided by the appointment of a different trustee, then the Depositor or the
Master Servicer may remove the Trustee and appoint a successor trustee by
written instrument, in triplicate, one copy of which shall be delivered to the
Trustee, one copy to the Master Servicer and one copy to the successor
trustee.
The Holders of Certificates entitled to at least 51% of the
Voting Rights may at any time remove the Trustee and appoint a successor
trustee by written instrument or instruments, in triplicate, signed by such
Holders or their attorneys-in-fact duly authorized, one complete set of which
shall be delivered by the successor Trustee to the Master Servicer, one
complete set to the Trustee so removed and one complete set to the successor
so appointed. Notice of any removal of the Trustee shall be given to each
Rating Agency by the successor trustee.
Any resignation or removal of the Trustee and appointment of
a successor trustee pursuant to any of the provisions of this Section 8.07
shall become effective upon acceptance of appointment by the successor trustee
as provided in Section 8.08.
Section 8.08. Successor Trustee.
Any successor trustee appointed as provided in Section 8.07
shall execute, acknowledge and deliver to the Depositor and to its predecessor
trustee and the Master Servicer an instrument accepting such appointment
hereunder and thereupon the resignation or removal of the predecessor trustee
shall become effective and such successor trustee, without any further act,
deed or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor hereunder, with the like effect as
if originally named as trustee herein. The Depositor, the Master Servicer and
the predecessor trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for more fully and certainly
vesting and confirming in the successor trustee all such rights, powers,
duties, and obligations.
No successor trustee shall accept appointment as provided in
this Section 8.08 unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 8.06 and its appointment
shall 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 all Holders of Certificates. If the
Depositor fails to mail such notice within 10 days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such
notice to be mailed at the expense of the Depositor.
Section 8.09. Merger or Consolidation of the Trustee.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to the business of the Trustee, shall be
the successor of the Trustee hereunder, provided that such corporation shall
be eligible under the provisions of Section 8.06 without the execution or
filing of any paper or further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
Section 8.10. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at
any time, for the purpose of meeting any legal requirements of any
jurisdiction in which any part of the Trust Fund or property securing any
Mortgage Note may at the time be located, the Master Servicer and the Trustee
acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Trustee to act as
co-trustee or co-trustees jointly with the Trustee, or separate trustee or
separate trustees, of all or any part of the Trust Fund, and to vest in such
Person or Persons, in such capacity and for the benefit of the
Certificateholders, such title to the Trust Fund or any part thereof,
whichever is applicable, and, subject to the other provisions of this Section
8.10, such powers, duties, obligations, rights and trusts as the Master
Servicer and the Trustee may consider necessary or desirable. If the Master
Servicer shall not have joined in such appointment within 15 days after the
receipt by it of a request to do so, or in the case an Event of Default shall
have occurred and be continuing, the Trustee alone shall have the power to
make such appointment. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
8.06 and no notice to Certificateholders of the appointment of any co-trustee
or separate trustee shall be required under Section 8.08.
Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(a) To the extent necessary to effectuate the purposes of
this Section 8.10, all rights, powers, duties and obligations conferred or
imposed upon the Trustee, except for the obligation of the Trustee under this
Agreement to advance funds on behalf of the Master Servicer, shall be
conferred or imposed upon and exercised or performed by the Trustee and such
separate trustee or co-trustee jointly (it being understood that such separate
trustee or co-trustee is not authorized to act separately without the Trustee
joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed (whether
as Trustee hereunder or as successor to the Master Servicer hereunder), the
Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to the applicable Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate trustee
or co-trustee, but solely at the direction of the Trustee;
(b) No trustee hereunder shall be held personally liable by
reason of any act or omission of any other trustee hereunder and such
appointment shall not, and shall not be deemed to, constitute any such
separate trustee or co-trustee as agent of the Trustee;
(c) The Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee; and
(d) The Master Servicer, and not the Trustee, shall be
liable for the payment of reasonable compensation, reimbursement and
indemnification to any such separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the separate trustees and
co-trustees, when and as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to this
Agreement and the conditions of this Article VIII. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject to
all the provisions of this Agreement, specifically including every provision
of this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be filed
with the Trustee and a copy thereof given to the Master Servicer and the
Depositor.
Any separate trustee or co-trustee may, at any time,
constitute the Trustee its agent or attorney-in-fact, with full power and
authority, to the extent not prohibited by law, to do any lawful act under or
in respect of this Agreement on its behalf and in its name. If any separate
trustee or co-trustee shall die, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Trustee, to the extent permitted by law,
without the appointment of a new or successor trustee.
Section 8.11. Tax Matters.
It is intended that the assets with respect to which any
REMIC election pertaining to the Trust Fund is to be made, as set forth in the
Preliminary Statement, shall constitute, and that the conduct of matters
relating to such assets shall be such as to qualify such assets as, a "real
estate mortgage investment conduit" as defined in and in accordance with the
REMIC Provisions. In furtherance of such intention, the Trustee covenants and
agrees that it shall act as agent (and the Trustee is hereby appointed to act
as agent) on behalf of any such REMIC and that in such capacity it shall: (a)
prepare and file, or cause to be prepared and filed, 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 or cause to be prepared and filed with the Internal Revenue Service and
applicable state or local tax authorities income tax or information returns
for each taxable year with respect to any such REMIC, 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 or cause to be
furnished 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 or cause to be furnished 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 or cause to be made an election that such assets 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, or cause to be prepared and
forwarded, 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 without limitation, the calculation of any original
issue discount using the Prepayment Assumption (as defined in the Prospectus
Supplement); (e) provide information necessary for the computation of tax
imposed on the transfer of a Residual Certificate to a Person that is not a
Permitted Transferee, or an agent (including a broker, nominee or other
middleman) of a Non-Permitted Transferee, or a pass-through entity in which a
Non-Permitted Transferee is the record holder of an interest (the reasonable
cost of computing and furnishing such information may be charged to the Person
liable for such tax); (f) to the extent that they are under its control,
conduct matters relating to such assets at all times that any Certificates are
outstanding so as to maintain the status as a REMIC under the REMIC
Provisions; (g) not knowingly or intentionally take any action or omit to take
any action that would cause the termination of the REMIC status; (h) pay, from
the sources specified in the last paragraph of this Section 8.11, the amount
of any federal or state tax, including prohibited transaction taxes as
described below, imposed on such REMIC prior to 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 such REMIC, including
but not limited to 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 such REMIC in any administrative or
judicial proceedings relating to an examination or audit by any governmental
taxing authority, request an administrative adjustment as to any taxable year
of such REMIC, enter into settlement agreements with any governmental taxing
agency, extend any statute of limitations relating to any tax item of such
REMIC, and otherwise act on behalf of such REMIC in relation to any tax matter
or controversy involving it.
In order to enable the Trustee to perform its duties as set
forth herein, the Depositor shall provide, or cause to be provided, to the
Trustee within ten (10) 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,
without limitation, the price, yield, prepayment assumption and projected cash
flows of the Certificates and the Mortgage Loans. Moreover, in the case of
each Class of Adjustable Rate Certificates, the Depositor shall provide
information to the Trustee concerning the value to each such Class of the
right to receive Basis Risk CarryForward Amounts from the Excess Reserve Fund.
Thereafter, the Depositor shall provide to the Trustee promptly upon written
request therefor any such additional information or data that the Trustee may,
from time to time, reasonably request in order to enable the Trustee to
perform its duties as set forth herein. 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.
In the event that any tax is imposed on "prohibited
transactions" of such REMIC as defined in Section 860F(a)(2) of the Code, on
the "net income from foreclosure property" of such REMIC as defined in Section
860G(c) of the Code, on any contribution to such REMIC after the Startup Day
pursuant to Section 860G(d) of the Code, or any other tax is imposed,
including, without limitation, any minimum tax imposed upon such REMIC
pursuant to Sections 23153 and 24874 of the California Revenue and Taxation
Code, if not paid as otherwise provided for herein, such tax shall be paid by
(i) the Trustee, if any such other tax arises out of or results from
negligence of the Trustee in the performance of any of its obligations under
this Agreement, (ii) the 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 or
(iii) the Seller, if any such tax arises out of or results from the Seller's
obligation to repurchase a Mortgage Loan pursuant to Section 2.02 or 2.03 or
(iv) in all other cases, or in the event that 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.
Pursuant to written instructions from the Depositor, the
Trustee shall prepare, execute and file all periodic reports required under
the Securities Exchange Act of 1934 in conformity with the terms of the relief
granted to issuers similar to the Trust Fund. In connection with the
preparation and filing of such periodic reports, the Depositor and the Master
Servicer shall timely provide to the Trustee all material information
available to them which is required to be included in such reports and not
known to them to be in the possession of the Trustee and such other
information as the Trustee reasonably may request from either of them and
otherwise reasonably shall cooperate with the Trustee. The Trustee shall have
no liability with respect to any failure to properly prepare or file such
periodic reports resulting from or relating to the Trustee's inability or
failure to obtain any information not resulting from its own negligence or
willful misconduct.
Section 8.13. [Reserved]
Section 8.14. Tax Classification of the Excess Reserve Fund
Account
For federal income tax purposes, the Trustee shall treat the
Excess Reserve Fund Account as an outside reserve fund, within the meaning of
Treasury Regulation ss. 1.860-2(h), that is beneficially owned by the holder
of the Class X Certificate. The Trustee shall treat the rights that each Class
of Adjustable Rate Certificates has to receive payments of Basis Risk
CarryForward Amounts from the Excess Reserve Fund Account as rights to receive
payments under an interest rate cap contract written by the Class X
Certificateholder in favor of each such Class. Accordingly, each Class of
Adjustable Rate Certificates will comprise two components - an Upper Tier
Regular Interest and an interest in a cap contract. The Trustee shall allocate
the issue price for a Class of Adjustable Rate Certificates between two
components for purposes of determining the issue price of the Upper Tier
Regular Interest component.
ARTICLE IX
TERMINATION
Section 9.01. Termination upon Liquidation or Purchase of
the Mortgage Loans.
Subject to Section 9.03, the obligations and
responsibilities of the Depositor, the Master Servicer and the Trustee created
hereby with respect to the Trust Fund shall terminate upon the earlier of (a)
the purchase by the Master Servicer of all Mortgage Loans (and REO Properties)
at the price equal to the sum of (i) 100% of the Stated Principal Balance of
each Mortgage Loan (other than in respect of REO Property) plus one month's
accrued interest thereon at the applicable Adjusted Mortgage Rate and (ii) the
lesser of (x) the appraised value of any REO Property as determined by the
higher of two appraisals completed by two independent appraisers selected by
the Master Servicer at the expense of the Master Servicer and (y) the Stated
Principal Balance of each Mortgage Loan related to any REO Property, in each
case plus accrued and unpaid interest thereon at the applicable Adjusted Net
Mortgage Rate and (b) the later of (i) the maturity or other liquidation (or
any Advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Fund and the disposition of all REO Property and (ii) the distribution
to Certificateholders of all amounts required to be distributed to them
pursuant to this Agreement. In no event shall the trusts created hereby
continue beyond the expiration of 21 years from the death of the survivor of
the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States
to the Court of St. James's, living on the date hereof.
The right to repurchase all Mortgage Loans and REO
Properties pursuant to clause (a) above shall be conditioned upon the
aggregate Stated Principal Balance of the Mortgage Loans, at the time of any
such repurchase, aggregating ten percent or less of the aggregate Cut-off Date
Principal Balance of the Mortgage Loans.
Section 9.02. Final Distribution on the Certificates.
If on any Determination Date, the Master Servicer determines
that there are no Outstanding Mortgage Loans and no other funds or assets in
the Trust Fund other than the funds in the Certificate Account, the Master
Servicer shall direct the Trustee promptly to send a final distribution notice
to each Certificateholder. If the Master Servicer elects to terminate the
Trust Fund pursuant to clause (a) of Section 9.01, at least 20 days prior to
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 15th day and not later than the 10th 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 such 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.
In the event such 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 prior to the
applicable Distribution Date in an amount equal to the final distribution in
respect of the Certificates. Upon such final deposit with respect to the Trust
Fund and the receipt by the Trustee of a Request for Release therefor, the
Trustee shall promptly release to the Master Servicer the Mortgage Files for
the Mortgage Loans.
Upon presentation and surrender of the Certificates, the
Trustee shall cause to be distributed to the Certificateholders of each Class,
in each case on the final Distribution Date and in the order set forth in
Section 4.02, in proportion to their respective Percentage Interests, with
respect to Certificateholders of the same Class, an amount equal to (i) as to
each Class of Regular Certificates (except the Class X Certificate), the
Certificate Balance thereof 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, the amount, if any,
which remains on deposit in the Distribution Account (other than the amounts
retained to meet claims) after application pursuant to clause (i) above.
In the event that any affected Certificateholders shall not
surrender Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Trustee shall give a
second written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within six months after the second notice all the applicable
Certificates shall not have been surrendered for cancellation, the Trustee may
take appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds and other
assets which remain a part of the Trust Fund. If within one year after the
second notice all Certificates shall not have been surrendered for
cancellation, the Class R Certificateholders shall be entitled to all
unclaimed funds and other assets of the Trust Fund which remain subject
hereto.
Section 9.03. Additional Termination Requirements.
In the event the Master Servicer exercises its purchase
option with respect to the Mortgage Loans as provided in Section 9.01, the
Trust Fund shall be terminated in accordance with the following additional
requirements, unless the Trustee has been supplied with an Opinion of Counsel,
at the expense of the Master Servicer, to the effect that the failure to
comply with the requirements of this Section 9.03 will not (i) result in the
imposition of taxes on "prohibited transactions" on either REMIC as defined in
Section 860F of the Code, or (ii) cause either the Lower Tier REMIC or the
Upper Tier REMIC to fail to qualify as a REMIC at any time that any
Certificates are outstanding:
(a) The Trustee shall sell all of the assets of the Trust
Fund to the Master Servicer, and, within 90 days of such sale, shall
distribute to the Certificateholders the proceeds of such sale in complete
liquidation of each of the Lower Tier REMIC and the Upper Tier REMIC.
(b) The Trustee shall attach a statement to the final
federal income tax return for each of the Lower Tier REMIC and the Upper Tier
REMIC stating that pursuant to Treasury Regulation ss. 1.860F-1, the first day
of the 90-day liquidation period for each such REMIC was the date on which the
Trustee sold the assets of the Trust Fund to the Master Servicer.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01. Amendment.
This Agreement may be amended from time to time by the
Depositor, the Master Servicer and the Trustee without the consent of any of
the Certificateholders (i) to cure any ambiguity or mistake, (ii) to correct
any defective provision herein or to supplement any provision herein which may
be inconsistent with any other provision herein, (iii) to add to the duties of
the Depositor, the Seller or the Master Servicer, (iv) to add any other
provisions with respect to matters or questions arising hereunder or (v) to
modify, alter, amend, add to or rescind any of the terms or provisions
contained in this Agreement; provided, that any action pursuant to clauses
(iv) or (v) above shall not, 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; and provided further that 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; it being understood and agreed that any such letter in and of
itself will not represent a determination as to the materiality of any such
amendment and will represent a determination only as to the credit issues
affecting any such rating. The Trustee, the Depositor and the Master Servicer
also may at any time and from time to time amend this Agreement without the
consent of the Certificateholders to modify, eliminate or add to any of its
provisions to such extent as shall be necessary or helpful to (i) maintain the
qualification of the Lower Tier REMIC and the Upper Tier REMIC under the Code,
(ii) avoid or minimize the risk of the imposition of any tax on the Lower Tier
REMIC or the Upper Tier REMIC pursuant to the Code that would be a claim at
any time prior to the final redemption of the Certificates or (iii) comply
with any other requirements of the Code, provided that 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 such action is necessary or helpful to,
as applicable, (i) maintain such qualification, (ii) avoid or minimize the
risk of the imposition of such a tax or (iii) comply with any such
requirements of the Code.
This Agreement may also be amended from time to time by the
Depositor, the Master Servicer and the Trustee with the consent of the Holders
of Certificates of Certificates evidencing Percentage Interests aggregating
not less than 66-2/3% of each Class of Certificates affected thereby for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Agreement or of modifying in any manner the
rights of the Holders of Certificates; provided, however, that no such
amendment shall (i) reduce in any manner the amount of, or delay the timing
of, payments required to be distributed on any Certificate without the consent
of the Holder of such Certificate, (ii) adversely affect in any material
respect the interests of the Holders of any Class of Certificates in a manner
other than as described in (i), without the consent of the Holders of
Certificates of such Class evidencing, as to such Class, Percentage Interests
aggregating not less than 66-2/3%, or (iii) reduce the aforesaid percentages of
Certificates the Holders of which are required to consent to any such
amendment, without the consent of the Holders of all such Certificates then
outstanding.
Notwithstanding any contrary provision of this Agreement,
the Trustee shall not consent to any amendment to this Agreement unless it
shall have first received an Opinion of Counsel, which opinion shall not be an
expense of the Trustee or the Trust Fund, to the effect that such amendment
will not cause the imposition of any tax on any REMIC or the
Certificateholders or cause any REMIC to fail to qualify as a REMIC at any
time that any Certificates are outstanding.
Promptly after the execution of any amendment to this
Agreement requiring the consent of Certificateholders, the Trustee shall
furnish written notification of the substance or a copy of such amendment to
each Certificateholder and each Rating Agency.
It shall not be necessary for the consent of
Certificateholders under this Section 10.01 to approve the particular form of
any proposed amendment, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents and of
evidencing the authorization of the execution thereof by Certificateholders
shall be subject to such reasonable regulations as the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee to enter
into an amendment without receiving an Opinion of Counsel (which Opinion shall
not be an expense of the Trustee or the Trust Fund), satisfactory to the
Trustee that (i) such amendment is permitted and is not prohibited by this
Agreement and that all requirements for amending this Agreement have been
complied with; and (ii) either (A) the amendment does not adversely affect in
any material respect the interests of any Certificateholder or (B) the
conclusion set forth in the immediately preceding clause (A) is not required
to be reached pursuant to this Section 10.01.
Section 10.02. Recordation of Agreement; Counterparts.
This Agreement is subject to recordation in all appropriate
public offices for real property records in all the counties or other
comparable jurisdictions in which any or all of the properties subject to the
Mortgages are situated, and in any other appropriate public recording office
or elsewhere, such recordation to be effected by the Master Servicer at its
expense, but only upon receipt of an Opinion of Counsel to the effect that
such recordation materially and beneficially affects the interests of the
Certificateholders.
For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
Section 10.03. Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO AND THE
CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 10.04. Intention of Parties.
It is the express intent of the parties hereto that the
conveyance (i) of the Mortgage Loans by the Seller to the Depositor and (ii)
of the Trust Fund by the Depositor to the Trustee each be, and be construed
as, an absolute sale thereof. It is, further, not the intention of the parties
that such conveyances be deemed a pledge thereof. However, in the event that,
notwithstanding the intent of the parties, such assets are held to be the
property of the Seller or Depositor, as the case may be, or if for any other
reason this Agreement is held or deemed to create a security interest in
either such assets, then (i) this Agreement shall be deemed to be a security
agreement within the meaning of the Uniform Commercial Code of the State of
New York and (ii) the conveyances provided for in this Agreement shall be
deemed to be an assignment and a grant (i) by the Seller to the Depositor or
(ii) by the Depositor to the Trustee, for the benefit of the
Certificateholders, of a security interest in all of the assets transferred,
whether now owned or hereafter acquired.
The Seller and the Depositor for the benefit of the
Certificateholders shall, to the extent consistent with this Agreement, take
such actions as may be necessary to ensure that, if this Agreement were deemed
to create a security interest in the Trust Fund, such security interest would
be deemed to be a perfected security interest of first priority under
applicable law and will be maintained as such throughout the term of the
Agreement. The Depositor shall arrange for filing any Uniform Commercial Code
continuation statements in connection with any security interest granted or
assigned to the Trustee for the benefit of the Certificateholders.
Section 10.05. Notices.
(a) The Trustee shall use its best efforts to promptly
provide notice to each Rating Agency with respect to each of the following of
which it has actual knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Event of Default that has not been
cured;
3. The resignation or termination of the Master Servicer or
the Trustee and the appointment of any successor;
4. The repurchase or substitution of Mortgage Loans pursuant
to Section 2.03; and
5. The final payment to Certificateholders.
In addition, the Trustee shall promptly furnish to each
Rating Agency copies of the following:
1. Each report to Certificateholders described in Section
4.03;
2. Each annual statement as to compliance described in
Section 3.17;
3. Each annual independent public accountants' servicing
report described in Section 3.18; and
4. Any notice of a purchase of a Mortgage Loan pursuant to
Section 2.02, 2.03 or 3.11.
(b) All directions, demands and notices hereunder shall be
in writing and shall be deemed to have been duly given when delivered to (a)
in the case of the Depositor, IndyMac ABS, Inc., 000 Xxxxx Xxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxx 00000, Attention: Secondary Marketing Department, (b) in
the case of the Master Servicer, IndyMac Bank, F.S.B., 000 Xxxxx Xxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxx 00000, Attention: Secondary Marketing Department or such
other address as may be hereafter furnished to the Depositor and the Trustee
by the Master Servicer in writing, (c) in the case of the Trustee, The Bank of
New York, 000 Xxxxxxx Xxxxxx, 00X, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Mortgage-Backed Securities Group, Series SPMD 2000-B, or such other address as
the Trustee may hereafter furnish to the Depositor or Master Servicer; and (d)
in the case of each of the Rating Agencies, the address specified therefor in
the definition corresponding to the name of such Rating Agency. Notices to
Certificateholders shall be deemed given when mailed, first class postage
prepaid, to their respective addresses appearing in the Certificate Register.
Section 10.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions
or terms of this Agreement shall be for any reason whatsoever held invalid,
then such covenants, agreements, provisions or terms shall be deemed severable
from the remaining covenants, agreements, provisions or terms of this
Agreement and shall in no way affect the validity or enforceability of the
other provisions of this Agreement or of the Certificates or the rights of the
Holders thereof.
Section 10.07. Assignment.
Notwithstanding anything to the contrary contained herein,
except as provided in Section 6.02, this Agreement may not be assigned by the
Master Servicer without the prior written consent of the Trustee and
Depositor.
Section 10.08. Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the trust created hereby, nor entitle
such Certificateholder's legal representative or heirs to claim an accounting
or to take any action or commence any proceeding in any court for a petition
or winding up of the trust created hereby, or otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as
provided herein) or in any manner otherwise control the operation and
management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth or contained in the terms of the Certificates
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be
under any liability to any third party by reason of any action taken by the
parties to this Agreement pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by
availing itself of any provisions of this Agreement to institute any suit,
action or proceeding in equity or at law upon or under or with respect to this
Agreement, unless such Holder previously shall have given to the Trustee a
written notice of an Event of Default and of the continuance thereof, as
herein provided, and unless the Holders of Certificates evidencing not less
than 25% of the Voting Rights evidenced by the Certificates shall also have
made written request to the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs,
expenses, and liabilities to be incurred therein or thereby, and the Trustee,
for 60 days after its receipt of such notice, request and offer of indemnity
shall have neglected or refused to institute any such action, suit or
proceeding; it being understood and intended, and being expressly covenanted
by each Certificateholder with every other Certificateholder and the Trustee,
that no one or more Holders of Certificates shall have any right in any manner
whatever by virtue or by availing itself or themselves of any provisions of
this Agreement to affect, disturb or prejudice the rights of the Holders of
any other of the Certificates, or to obtain or seek to obtain priority over or
preference to any other such Holder or to enforce any right under this
Agreement, except in the manner herein provided and for the common benefit of
all Certificateholders. For the protection and enforcement of the provisions
of this Section 10.08, each and every Certificateholder and the Trustee shall
be entitled to such relief as 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 or the Trustee during such
Person's normal business hours, to examine all the books of account, records,
reports and other papers of such Person relating to the Mortgage Loans, to
make copies and extracts therefrom, to cause such books to be audited by
independent certified public accountants selected by the Depositor or the
Trustee and to discuss its affairs, finances and accounts relating to the
Mortgage Loans with its officers, employees and independent public accountants
(and by this provision the Master Servicer hereby authorizes said accountants
to discuss with such representative such affairs, finances and accounts), all
at such reasonable times and as often as may be reasonably requested. Any
out-of-pocket expense incident to the exercise by the Depositor or the Trustee
of any right under this Section 10.09 shall be borne by the Master Servicer.
Section 10.10. Certificates Nonassessable and Fully Paid.
It is the intention of the Depositor that Certificate
holders shall not be personally liable for obligations of the Trust Fund, that
the interests in the Trust Fund represented by the Certificates shall be
nonassessable for any reason whatsoever, and that the Certificates, upon due
authentication thereof by the Trustee pursuant to this Agreement, are and
shall be deemed fully paid.
Section 10.11. Official Record.
IndyMac agrees that this Agreement is and shall remain at
all times prior to the time at which this Agreement terminates an official
record of IndyMac as referred to in Section 13(e) of the Federal Deposit
Insurance Act.
* * * * * *
IN WITNESS WHEREOF, the Depositor, the Trustee, the Seller
and the 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
THE BANK OF NEW YORK,
as Trustee
By:/s/ Xxxxxxxx X. Xxxxxxxxxxx
--------------------------------------
Name: Xxxxxxxx X. Xxxxxxxxxxx
Title: Assistant Vice President
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]
SCHEDULE II
Home Equity Mortgage Loan Asset-Backed Certificates,
Series SPMD 2000-B
Representations and Warranties of the Seller/Master Servicer
Indy Mac Bank, F.S.B. ("IndyMac") hereby makes the
representations and warranties set forth in this Schedule II to the Depositor
and the Trustee, as of the Closing Date, or if so specified herein, as of the
Cut-off Date. Capitalized terms used but not otherwise defined in this
Schedule II shall have the meanings ascribed thereto in the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement") relating to the
above-referenced Series, among IndyMac, as seller and master servicer, IndyMac
ABS, Inc., as depositor, and The Bank of New York, 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 and all 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 terms of the Pooling
and Servicing Agreement and to perform any of its other
obligations under the Pooling and Servicing Agreement in
accordance with the terms thereof.
(2) IndyMac has the full corporate power and authority to
sell and service each Mortgage Loan, and to execute, deliver
and perform, and to enter into and consummate the transactions
contemplated by the Pooling and Servicing Agreement and has
duly authorized by all necessary corporate action on the part
of IndyMac the execution, delivery and performance of the
Pooling and Servicing Agreement; and the Pooling and Servicing
Agreement, assuming the due authorization, execution and
delivery thereof by the other parties thereto, constitutes a
legal, valid and binding obligation of IndyMac, enforceable
against IndyMac in accordance with its terms, except that (a)
the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, receivership and other similar laws
relating to creditors' rights generally and (b) the remedy of
specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to
the discretion of the court before which any proceeding
therefor may be brought.
(3) The execution and delivery of the Pooling and
Servicing Agreement by IndyMac, the sale and servicing of the
Mortgage Loans by IndyMac under the Pooling and Servicing
Agreement, the consummation of any other of the transactions
contemplated by the Pooling and Servicing Agreement, and the
fulfillment of or compliance with the terms thereof are in the
ordinary course of business of IndyMac and will not (A) result
in a material breach of any term or provision of the charter or
by-laws of IndyMac or (B) materially conflict with, result in a
material breach, violation or acceleration of, or result in a
material default under, the terms of 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, without
limitation, 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, without limitation, 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.
SCHEDULE III
Home Equity Mortgage Loan Asset-Backed Certificates,
Series SPMD 2000-B
Representations and Warranties as to the Mortgage Loans
IndyMac Bank, F.S.B. ("IndyMac") hereby makes the
representations and warranties set forth in this Schedule III to the Depositor
and the Trustee, as of the Closing Date or Subsequent Transfer Date, as
applicable, or if so specified herein, as of the related Cut-off Date or date
of origination of the Mortgage Loan (as applicable). Capitalized terms used
but not otherwise defined in this Schedule III shall have the meanings
ascribed thereto in the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement") relating to the above-referenced Series, among IndyMac,
as seller and master servicer, IndyMac ABS, Inc., as depositor, and The Bank
of New York, as trustee.
(1) The information set forth on Schedule I to the Pooling
and Servicing Agreement with respect to each Mortgage Loan is
true and correct in all material respects as of the Closing
Date or Subsequent Transfer Date, as applicable.
(2) As of the Closing Date, all regularly scheduled
monthly payments due with respect to each Mortgage Loan up to
and including the Due Date immediately prior to 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 prior to 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 lien on the Mortgaged Property subject only to (a) the
lien of nondelinquent current real property taxes and
assessments and liens or interests arising under or as a result
of any federal, state or local law, regulation or ordinance
relating to hazardous wastes or hazardous substances and, if
the related Mortgaged Property is a unit in a condominium
project or planned unit development, any lien for common
charges permitted by statute or homeowner association fees, (b)
covenants, conditions and restrictions, rights of way,
easements and other matters of public record as of the date of
recording of such Mortgage, such exceptions appearing of record
being generally acceptable to mortgage lending institutions in
the area wherein the related Mortgaged Property is located or
specifically reflected in the appraisal made in connection with
the origination of the related Mortgage Loan, and (c) other
matters to which like properties are commonly subject which do
not materially interfere with the benefits of the security
intended to be provided by such Mortgage.
(4) Immediately prior to the assignment of the Mortgage
Loans to the Depositor, the Seller had good title to, and was
the sole owner of, each Mortgage Loan free and clear of any
pledge, lien, encumbrance or security interest and had full
right and authority, subject to no interest or participation
of, or agreement with, any other party, to sell and assign the
same pursuant to the Pooling and Servicing Agreement.
(5) As of the date of origination of each Mortgage Loan,
there was no delinquent tax or assessment lien against the
related Mortgaged Property.
(6) There is no valid offset, defense or counterclaim to
any Mortgage Note or Mortgage, including the obligation of the
Mortgagor to pay the unpaid principal of or interest on such
Mortgage Note.
(7) There are no mechanics' liens or claims for work,
labor or material affecting any Mortgaged Property which are or
may be a lien prior to, or equal with, the lien of such
Mortgage, except those which are insured against by the title
insurance policy referred to in item (13) below.
(8) To the best of the Seller's knowledge, no Mortgaged
Property has been materially damaged by water, fire,
earthquake, windstorm, flood, tornado or similar casualty
(excluding casualty from the presence of hazardous wastes or
hazardous substances, as to which the Seller makes no
representation) so as to affect adversely the value of the
related Mortgaged Property as security for such Mortgage Loan.
(9) Each Mortgage Loan at origination complied in all
material respects with applicable state and federal laws,
including, without limitation, usury, equal credit opportunity,
real estate settlement procedures, truth-in-lending and
disclosure laws or any noncompliance does not have a material
adverse effect on the value of the related Mortgage Loan.
(10) As of the Closing Date or Subsequent Transfer Date,
as applicable, the Seller has not modified the Mortgage in any
material respect (except that a Mortgage Loan may have been
modified by a written instrument which has been recorded or
submitted for recordation, if necessary, to protect the
interests of the Certificateholders and which has been
delivered to the Trustee); satisfied, cancelled or subordinated
such Mortgage in whole or in part; released the related
Mortgaged Property in whole or in part from the lien of such
Mortgage; or executed any instrument of release, cancellation,
modification or satisfaction with respect thereto.
(11) A lender's policy of title insurance together with a
condominium endorsement and extended coverage endorsement, if
applicable, in an amount at least equal to the Cut-off Date
Principal Balance of each such 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.
(12) Each Mortgage Loan was originated (within the meaning
of Section 3(a)(41) of the Securities Exchange Act of 1934, as
amended) by an entity that satisfied at the time of origination
the requirements of Section 3(a)(41) of the Securities Exchange
Act of 1934, as amended.
(13) To the best of the Seller's knowledge, all of the
improvements which were included for the purpose of determining
the Appraised Value of the Mortgaged Property lie wholly within
the boundaries and building restriction lines of such property,
and no improvements on adjoining properties encroach upon the
Mortgaged Property, unless such failure to be wholly within
such boundaries and restriction lines or such encroachment, as
the case may be, does not have a material effect on the value
of such 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 but not limited to 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 such
Mortgaged Property.
(15) The Mortgage Note and the related Mortgage are
genuine, and each is the legal, valid and binding obligation of
the maker thereof, enforceable in accordance with its terms and
under applicable law.
(16) The proceeds of the Mortgage Loan have been fully
disbursed and there is no requirement for future advances
thereunder.
(17) The related Mortgage contains customary and
enforceable provisions which render the rights and remedies of
the holder thereof adequate for the realization against the
Mortgaged Property of the benefits of the security, including,
(i) in the case of a Mortgage designated as a deed of trust, by
trustee's sale, and (ii) otherwise by judicial foreclosure.
(18) With respect to each Mortgage constituting a deed of
trust, a trustee, duly qualified under applicable law to serve
as such, has been properly designated and currently so serves
and is named in such Mortgage, and no fees or expenses are or
will become payable by the Certificateholders to the trustee
under the deed of trust, except in connection with a trustee's
sale after default by the Mortgagor.
(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
such Mortgaged Property with a generally acceptable carrier.
(21) To the best of the Seller's knowledge, there is no
proceeding pending or threatened for the total or partial
condemnation of any Mortgaged Property, nor is such a
proceeding currently occurring.
(22) To the best of the Seller's knowledge, there is no
material event which, with the passage of time or with notice
and the expiration of any grace or cure period, would
constitute a material non-monetary default, breach, violation
or event of acceleration under the Mortgage or the related
Mortgage Note; and the Seller has not waived any material
non-monetary default, breach, violation or event of
acceleration.
(23) Each Mortgage File contains an appraisal of the
related Mortgaged Property in a form acceptable to FNMA or
FHLMC.
(24) Any leasehold estate securing a Mortgage Loan has a
stated term at least as long as the term of the related
Mortgage Loan.
(25) Each Mortgage Loan was selected from among the
outstanding one- to four-family sub-prime mortgage loans in the
Seller's sub-prime mortgage portfolio at the Closing Date as to
which the representations and warranties made with respect to
the Mortgage Loans set forth in this Schedule III can be made.
No such selection was made in a manner intended to adversely
affect the interests of the Certificateholders.
(26) No more than 1.34% (by aggregate Stated Principal
Balance) of the Mortgage Loans are Cooperative Loans.
(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, if any, on
the Cooperative Property and of real property taxes, water and
sewer charges, rents and assessments on the Cooperative
Property not yet due and payable, and (iii) other matters to
which like Cooperative Units are commonly subject which do not
materially interfere with the benefits of the security intended
to be provided by the Security Agreement or the use, enjoyment,
value or marketability of the Cooperative Unit. Each original
UCC financing statement, continuation statement or other
governmental filing or recordation necessary to create or
preserve the perfection and priority of the first priority lien
and security interest in the Cooperative Shares and Proprietary
Lease has been timely and properly made. Any security
agreement, chattel mortgage or equivalent document related to
the Cooperative Loan and delivered to the sponsor or its
designee establishes in the Seller a valid and subsisting
perfected first or second lien (in the case of a Cooperative
Loan that is in Loan Group 1) and first lien only (in the case
of a (Cooperative Loan that is in Loan group 2) on and security
interest in the property described therein, and the Seller has
full right to sell and assign the same.
(28) Each Cooperative Corporation qualifies as a
"cooperative housing corporation" as defined in Section 216 of
the Code.
SCHEDULE IV
Planned Balance Schedules
[Not applicable]
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 The Bank of New York, as Trustee, Home
Equity Mortgage Loan Asset-Backed Trust, Series SPMD
2000-B, Home Equity Mortgage Loan Asset-Backed
Certificates, Series SPMD 2000-B [and the Subsequent
Transfer Agreement dated as of [ ], 2000, among
IndyMac ABS, Inc., as Depositor, IndyMac Bank, F.S.B.,
as Seller, and The Bank of New York, as Trustee]
--------------------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), [and the
above-captioned Subsequent Transfer Agreement] the undersigned, as Trustee,
hereby certifies that, as to each [Initial][Subsequent] Mortgage Loan listed
in the Mortgage Loan Schedule (other than any [Initial][Subsequent] Mortgage
Loan listed in the attached schedule), it has received:
(i) the original Mortgage Note, endorsed as provided in the following
form: "Pay to the order of ________, without recourse"; and
(ii) a duly executed assignment of the Mortgage (which may be
included in a blanket assignment or assignments); provided, however, that it
has received no assignment with respect to any Mortgage for which the related
Mortgaged Property is located in the Commonwealth of Puerto Rico.
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to such
[Initial][Subsequent] Mortgage Loan.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Trustee makes no representations as to:
(i) the validity, legality, sufficiency, enforceability or genuineness of any
of the documents contained in each Mortgage File of any of the
[Initial][Subsequent] Mortgage Loans identified on the Mortgage Loan Schedule,
or (ii) the collectability, insurability, effectiveness or suitability of any
such [Initial][Subsequent] Mortgage Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
THE BANK OF NEW YORK,
as Trustee
By:
-------------------------------
Name:
-------------------------------
Title:
-------------------------------
EXHIBIT G-1
FORM OF DELAY DELIVERY CERTIFICATION
[date]
[Depositor]
[Master Servicer]
Re: Pooling and Servicing Agreement among IndyMac ABS, Inc., as
Depositor, IndyMac Bank, F.S.B., as Seller and Master
Servicer, and The Bank of New York, as Trustee, Home Equity
Mortgage Loan Asset-Backed Trust, Series SPMD 2000-B, Home
Equity Mortgage Loan Asset-Backed Certificates, Series SPMD
2000-B [and the Subsequent Transfer Agreement dated as of
[ ], 2000, among IndyMac ABS, Inc., as Depositor,
IndyMac Bank, F.S.B., as Seller, and The Bank of New York,
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 right, title and interest of the party so
endorsing, as noteholder or assignee thereof, in and to that
Mortgage Note) and (B) with respect to any Lost Mortgage
Note, a lost note affidavit from the Seller stating that the
original Mortgage Note was lost or destroyed, together with
a copy of such Mortgage Note;
(ii) a duly executed assignment of the Mortgage (which
may be included in a blanket assignment or assignments),
together with, except as provided below, all interim recorded
assignments of such mortgage (each such assignment, when
duly and validly completed, to be in recordable form and
sufficient to effect the assignment of and transfer to the
assignee thereof, under the Mortgage to which the assignment
relates); provided that such assignment of Mortgage need not
be delivered in the case of a Mortgage for which the related
Mortgage Property is located in the Commonwealth of Puerto
Rico.
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to such
Mortgage Loan.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any
of the [Initial Mortgage Loans][Subsequent Mortgage Loans] identified on the
[Mortgage Loan Schedule][Loan Number and Borrower Identification Mortgage Loan
Schedule] or (ii) the collectibility, insurability, effectiveness or
suitability of any such [Initial Mortgage Loan][Subsequent Mortgage Loan].
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
THE BANK OF NEW YORK,
as Trustee
By:
-----------------------------------------
Name:
Title:
EXHIBIT H
FORM OF FINAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Master Servicer]
[Seller]
-------------------
-------------------
Re: Pooling and Servicing Agreement among IndyMac ABS, Inc., as
Depositor, IndyMac Bank, F.S.B., as Seller and Master Servicer,
and The Bank of New York, as Trustee, Home Equity Mortgage Loan
Asset-Backed Trust, Series SPMD 2000-B, Home Equity Mortgage
Loan Asset-Backed Certificates, Series SPMD 2000-B [and the
Subsequent Transfer Agreement dated as of [ ], 2000, among
IndyMac ABS, Inc., as Depositor, IndyMac Bank, F.S.B., as
Seller, and The Bank of New York, 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 copy of
the assignment of the Mortgage (excluding information to be provided by the
recording office).
(iv) The original or duplicate original recorded assignment or
assignments of the Mortgage showing a complete chain of assignment from the
originator to the Seller.
(v) The original or duplicate original lender's title policy and all
riders thereto or, any one of an original title binder, an original
preliminary title report or an original title commitment, or a copy thereof
certified by the title company.
Based on its review and examination and only as to the foregoing
documents, (a) such documents appear regular on their face and related to such
[Initial][Subsequent] Mortgage Loan, and (b) the information set forth in
items (i), (ii), (iii), (iv), (vi) and (xi) of the definition of the "Mortgage
Loan Schedule" in Section 1.01 of the Pooling and Servicing Agreement
accurately reflects information set forth in the Mortgage File.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Trustee makes no representations as to:
(i) the validity, legality, sufficiency, enforceability or genuineness of any
of the documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness or suitability of any such [Initial][Subsequent]
Mortgage Loan. Notwithstanding anything herein to the contrary, the Trustee
has made no determination and makes no representations as to whether (i) any
endorsement is sufficient to transfer all right, title and interest of the
party so endorsing, as Noteholder or assignee thereof, in and to that Mortgage
Note or (ii) any assignment is in recordable form or sufficient to effect the
assignment of and transfer to the assignee thereof, under the Mortgage to
which the assignment relates.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
THE BANK OF NEW YORK,
as Trustee
By:
------------------------------
Name:
-------------------------------
Title:
-------------------------------
EXHIBIT I
TRANSFER AFFIDAVIT
IndyMac ABS, Inc.,
Home Equity Mortgage Loan Asset-Backed Trust, Series SPMD 2000-B
Home Equity Mortgage Loan Asset-Backed Certificates,
Series SPMD 2000-B
STATE OF )
) ss.:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of ___________, the proposed
Transferee of an Ownership Interest in a Class R Certificate (the
"Certificate") issued pursuant to the Pooling and Servicing Agreement, (the
"Agreement"), relating to the above-referenced Series, by and among IndyMac
ABS, Inc., as depositor (the "Depositor"), IndyMac Bank, F.S.B., as seller and
master servicer and The Bank of New York, as Trustee. Capitalized terms used,
but not defined herein or in Exhibit 1 hereto, shall have the meanings
ascribed to such terms in the Agreement. The Transferee has authorized the
undersigned to make this affidavit on behalf of the Transferee.
2. The Transferee is, as of the date hereof, and will be, as of the
date of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate for its own account. 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 subsequent Transferee furnished to such Person an affidavit
that such subsequent Transferee is a Permitted Transferee and, at the time of
Transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax
will be imposed on a "pass-through entity" holding the Certificate if at any
time during the taxable year of the pass-through entity a Person that is not a
Permitted Transferee is the record holder of an interest in such entity. The
Transferee understands that such tax will not be imposed for any period with
respect to which the record holder furnishes to the pass-through entity an
affidavit that such record holder is a Permitted Transferee and the
pass-through entity does not have actual knowledge that such affidavit is
false. (For this purpose, a "pass-through entity" includes a regulated
investment company, a real estate investment trust or common trust fund, a
partnership, trust or estate, and certain cooperatives and, except as may be
provided in Treasury Regulations, persons holding interests in pass-through
entities as a nominee for another Person.)
5. The Transferee has reviewed the provisions of Section 5.02(c) of
the Agreement (attached hereto as Exhibit 2 and incorporated herein by
reference) and understands the legal consequences of the acquisition of an
Ownership Interest in the Certificate including, without limitation, the
restrictions on subsequent Transfers and the provisions regarding voiding the
Transfer and mandatory sales. The Transferee expressly agrees to be bound by
and to abide by the provisions of Section 5.02(c) of the Agreement and the
restrictions noted on the face of the Certificate. The Transferee understands
and agrees that any breach of any of the representations included herein shall
render the Transfer to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any
Person to whom the Transferee attempts to Transfer its Ownership Interest in
the Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth as Exhibit J to the Agreement (a "Transferor Certificate") to
the effect that such Transferee has no actual knowledge that the Person to
which the Transfer is to be made is not a Permitted Transferee.
7. The Transferee does not have the intention to impede the
assessment or collection of any tax legally required to be paid with respect
to the Certificate.
8. The Transferee's taxpayer identification number is _____________.
9. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
10. The Transferee is aware that the Certificate may be a
"noneconomic residual interest" within the meaning of proposed Treasury
regulations promulgated pursuant to the Code and that the transferor of a
noneconomic residual interest will remain liable for any taxes due with
respect to the income on such residual interest, unless no significant purpose
of the transfer was to impede the assessment or collection of tax.
11. 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:
[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__
EXHIBIT 1
to EXHIBIT I
Certain Definitions
"Ownership Interest": As to any Certificate, any ownership interest
in such Certificate, including any interest in such Certificate as the Holder
thereof and any other interest therein, whether direct or indirect, legal or
beneficial.
"Permitted Transferee": Any Person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality
of any of the foregoing, (ii) a foreign government, International Organization
or any agency or instrumentality of either of the foregoing, (iii) an
organization (except certain farmers' cooperatives described in Code Section
521) which is exempt from tax imposed by Chapter 1 of the Code (including the
tax imposed by Code Section 511 on unrelated business taxable income) on any
excess inclusions (as defined in Code Section 860E(c)(1)) with respect to any
Class R Certificate, (iv) rural electric and telephone cooperatives described
in Code Section 1381(a)(2)(c), (v) a Person that is not a U.S. Person, and
(vi) any other Person so designated by the Trustee based upon an Opinion of
Counsel that the Transfer of an Ownership Interest in a Class R Certificate to
such Person may cause the Trust Fund to fail to qualify as a REMIC at any time
that certain Certificates are Outstanding. The terms "United States," "State"
and "International Organization" shall have the meanings set forth in Code
Section 7701 or successor provisions. A corporation will not be treated as an
instrumentality of the United States or of any State or political subdivision
thereof if all of its activities are subject to tax, and, with the exception
of the FHLMC, a majority of its board of directors is not selected by such
governmental unit.
"Person": Any individual, corporation, partnership, joint venture,
bank, joint stock company, trust (including any beneficiary thereof),
unincorporated organization or government or any agency or political
subdivision thereof.
"Transfer": Any direct or indirect transfer or sale of any Ownership
Interest in a Certificate, including the acquisition of a Certificate by the
Depositor.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"United States Person or U.S. Person": Shall mean (i) a citizen or
resident of the United States; (ii) a corporation (or entity treated as a
corporation for tax purposes) created or organized in the United States or
under the laws of the United States or of any state thereof, including, for
this purpose, the District of Columbia; (iii) a partnership (or entity treated
as a partnership for tax purposes) organized in the United States or under the
laws of the United States or of any state thereof, including, for this
purpose, the District of Columbia (unless provided otherwise by future
Treasury regulations); (iv) an estate whose income is includible in gross
income for United States income tax purposes regardless of its source; or (v)
a trust, if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more U.S. Persons
have authority to control all substantial decisions of the trust.
Notwithstanding the last clause of the preceding sentence, to the extent
provided in Treasury regulations, certain trusts in existence on August 20,
1996, and treated as U.S. Persons prior to such date, may elect to continue to
be U.S. Persons.
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 attached hereto as
Exhibit I.
(iii) Each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall agree (A) to obtain a
Transfer Affidavit from any other Person to whom such Person
attempts to Transfer its Ownership Interest in a Residual
Certificate, (B) to obtain a Transfer Affidavit from any Person
for whom such Person is acting as nominee, trustee or agent in
connection with any Transfer of a Residual Certificate and (C)
not to Transfer its Ownership Interest in a Residual
Certificate or to cause the Transfer of an Ownership Interest
in a Residual Certificate to any other Person if it has actual
knowledge that such Person is not a Permitted Transferee.
(iv) Any attempted or purported Transfer of any Ownership
Interest in a Residual Certificate in violation of the
provisions of this Section 5.02(c) shall be absolutely null and
void and shall vest no rights in the purported Transferee. If
any purported transferee shall become a Holder of a Residual
Certificate in violation of the provisions of this Section
5.02(c), then the last preceding Permitted Transferee shall be
restored to all rights as Holder thereof retroactive to the
date of registration of Transfer of such Residual Certificate.
The Trustee shall be under no liability to any Person for any
registration of Transfer of a Residual Certificate that is in
fact not permitted by Section 5.02(b) and this Section 5.02(c)
or for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such
Holder under the provisions of this Agreement so long as the
Transfer was registered after receipt of the 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.
EXHIBIT J
FORM OF TRANSFEROR CERTIFICATE
__________, 20__
IndyMac ABS, Inc.
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
The Bank of New York
000 Xxxxxxx Xxxxxx, 00X
Xxx Xxxx, XX 00000
Attention: Mortgage-Backed
Securities Group Series 200[ ]-
Re: IndyMac ABS, Inc. Home Equity Loan Asset-Backed
Trust, Series SPMD 2000-B, Home Equity Mortgage
Loan Asset-Backed Certificates, Series SPMD 2000-B,
Class ___
Ladies and Gentlemen:
In connection with our disposition of the above Certificates
we certify that (a) we understand that the Certificates have not been
registered under the Securities Act of 1933, as amended (the "Act"), and are
being disposed by us in a transaction that is exempt from the registration
requirements of the Act, (b) we have not offered or sold any Certificates to,
or solicited offers to buy any Certificates from, any person, or otherwise
approached or negotiated with any person with respect thereto, in a manner
that would be deemed, or taken any other action which would result in, a
violation of Section 5 of the Act and (c) to the extent we are disposing of a
Residual Certificate, we have no knowledge the Transferee is not a Permitted
Transferee.
Very truly yours,
______________________________
Print Name of Transferor
By:
---------------------------------
Authorized Officer
EXHIBIT L
FORM OF RULE 144A LETTER
____________, 20__
IndyMac ABS, Inc.
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
The Bank of New York
000 Xxxxxxx Xxxxxx, 00X
Xxx Xxxx, XX 00000
Attention: Mortgage-Backed
Securities Group Series 200[ ]-
Re: Home Equity Mortgage Loan Asset-Backed Trust, Series SPMD 2000-B
Home Equity Mortgage Loan Asset-Backed Certificates, Series SPMD
2000-B, 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 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.
ANNEX 1 TO EXHIBIT L
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to
the parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President,
Chief Financial Officer, Senior Vice President or other executive officer of
the Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because (i) the Buyer owned
and/or invested on a discretionary basis $________(1) in securities (except for
the excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance with Rule 144A
and (ii) the Buyer satisfies the criteria in the category marked below.
__ Corporation, etc. The Buyer is a corporation (other
than a bank, savings and loan association or
similar institution), Massachusetts or similar
business trust, partnership, or charitable
organization described in Section 501(c)(3) of the
Internal Revenue Code of 1986, as amended.
__ Bank. The Buyer (a) is a national bank or banking
institution organized under the laws of any State,
territory or the District of Columbia, the business
of which is substantially confined to banking and
is supervised by the State or territorial banking
commission or similar official or is a foreign bank
or equivalent institution, and (b) has an audited
net worth of at least $25,000,000 as demonstrated
in its latest annual financial statements, a copy
of which is attached hereto.
__ Savings and Loan. The Buyer (a) is a savings and
loan association, building and loan association,
cooperative bank, homestead association or similar
institution, which is supervised and examined by a
State or Federal authority having supervision over
any such institutions or is a foreign savings and
loan association or equivalent institution and (b)
has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
------------------------------
1 Buyer must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Buyer is a dealer, and, in that
case, Buyer must own and/or invest on a discretionary basis at least
$10,000,000 in securities.
__ Broker-dealer. The Buyer is a dealer registered
pursuant to Section 15 of the Securities Exchange
Act of 1934.
__ Insurance Company. The Buyer is an insurance
company whose primary and predominant business
activity is the writing of insurance or the
reinsuring of risks underwritten by insurance
companies and which is subject to supervision by
the insurance commissioner or a similar official or
agency of a State, territory or the District of
Columbia.
__ State or Local Plan. The Buyer is a plan
established and maintained by a State, its
political subdivisions, or any agency or
instrumentality of the State or its political
subdivisions, for the benefit of its employees.
__ ERISA Plan. The Buyer is an employee benefit plan
within the meaning of Title I of the Employee
Retirement Income Security Act of 1974.
__ Investment Advisor. The Buyer is an investment
advisor registered under the Investment Advisors Act
of 1940.
__ Small Business Investment Company. Buyer is a small
business investment company licensed by the U.S.
Small Business Administration under Section 301(c)
or (d) of the Small Business Investment Act of
1958.
__ Business Development Company. Buyer is a business
development company as defined in Section 202(a)(22)
of the Investment Advisors Act of 1940.
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer
is a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned
but subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Buyer, the
Buyer used the cost of such securities to the Buyer and did not include any of
the securities referred to in the preceding paragraph, except (i) where the
Buyer reports its securities holdings in its financial statements on the basis
of their market value, and (ii) no current information with respect to the
cost of those securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market. Further, in
determining such aggregate amount, the Buyer may have included securities
owned by subsidiaries of the Buyer, but only if such subsidiaries are
consolidated with the Buyer in its financial statements prepared in accordance
with generally accepted accounting principles and if the investments of such
subsidiaries are managed under the Buyer's direction. However, such securities
were not included if the Buyer is a majority-owned, consolidated subsidiary of
another enterprise and the Buyer is not itself a reporting company under the
Securities Exchange Act of 1934, as amended.
5. The Buyer acknowledges that it is familiar with Rule 144A
and understands that the seller to it and other parties related to the
Certificates are relying and will continue to rely on the statements made
herein because one or more sales to the Buyer may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities,
the Buyer will notify each of the parties to which this certification is made
of any changes in the information and conclusions herein. Until such notice is
given, the Buyer's purchase of the Certificates will constitute a
reaffirmation of this certification as of the date of such purchase. In
addition, if the Buyer is a bank or savings and loan is provided above, the
Buyer agrees that it will furnish to such parties updated annual financial
statements promptly after they become available.
______________________________
Print Name of Transferor
By:
___________________________
Name:
Title:
Date:
-----------------------------
ANNEX 2 TO EXHIBIT L
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to
the parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President,
Chief Financial Officer or Senior Vice President of the Buyer or, if the Buyer
is a "qualified institutional buyer" as that term is defined in Rule 144A
under the Securities Act of 1933, as amended ("Rule 144A") because Buyer is
part of a Family of Investment Companies (as defined below), is such an
officer of the Adviser.
2. In connection with purchases by Buyer, the Buyer is a
"qualified institutional buyer" as defined in SEC Rule 144A because (i) the
Buyer is an investment company registered under the Investment Company Act of
1940, as amended and (ii) as marked below, the Buyer alone, or the Buyer's
Family of Investment Companies, owned at least $100,000,000 in securities
(other than the excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year. For purposes of determining the amount of
securities owned by the Buyer or the Buyer's Family of Investment Companies,
the cost of such securities was used, except (i) where the Buyer or the
Buyer's Family of Investment Companies reports its securities holdings in its
financial statements on the basis of their market value, and (ii) no current
information with respect to the cost of those securities has been published.
If clause (ii) in the preceding sentence applies, the securities may be valued
at market.
__ The Buyer owned $________ in securities (other than
the excluded securities referred to below) as of
the end of the Buyer's most recent fiscal year (such
amount being calculated in accordance with Rule
144A).
__ The Buyer is part of a Family of Investment
Companies which owned in the aggregate $_____ in
securities (other than the excluded securities
referred to below) as of the end of the Buyer's
most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein
means two or more registered investment companies (or series thereof) that
have the same investment adviser or investment advisers that are affiliated
(by virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) securities issued or guaranteed
by the U.S. or any instrumentality thereof, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase agreements,
(vi) securities owned but subject to a repurchase agreement and (vii)
currency, interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that
the parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, the Buyer will only purchase for the Buyer's own account.
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:
------------------------------------
EXHIBIT M
REQUEST FOR RELEASE
(for Trustee)
IndyMac ABS, Inc.,
Home Equity Mortgage Loan Asset-Backed Trust, Series SPMD 2000-B
Home Equity Mortgage Loan Asset-Backed Certificates,
Series SPMD 2000-B
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 The Bank of New York, 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 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.
(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:
--------------------------
EXHIBIT N
REQUEST FOR RELEASE OF DOCUMENTS
To: The Bank of New York Attn: Mortgage Custody Services
Re: The Pooling & Servicing Agreement dated _______ among IndyMac Bank,
F.S.B., as Master Servicer, Inc, IndyMac ABS, Inc. and The Bank of New
York 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 Loan(s) described below, for the reason indicated.
FT Account#: Pool #:
Mortgagor's Name, Address and Zip Code:
--------------------------------------
Mortgage Loan Number:
--------------------
Reason for Requesting Documents (check one)
-------------------------------
_______1. Mortgage Loan paid in full (IndyMac hereby certifies that all
amounts have been received.)
_______2. Mortgage Loan Liquidated (IndyMac hereby certifies that all
proceeds of foreclosure, insurance, or other liquidation
have been finally received.)
_______3. Mortgage Loan in Foreclosure.
_______4. Other (explain): ____________________________________
If item 1 or 2 above is checked, and if all or part of the Mortgage File was
previously released to us, please release to us our previous receipt on file
with you, as well as an additional documents in your possession relating to
the above-specified Mortgage Loan. If item 3 or 4 is checked, upon return of
all of the above documents to you as Trustee, please acknowledge your receipt
by signing in the space indicated below, and returning this form.
INDYMAC BANK, F.S.B. 000 Xxxxx Xxxx Xxx.
Xxxxxxxx XX 00000
By:_________________________________________
Name:_______________________________________
Title:______________________________________
Date:_______________________________________
TRUSTEE CONSENT TO RELEASE AND
ACKNOWLEDGEMENT OF RECEIPT
By:_________________________________________
Name:_______________________________________
Title:______________________________________
Date:_______________________________________
EXHIBIT O
[RESERVED]
EXHIBIT Q
FORM OF SUBSEQUENT TRANSFER AGREEMENT
Subsequent Transfer Agreement, dated as of August [ ], 2000,
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 The Bank of New York, 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
that certain pooling and servicing agreement dated as of July 1, 2000 (the
"Pooling and Servicing Agreement") relating to the Home Equity Mortgage Loan
Asset-Backed Certificates, Series SPMD 2000-B; and
WHEREAS, as contemplated in the Pooling and Servicing
Agreement, the Seller desires to convey certain Subsequent Mortgage Loans (as
hereinafter defined) to the Depositor, and the Depositor desires to
simultaneously convey such 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 shall
have the meanings ascribed thereto 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 hereof.
"Subsequent Transfer Date" means, with respect to this Agreement,
August [ ], 2000.
"Cut-off Date" means, with respect to each of the Subsequent Mortgage
Loans, August 1, 2000.
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.
Section 1.03. Conveyance of Subsequent Mortgage Loans by the Seller.
Subject to the conditions set forth in Section 1.05 and Section 1.06,
in consideration of the Trustee's delivery to or upon the order of the Seller
of an amount equal to $________ (i.e., 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 right,
title and interest in and to 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
prior to 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 on or before 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 right, title and interest of the
Depositor in and to 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 prior to 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 on or before such related Cut-off
Date.
Section 1.04. Allocation of the Amounts to be Released from the Pre-Funding
Accounts.
Of the $________ (i.e., the aggregate Cut-off Date Principal Balance
of the Subsequent Mortgage Loans), released by the Trustee pursuant to the
terms of Section 1.03 hereof, the Trustee shall release an amount equal to
$__________ (i.e., the aggregate Cut-off Date Principal Balance of the
Subsequent Mortgage Loans transferred to Loan Group 1 pursuant to this
Agreement) from the Group 1 Pre-Funding Account.
Of the $________ (i.e., the aggregate Cut-off Date Principal Balance
of the Subsequent Mortgage Loans), released by the Trustee pursuant to the
terms of Section 1.03 hereof, the Trustee shall release an amount equal to
$__________ (i.e., the aggregate Cut-off Date Principal Balance of the
Subsequent Mortgage Loans transferred to Loan Group 2 pursuant to this
Agreement) from the Group 2 Pre-Funding Account.
Section 1.05. Representations and Warranties of Seller.
The Seller does hereby reaffirm the representations and warranties
set forth in Section 2.03 and on Schedule II of the Pooling and Servicing
Agreement for the benefit of the Depositor and the Trustee as purchasers
hereunder are true with respect to the Subsequent Mortgage Loans. Such
representations and warranties shall survive the sale, transfer and assignment
of the Subsequent Mortgage Loans to the Depositor and the simultaneous sale,
transfer and assignment of such Subsequent Mortgage Loans to the Trustee.
Section 1.06. Representations and Warranties of Depositor.
The Depositor does hereby reaffirm the representations and warranties
set forth in Section 2.04 of the Pooling and Servicing Agreement for the
benefit of the Trustee as purchaser hereunder are true with respect to the
Subsequent Mortgage Loans. Such representations and warranties shall survive
the sale, transfer and assignment of the Subsequent Mortgage Loans to the
Trustee.
Section 1.07. Conditions Precedent.
The obligation of the Trustee to acquire the Subsequent Mortgage
Loans hereunder is subject to the satisfaction, on or prior to the Subsequent
Transfer Date, of the conditions precedent identified in Section 2.09(b).
The Trustee shall not be required to investigate or otherwise verify
satisfaction of the conditions listed above, but shall be entitled to
conclusively rely upon Opinions of Counsel and Officer's Certificates
confirming such fulfillment.
Section 1.08. Reaffirmation of Agreement.
All terms, conditions and provisions of the Pooling and Servicing
Agreement are hereby reaffirmed and incorporated by reference by the Seller as
to the Subsequent Mortgage Loans.
Section 1.09. Governing Law.
This Agreement shall be construed in accordance with the laws of the
State of New York and the obligations, rights and remedies of the parties
under this Agreement shall be determined in accordance with such laws;
provided, however, the immunities, authority and standard of care of the
Trustee shall be governed by the jurisdiction in which its Corporate Trust
Office is located.
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:
THE BANK OF NEW YORK,
not in its individual capacity,
but solely as Trustee
By:
-------------------------------
Name:
Title:
[SUPPLEMENT TO MORTGAGE LOAN SCHEDULE]
