EXHIBIT 99.1
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5
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INDYMAC MBS, INC.
Depositor
INDYMAC BANK, F.S.B.
Transferor and Master Servicer
DEUTSCHE BANK NATIONAL TRUST COMPANY
Trustee
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POOLING AND SERVICING AGREEMENT
Dated as of November 1, 2004
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INDYMAC INDX MORTGAGE LOAN TRUST
2004-AR11
MORTGAGE PASS-THROUGH CERTIFICATES
Series 2004-AR11
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TABLE OF CONTENTS
Page
ARTICLE ONE DEFINITIONS...........................................................................................8
Section 1.01 Definitions............................................................................8
Section 1.02 Rules of Construction.................................................................37
ARTICLE TWO CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES.........................................39
Section 2.01 Conveyance of Mortgage Loans..........................................................39
Section 2.02 Acceptance by the Trustee of the Mortgage Loans.......................................42
Section 2.03 Representations, Warranties, and Covenants of the Transferor and the Master Servicer..44
Section 2.04 Representations and Warranties of the Depositor as to the Mortgage Loans..............46
Section 2.05 Delivery of Opinion of Counsel in Connection with Substitutions and Repurchases.......46
Section 2.06 Execution and Delivery of Certificates................................................46
Section 2.07 REMIC Matters.........................................................................46
ARTICLE THREE ADMINISTRATION AND SERVICING OF MORTGAGE LOANS.....................................................47
Section 3.01 Master Servicer to Service Mortgage Loans.............................................47
Section 3.02 Subservicing; Enforcement of the Obligations of Subservicers..........................47
Section 3.03 Rights of the Depositor and the Trustee in Respect of the Master Servicer.............48
Section 3.04 No Contractual Relationship Between Subservicers and the Trustee......................48
Section 3.05 Trustee to Act as Master Servicer.....................................................48
Section 3.06 Collection of Mortgage Loan Payments; Servicing Accounts; Collection Account;
Certificate Account; Distribution Account.............................................49
Section 3.07 Collection of Taxes, Assessments and Similar Items; Escrow Accounts...................52
Section 3.08 Access to Certain Documentation and Information Regarding the Mortgage Loans..........53
Section 3.09 Permitted Withdrawals from the Certificate Account and the Distribution Account.......53
Section 3.10 Maintenance of Hazard Insurance; Maintenance of Primary Insurance Policies............54
Section 3.11 Enforcement of Due-On-Sale Clauses; Assumption Agreements.............................56
Section 3.12 Realization Upon Defaulted Mortgage Loans.............................................57
Section 3.13 Trustee to Cooperate; Release of Mortgage Files.......................................58
Section 3.14 Documents, Records and Funds in Possession of the Master Servicer to be Held for
the Trustee...........................................................................59
Section 3.15 Servicing Compensation................................................................59
Section 3.16 Access to Certain Documentation.......................................................60
Section 3.17 Annual Statement as to Compliance.....................................................60
Section 3.18 Annual Independent Public Accountants' Servicing Statement; Financial Statements......60
Section 3.19 Errors and Omissions Insurance; Fidelity Bonds........................................61
i
Section 3.20 Notification of Adjustments...........................................................61
Section 3.21 Prepayment Charges....................................................................61
ARTICLE FOUR DISTRIBUTIONS AND ADVANCES BY THE MASTER SERVICER...................................................62
Section 4.01 Advances..............................................................................62
Section 4.02 Priorities of Distribution............................................................63
Section 4.03 Cross-Collateralization; Adjustments to Available Funds...............................66
Section 4.04 [Reserved]............................................................................67
Section 4.05 Allocation of Realized Losses.........................................................67
Section 4.06 Monthly Statements to Certificateholders..............................................68
Section 4.07 [Reserved]............................................................................70
Section 4.08 Determination of Pass-Through Rates for LIBOR Certificates............................70
ARTICLE FIVE THE CERTIFICATES....................................................................................72
Section 5.01 The Certificates......................................................................72
Section 5.02 Certificate Register; Registration of Transfer and Exchange of Certificates...........72
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates.....................................76
Section 5.04 Persons Deemed Owners.................................................................76
Section 5.05 Access to List of Certificateholders' Names and Addresses.............................76
Section 5.06 Maintenance of Office or Agency.......................................................77
ARTICLE SIX THE DEPOSITOR AND THE MASTER SERVICER................................................................78
Section 6.01 Respective Liabilities of the Depositor and the Master Servicer.......................78
Section 6.02 Merger or Consolidation of the Depositor or the Master Servicer.......................78
Section 6.03 Limitation on Liability of the Depositor, the Transferor, the Master Servicer,
and Others............................................................................78
Section 6.04 Limitation on Resignation of the Master Servicer......................................79
ARTICLE SEVEN DEFAULT............................................................................................80
Section 7.01 Events of Default.....................................................................80
Section 7.02 Trustee to Act; Appointment of Successor..............................................81
Section 7.03 Notification to Certificateholders....................................................82
ARTICLE EIGHT CONCERNING THE TRUSTEE.............................................................................83
Section 8.01 Duties of the Trustee.................................................................83
Section 8.02 Certain Matters Affecting the Trustee.................................................83
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans.................................85
Section 8.04 Trustee May Own Certificates..........................................................85
Section 8.05 Trustee's Fees and Expenses...........................................................85
Section 8.06 Eligibility Requirements for the Trustee..............................................86
Section 8.07 Resignation and Removal of the Trustee................................................86
Section 8.08 Successor Trustee.....................................................................87
Section 8.09 Merger or Consolidation of the Trustee................................................87
Section 8.10 Appointment of Co-Trustee or Separate Trustee.........................................87
Section 8.11 Tax Matters...........................................................................89
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Section 8.12 Periodic Filings......................................................................90
ARTICLE NINE TERMINATION.........................................................................................92
Section 9.01 Termination upon Liquidation or Purchase of the Mortgage Loans........................92
Section 9.02 Final Distribution on the Certificates................................................92
Section 9.03 Additional Termination Requirements...................................................94
ARTICLE TEN MISCELLANEOUS PROVISIONS.............................................................................95
Section 10.01 Amendment.............................................................................95
Section 10.02 Recordation of Agreement; Counterparts................................................96
Section 10.03 Governing Law.........................................................................97
Section 10.04 Intention of Parties..................................................................97
Section 10.05 Notices...............................................................................97
Section 10.06 Severability of Provisions............................................................98
Section 10.07 Assignment............................................................................98
Section 10.08 Limitation on Rights of Certificateholders............................................98
Section 10.09 Inspection and Audit Rights...........................................................99
Section 10.10 Certificates Nonassessable and Fully Paid.............................................99
Section 10.11 Official Record.......................................................................99
Section 10.12 Protection of Assets..................................................................99
Section 10.13 Qualifying Special Purpose Entity....................................................100
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SCHEDULES
Schedule I: Mortgage Loan Schedule...................................................................S-I-1
Schedule II: Representations and Warranties of the Transferor/Master Servicer........................S-II-1
Schedule III: Representations and Warranties as to the Mortgage Loans................................S-III-1
EXHIBITS
Exhibit A: Form of Senior Certificate (excluding Notional Amount Certificates)........................A-1
Exhibit B: Form of Subordinated Certificate...........................................................B-1
Exhibit C: Form of Class A-R Certificate..............................................................C-1
Exhibit D: Form of Notional Amount Certificate........................................................D-1
Exhibit E Form of Reverse of Certificates............................................................E-1
Exhibit F: Form of Class P Certificates...............................................................F-1
Exhibit G: Form of Initial Certification of Trustee ..................................................G-1
Exhibit G-1: Form of Delay Delivery Certification.....................................................G-1-1
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: Form of Investment Letter (Non-Rule 144A)..................................................K-1
Exhibit L: Form of Rule 144A Letter...................................................................L-1
Exhibit M: Form of Request for Release (for Trustee)..................................................M-1
Exhibit N: Request for Release of Documents...........................................................N-1
Exhibit O: Form of Trustee Certification..............................................................O-1
iv
THIS POOLING AND SERVICING AGREEMENT, dated as of November 1, 2004, among
INDYMAC MBS, INC., a Delaware corporation, as depositor (the "Depositor"),
IndyMac Bank, F.S.B. ("IndyMac"), a federal savings bank as transferor (in that
capacity, the "Transferor") and as master servicer (in that capacity, the
"Master Servicer"), and Deutsche Bank National Trust Company, a national banking
association, as trustee (the "Trustee"),
W I T N E S S E T H T H A T
In consideration of the mutual agreements set forth in this Agreement, the
parties agree as follows:
PRELIMINARY STATEMENT
The Depositor is the owner of the Trust Fund that is hereby conveyed to the
Trustee in return for the Certificates. As provided in this Agreement, the
Trustee shall elect that the Trust Fund be treated for federal income tax
purposes as comprising three real estate mortgage investment conduits (each, a
"REMIC" or, in the alternative, "REMIC 1," "REMIC 2" and the "Master REMIC").
Each Certificate, other than the Class A-R Certificate, will represent ownership
of one or more regular interests in the Master REMIC for purposes of the REMIC
Provisions. The Class A-R represents ownership of the sole class of residual
interest in each REMIC created under this Agreement. The Master REMIC will hold
as assets the several classes of uncertificated REMIC 2 Interests (other than
the Class R-2 Interest). REMIC 2 will hold as assets the several classes of
uncertificated REMIC 1 Interests (other than the Class R-1 Interest). REMIC 1
will hold as assets all property of the Trust Fund. Each REMIC 2 Interest (other
than the Class R-2 Interest) is hereby designated as a regular interest in REMIC
2. Each REMIC 1 Interest (other than the Class R-1 Interest) is hereby
designated as a regular interest in REMIC 1. The latest possible maturity date
of all REMIC regular interests created in this Agreement shall be the Latest
Possible Maturity Date.
REMIC 1
The REMIC 1 Interests will have the initial principal balance, Pass-Through
Rates and corresponding Loan Groups as set forth in the following table:
Initial Principal Pass-Through Corresponding
REMIC 1 Interests Balance Rate Loan Group
----------------- ------- ---- ----------
A-1 (0.9% of the Assumed Balance of
Loan Group 1) (1) (2) 1
B-1 (0.1% of the Assumed Balance of
Loan Group 1) (1) (2) 1
C-1 (Excess of Loan Group 1) (1) (2) 1
A-2 (0.9% of the Assumed Balance of
Loan Group 2) (1) (2) 2
B-2 (0.1% of the Assumed Balance of
Loan Group 2) (1) (2) 2
C-2 (Excess of Loan Group 2) (1) (2) 2
I-P $100 (3) N/A
I-$100 $100 (3) N/A
R-1 (4) (4) N/A
---------------
1
(1) Each Class A Interest will have a principal balance initially equal to 0.9%
of the Assumed Balance of its corresponding Loan Group. Each Class B Interest
will have a principal balance initially equal to 0.1% of the the Assumed Balance
of its corresponding Loan Group. The initial principal balance of each Class C
Interest will equal the excess of the initial aggregate principal balance of its
corresponding Loan Group over the initial aggregate principal balances of the
Class A and Class B Interests corresponding to such Loan Group.
The Weighted Average Adjusted Net Mortgage Rate of the corresponding Loan Group.
The Class I-P and Class I-$100 Interests will not bear interest. The Class I-P
will be entitled to all Prepayment Charges collected in respect of the Mortgage
Loans.
(2) The Class R-1 Interest is the sole class of residual interest in REMIC 1. It
has no principal balance and pays no principal or interest.
On each Distribution Date, the Available Funds shall be distributed with
respect to the REMIC 1 Interests in the following manner:
(1) Interest is to be distributed with respect to each REMIC 1 Interest
according to the formulas described above;
(2) If a Cross-Over Situation does not exist with respect to any Class of
Interests, then Principal Amounts and Realized Losses arising with respect
to each Loan Group will be allocated: first to cause the Loan Group's
corresponding Class A and Class B to equal, respectively, 0.9% of the
Assumed Balance and 0.1% of the Assumed Balance; and second to the Loan
Group's corresponding Class C Interest;
(3) If a Cross-Over Situation exists with respect to the Class A and Class B
Interests then:
(a) if the Calculation Rate in respect of the outstanding Class A and Class
B Interests is less than the Subordinate Pass Through Rate, Principal
Relocation Payments will be made proportionately to the outstanding Class A
Interests prior to any other distributions of principal from each such Loan
Group; and
(b) if the Calculation Rate in respect of the outstanding Class A and Class
B Interests is greater than the Subordinate Pass Through Rate, Principal
Relocation Payments will be made proportionately to the outstanding Class B
Interests prior to any other distributions of principal from each such Loan
Group.
In case of either (a) or (b), Principal Relocation Payments will be made so as
to cause the Calculation Rate in respect of the outstanding Class A and Class B
Interests to equal the Subordinate Pass Through Rate. With respect to each Loan
Group, if (and to the extent that) the sum of (a) the principal payments
comprising the Principal Amount received during the Due Period and (b) the
Realized Losses on the Mortgage Loans in that Loan Group are insufficient to
make the necessary reductions of principal on the Class A and Class B Interests,
then interest will be added to the Loan Group's other REMIC 1 Interests that are
not receiving Principal Relocation Payments, in proportion to their principal
balances.
(c) The outstanding aggregate Class A and Class B Interests for all Loan
Groups will not be reduced below 1% of the excess of (i) the aggregate
Stated Principal Balances of the Mortgage Loans as of the end of any Due
Period over (ii) the Certificate Balance of the Senior Certificates
2
(excluding the Class A-R Certificates) for all Certificate Groups as of the
related Distribution Date (after taking into account distributions of
principal on such Distribution Date).
If (and to the extent that) the limitation in paragraph (c) prevents the
distribution of principal to the Class A and Class B Interests of a Loan Group,
and if the Loan Group's Class C Interest has already been reduced to zero, then
the excess principal from that Loan Group will be paid to the Class C Interests
of the other Loan Group, the aggregate Class A and Class B Interests of which
are less than 1% of the Assumed Balance. If the Mortgage Loans in the Loan Group
of the Class C Interest that receives such payment has a Weighted Average
Adjusted Net Mortgage Rate below the Weighted Average Adjusted Net Mortgage Rate
of the Loan Group making the payment, then the payment will be treated by the
REMIC 1 as a Realized Loss. Conversely, if the Loan Group of the Class C
Interest that receives such payment has a Weighted Average Adjusted Net Mortgage
Rate above the Weighted Average Adjusted Net Mortgage Rate of the Loan Group
making the payment, then the payment will be treated by the REMIC 1 as a
reimbursement for prior Realized Losses.
REMIC 2
The REMIC 2 Interests will have the initial principal balance, Pass-Through
Rates and corresponding Loan Groups as set forth in the following table:
Initial Principal Pass-Through Corresponding Class of
REMIC 2 Interests Balance Rate Certificates (1)
----------------- ------- ---- ----------------
Class 2-1-A $161,870,000 Variable(2) Class 1-A
Class 2-2-A $49,435,000 Variable(3) Class 2-A
Class 2-$100 $100 (4) Class A-R
Class 2-B-1 $10,580,000 Variable(5) Class B-1
Class 2-B-2 $5,960,000 Variable(5) Class B-2
Class 2-B-3 $3,725,000 Variable(5) Class B-3
Class 2-B-4 $2,980,000 Variable(5) Class B-4
Class 2-B-5 $1,790,000 Variable(5) Class B-5
Class 2-B-6 $1,190,614.49 Variable(5) Class B-6
Class 2-P $100 (6) Class P
Class R-2 (7) (7) N/A
(1) On each Distribution Date, Realized Losses and payments of principal will be
allocated to each REMIC 2 Regular Interest in the same amounts as they are
allocated to their Corresponding Class of Certificates.
(2) The Class 2-1-A Interest will bear interest during each Interest Accrual
Period for any Distribution Date at a per annum rate equal to the Weighted
Average Adjusted Net Mortgage Rate of the Group 1 Mortgage Loans as of that
Distribution Date.
(3) The Pass-Through Rate for the Class 2-2-A Interest will be a per annum rate
that, for the Interest Accrual Period for any Distribution Date at a per annum
rate equal the Weighted Average Adjusted Net Mortgage Rate of the Group 2
Mortgage Loans as of that Distribution Date.
(4) The Pass-Through Rate for the Class 2-$100 Interest for each Interest
Accrual Period for any Distribution Date will be a per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate of the Group 1 Mortgage Loans.
3
(5) The Pass-Through Rate for each such Class for each Interest Accrual Period
for any Distribution Date will be a per annum rate equal to the Calculation
Rate.
(6) The Class 2-P Interests will not be entitled to any interest, but will be
entitled to 100% of any Prepayment Charges paid on the Mortgage Loans.
(7) The Class R-2 Interest is the sole class of residual interest in REMIC 2. It
has no principal balance and pays no principal or interest.
The Master REMIC
The following table sets forth characteristics of the Certificates,
together with the minimum denominations and integral multiples in excess thereof
in which such Classes shall be issuable (except that one Certificate of each
Class of Certificates may be issued in a different amount):
======================= ======================== ===================== ==================== ========================
Initial Class Pass-Through Minimum Integral Multiples in
Class Designation Certificate Balance Rate Denomination Excess of Minimum
---------------------- ------------------------ --------------------- -------------------- ------------------------
Class 1-A $178,152,000 Variable(1) $ 25,000 $1,000
----------------------- ------------------------ --------------------- -------------------- ------------------------
Class 1-X (2) Variable(3) $ 25,000(4) $1,000(4)
----------------------- ------------------------ --------------------- -------------------- ------------------------
Class 2-A $126,344,000 Variable(5) $ 25,000 $1,000
----------------------- ------------------------ --------------------- -------------------- ------------------------
Class 2-X (2) Variable(6) $ 25,000(4) $1,000(4)
----------------------- ------------------------ --------------------- -------------------- ------------------------
Class A-R $100 (7) $ 100 N/A
----------------------- ------------------------ --------------------- -------------------- ------------------------
Class B-1 $8,985,000 Variable(8) $ 25,000 $1,000
----------------------- ------------------------ --------------------- -------------------- ------------------------
Class B-2 $6,988,000 Variable(8) $ 25,000 $1,000
----------------------- ------------------------ --------------------- -------------------- ------------------------
Class B-3 $4,992,000 Variable(8) $ 25,000 $1,000
----------------------- ------------------------ --------------------- -------------------- ------------------------
Class B-4 $4,160,000 Variable(8) $ 25,000 $1,000
----------------------- ------------------------ --------------------- -------------------- ------------------------
Class B-5 $1,830,000 Variable(8) $ 25,000 $1,000
----------------------- ------------------------ --------------------- -------------------- ------------------------
Class B-6 $1,333,420.18 Variable(8) $ 25,000 $1,000
----------------------- ------------------------ --------------------- -------------------- ------------------------
Class P $100.00 0%(9) $ 100 N/A
======================= ======================== ===================== ==================== ========================
(1) The Pass-Through Rate for the Class 1-A Certificates will be a per annum
rate that, for each Interest Accrual Period related to each Distribution Date
(a) to and including the Weighted Average Initial Adjustment Date for Loan Group
1 will equal the Weighted Average Adjusted Net Mortgage Rate of the Group 1
Mortgage Loans minus 0.4910% per annum and (b) following the Weighted Average
Initial Adjustment Date for Loan Group 1, will equal the Weighted Average
Adjusted Net Mortgage Rate of the Group 1 Mortgage Loans. The Pass-Through Rate
for the Class 1-A Certificates for the Interest Accrual Period related to the
first Distribution Date will be 4.6994% per annum.
(2) The Class 1-X and Class 2-X Certificates will be Notional Amount
Certificates, will have no Class Certificate Balances, will pay no principal and
will bear interest on their Notional Amounts (initially $178,152,000 and
$126,344,000, respectively).
(3) The Pass-Through Rate for the Class 1-X Certificates for (x) each Interest
Accrual Period related to each Distribution Date to and including the Weighted
Average Initial Adjustment Date for Loan Group 1, will be 0.4910% per annum and
(y) for each Interest Accrual Period related to each Distribution Date after the
Weighted Average Initial Adjustment Date for Loan Group 1 will be 0% per annum.
(4) Minimum denomination is based on the Notional Amount of the Class.
4
(5) The Pass-Through Rate for the Class 2-A Certificates will be a per annum
rate that, for each Interest Accrual Period related to each Distribution Date
(a) to and including the Weighted Average Initial Adjustment Date for Loan Group
2 will equal the Weighted Average Adjusted Net Mortgage Rate of the Group 2
Mortgage Loans minus 0.3930% per annum and (b) following the Weighted Average
Initial Adjustment Date for Loan Group 2, will equal the Weighted Average
Adjusted Net Mortgage Rate of the Group 2 Mortgage Loans. The Pass-Through Rate
for the Class 2-A Certificates for the Interest Accrual Period related to the
first Distribution Date will be 5.0849% per annum.
(6) The Pass-Through Rate for the Class 2-X Certificates for (x) each Interest
Accrual Period related to each Distribution Date to and including the Weighted
Average Initial Adjustment Date for Loan Group 2, will be 0.3930% per annum and
(y) for each Interest Accrual Period related to each Distribution Date after the
Weighted Average Initial Adjustment Date for Loan Group 2 will be 0% per annum.
(7) The Pass-Through Rate for the Class A-R Certificates for each Interest
Accrual Period related to each Distribution Date will be a per annum rate equal
to the Weighted Average Adjusted Net Mortgage Rate of the Group 1 Mortgage
Loans.
(8) The Pass-Through Rate for each Class of Subordinated Certificates for each
Interest Accrual Period for any Distribution Date will be a per annum rate equal
to the Subordinate Pass-Through Rate. The Pass-Through Rate for the Subordinate
Certificates for the Interest Accrual Period related to the first Distribution
Date will be 5.3097% per annum. For federal income tax purposes, the
Pass-Through Rate for each Class of Subordinated Certificates for each Interest
Accrual Period for any Distribution Date will be the Calculation Rate.
(9) The Class P Certificates will not be entitled to any interest, but will be
entitled to 100% of any Prepayment Charges paid on the Mortgage Loans.
The foregoing REMIC structure is intended to cause all of the cash from the
Mortgage Loans to flow through to the Master REMIC as cash flow on a REMIC
regular interest, without creating any shortfall--actual or potential (other
than for credit losses) to any REMIC regular interest. It is not intended that
the Class A-R Certificates be entitled to any cash flow pursuant to this
Agreement except as provided in Section 4.02(a)(1)(i) and (iii)(B) under this
Agreement.
For any purpose for which the Pass-Through Rates is calculated, the
interest rate on the Mortgage Loans shall be appropriately adjusted to account
for the difference between the monthly day count convention of the Mortgage
Loans and the monthly day count convention of the regular interests issued by
each of the REMICs. For purposes of calculating the Pass-Through Rates for each
of the interests issued by REMIC 1 and the Master REMIC such rates shall be
adjusted to equal a monthly day count convention based on a 30 day month for
each Due Period and a 360-day year so that the Mortgage Loans and all regular
interests will be using the same monthly day count convention.
Set forth below are designations of Classes of Certificates to the
categories used in this Agreement:
Accretion Directed Certificates.......................... None.
Accrual Certificates..................................... None.
Book-Entry Certificates.................................. All Classes of
Certificates other
than the Physical
Certificates.
5
COFI Certificates........................................ None.
Components............................................... None.
Component Certificates................................... None.
Delay Certificates....................................... All interest-bearing
Classes of
Certificates other
than any Non-Delay
Certificates.
ERISA-Restricted Certificates............................ The Residual
Certificates and the
Private
Certificates; the
Retained
Certificates until
they have been the
subject of an
ERISA-Qualifying
Underwriting; and
Certificates of any
Class that ceases to
satisfy the rating
requirements of the
Underwriter's
Exemption.
Group 1 Senior Certificates.............................. Class 1-A, Class 1-X
and Class A-R
Certificates.
Group 1 Certificates..................................... Group 1 Senior
Certificates and the
portions of the
Subordinated
Certificates related
to Loan Group 1.
Group 2 Senior Certificates.............................. Class 2-A and Class
2-X Certificates.
Group 2 Certificates..................................... Group 2 Senior
Certificates and the
portions of the
Subordinated
Certificates related
to Loan Group 2.
LIBOR Certificates....................................... None.
Non-Delay Certificates................................... LIBOR Certificates.
Notional Amount Certificates............................. Class 1-X and Class
2-X Certificates.
Offered Certificates..................................... All Classes of
Certificates other
than the Private
Certificates.
Physical Certificates.................................... Class A-R
Certificates and the
Private
Certificates.
Planned Principal Classes................................ None.
Principal Only Certificates.............................. None.
Private Certificates..................................... Class P, Class B-4,
Class B-5 and Class
B-6 Certificates.
Rating Agencies.......................................... Xxxxx'x and S&P.
Regular Certificates..................................... All Classes of
Certificates other
than the Class
6
A-R Certificates.
Residual Certificate..................................... Class A-R
Certificates.
Retained Certificates.................................... Class B-1
Certificates.
Senior Certificates...................................... Class 1-A, Class
1-X, Class 2-A,
Class 2-X and Class
A-R Certificates.
Senior Certificate Group................................. The Group 1 Senior
Certificates and the
Group 2 Senior
Certificates, as
applicable.
Subordinated Certificates................................ Class B-1, Class
B-2, Class B-3,
Class B-4, Class B-5
and Class B-6
Certificates.
Targeted Principal Classes............................... None.
Targeted Principal Component............................. None.
With respect to any of the foregoing designations as to which the
corresponding reference is "None," all defined terms and provisions in this
Agreement relating solely to such designations shall be of no force or effect,
and any calculations in this Agreement incorporating references to such
designations shall be interpreted without reference to such designations and
amounts. Defined terms and provisions in this Agreement relating to statistical
rating agencies not designated above as Rating Agencies shall be of no force or
effect.
7
ARTICLE ONE
DEFINITIONS
Section 1.01 Definitions.
Unless the context requires a different meaning, capitalized terms are used
in this Agreement as defined below.
Accretion Directed Certificates: As specified in the Preliminary Statement.
Accretion Direction Rule: Not applicable.
Accrual Amount: Not applicable.
Accrual Certificates: As specified in the Preliminary Statement.
Accrual Termination Date: Not applicable.
Adjusted Mortgage Rate: As to each Mortgage Loan and at any time, the per
annum rate equal to the Mortgage Rate less the Servicing Fee Rate.
Adjusted Net Mortgage Rate: As to each Mortgage Loan and any Distribution
Date, the per annum rate equal to the Mortgage Rate of that Mortgage Loan less
the Expense Fee Rate for that Mortgage Loan.
Adjustment Date: A date specified in each Mortgage Note as a date on which
the Mortgage Rate on the related Mortgage Loan is subject to adjustment.
Advance: As to a Loan Group, the payment required to be made by the 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 Servicing Fee) on the Mortgage Loans in such Loan Group
that were due during the related Due Period and not received as of the close of
business on the related Determination Date, together with an amount equivalent
to interest on each REO Property, net of any net income from such REO Property,
less the aggregate amount of any such delinquent payments that the Master
Servicer has determined would constitute a Nonrecoverable Advance if advanced.
Advance Notice: As defined in Section 4.01(b).
Advance Deficiency: As defined in Section 4.01(b).
Affiliate: With respect to any Person, any other Person controlling,
controlled or under common control with such Person. For purposes of this
definition, "control" means the power to direct the management and policies of a
Person, directly or indirectly, whether through ownership of voting securities,
by contract, or otherwise and "controlling" and "controlled" shall have meanings
correlative to the foregoing. Affiliates also include any entities consolidated
with the requirements of generally accepted accounting principles.
Aggregate Subordinated Percentage: With respect to any Distribution Date,
the fraction, expressed as a percentage, the numerator of which is equal to the
aggregate Class Certificate Balance of
8
the Subordinated Certificates immediately prior to such Distribution Date and
the denominator of which is the aggregate Stated Principal Balance of all the
Mortgage Loans as of the Due Date in the month preceding the month of such
Distribution Date (after giving effect to Principal Prepayments received in the
Prepayment Period related to that prior Due Date).
Agreement: This Pooling and Servicing Agreement and all amendments and
supplements.
Allocable Share: As to any Distribution Date and Class of Certificates, the
ratio that the amount calculated with respect to such Distribution Date (A) with
respect to the Senior Certificates of the related Senior Certificate Group,
pursuant to clause (i) of the definition of Class Optimal Interest Distribution
Amount (without giving effect to any reduction of such amount pursuant to
Section 4.02 (d)) and (B) with respect to the Subordinated Certificates,
pursuant to the definition of Assumed Interest Amount or after a Senior
Termination Date pursuant to clause (i) of the definition of Class Optimal
Interest Distribution Amount (without giving effect to any reduction of such
amount pursuant to Section 4.02(d)) bears to the amount calculated with respect
to such Distribution Date for each Class of Certificates pursuant to clause (i)
of the definition of Class Optimal Interest Distribution Amount (without giving
effect to any reduction of such amount pursuant to Section 4.02(d)) or the
definition of Assumed Interest Amount for such Loan Group and Class, as
applicable.
Amount Available for Senior Principal: As to any Distribution Date and Loan
Group, the related Available Funds for such Distribution Date, reduced by the
aggregate amount distributable (or allocable to the Accrual Amount, if
applicable) on such Distribution Date in respect of interest on the related
Senior Certificates pursuant to Sections 4.02(a)(1)(i) and Section
4.02(a)(2)(i).
Amount Held for Future Distribution: As to any Distribution Date and the
Mortgage Loans in a Loan Group, the aggregate amount held in the Certificate
Account at the close of business on the related Determination Date on account of
(i) Principal Prepayments received after the last day of the related Prepayment
Period and Liquidation Proceeds and Subsequent Recoveries relating to the
Mortgage Loans in such Loan Group received in the month of such Distribution
Date and (ii) all Scheduled Payments relating to Mortgage Loans in that Loan
Group due after the related Due Date.
Applicable Credit Support Percentage: As defined in Section 4.02(e).
Appraised Value: With respect to any Mortgage Loan, the Appraised Value of
the related Mortgaged Property shall be: (i) with respect to a Mortgage Loan
other than a Refinance Loan, the lesser of (a) the value of the Mortgaged
Property based upon the appraisal made at the time of the origination of such
Mortgage Loan and (b) the sales price of the Mortgaged Property at the time of
the origination of such Mortgage Loan; (ii) with respect to a Refinance Loan,
the value of the Mortgaged Property based upon the appraisal made at the time of
the origination of such Refinance Loan.
Assignment Agreement: The Assignment, Assumption and Recognition Agreement,
dated as of November 1, 2004, between EMC Mortgage Corporation, as Seller, and
the Depositor, as purchaser.
Assumed Balance: With respect to any Distribution Date, Class of
Subordinated Certificates and Loan Group, each such Class' pro rata interest
(based on their respective Class Certificate Balances) in such Loan Group equal
to the product of the Subordinated Percentage for such Loan Group as of such
Distribution Date and the aggregate Stated Principal Balance of each Mortgage
Loan in such Loan Group as of the Due Date occurring in the month preceding the
month of such Distribution Date (after giving effect to Principal Prepayments
received in the Prepayment Period related to such prior Due Date).
9
Assumed Interest Amount: With respect to any Distribution Date, any Class
of Subordinated Certificates and any Loan Group, one month's interest accrued
during the related Interest Accrual Period at the Subordinate Pass-Through Rate
on the related Assumed Balance immediately prior to that Distribution Date.
Available Funds: As to any Distribution Date and the Mortgage Loans in a
Loan Group, the sum of (a) the aggregate amount held in the Certificate Account
at the close of business on the related Determination Date, including any
Subsequent Recoveries, net of the Amount Held for Future Distribution, net of
Prepayment Charges and net of amounts permitted to be withdrawn from the
Certificate Account pursuant to clauses (i) - (viii), inclusive, of Section
3.09(a) and amounts permitted to be withdrawn from the Distribution Account
pursuant to clauses (i) - (iv), inclusive, of Section 3.09(b), (b) the amount of
the related Advance, (c) in connection with Defective Mortgage Loans in such
Loan Group, as applicable, the aggregate of the Purchase Prices and Substitution
Adjustment Amounts deposited on the related Distribution Account Deposit Date,
and (d) any amount deposited on the related Distribution Account Deposit Date
pursuant to Section 3.10. The Holders of the Class P Certificates will be
entitled to all Prepayment Charges received on the Mortgage Loans and such
amounts will not be available for distribution to the Holders of any other Class
of Certificates.
Bankruptcy Code: The United States Bankruptcy Reform Act of 1978, as
amended.
Bankruptcy Coverage Termination Date: The point in time at which the
Bankruptcy Loss Coverage Amount is reduced to zero.
Bankruptcy Loss: With respect to any Mortgage Loan, a Deficient Valuation
or Debt Service Reduction; provided, however, that a Bankruptcy Loss shall not
be deemed a Bankruptcy Loss under this Agreement so long as the Master Servicer
has notified the Trustee in writing that the Master Servicer is diligently
pursuing any remedies that may exist in connection with the related Mortgage
Loan and either (A) the related Mortgage Loan is not in default with regard to
payments due under the Mortgage Loan or (B) delinquent payments of principal and
interest under the related Mortgage Loan and any related escrow payments in
respect of such Mortgage Loan are being advanced on a current basis by the
Master Servicer, in either case without giving effect to any Debt Service
Reduction or Deficient Valuation.
Bankruptcy Loss Coverage Amount: As of any date of determination, the
Bankruptcy Loss Coverage Amount shall equal the Initial Bankruptcy Loss Coverage
Amount as reduced by (i) the aggregate amount of Bankruptcy Losses allocated to
the Certificates since the Cut-off Date and (ii) any permissible reductions in
the Bankruptcy Loss Coverage Amount as evidenced by a letter of each Rating
Agency to the Trustee to the effect that any such reduction will not result in a
downgrading, qualification or withdrawal of the then current ratings assigned to
the Classes of Certificates rated by it.
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, 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.
Calculation Rate: For each Distribution Date, the product of (i) 10 and
(ii) the weighted average pass-through rate of the outstanding Class A and Class
B Interests, treating each of the Class A Interests as capped at zero or reduced
by a fixed percentage of 100% of the interest accruing on such Class.
10
Certificate: Any one of the certificates issued by the Trust Fund and
executed by the Trustee in substantially the forms attached as exhibits.
Certificate Account: The separate Eligible Account or Accounts created and
maintained by the Master Servicer pursuant to Section 3.06(d) 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 IndyMac INDX Mortgage Loan Trust 2004-AR11, Mortgage
Pass-Through Certificates, Series 2004-AR11."
Certificate Balance: With respect to any Certificate (other than a Notional
Amount Certificate) at any date of determination, the maximum dollar amount of
principal to which the Holder thereof is then entitled under this Agreement,
such amount being equal to the Denomination thereof (A) plus any increase in the
Certificate Balance of such Certificate pursuant to Section 4.02 due to the
receipt of Subsequent Recoveries on the Mortgage Loans in a Loan Group, (B)
minus the sum of (i) all distributions of principal previously made with respect
thereto and (ii) all Realized Losses allocated to that Certificate and, in the
case of any Subordinated Certificates, all other reductions in Certificate
Balance previously allocated to that Certificate pursuant to Section 4.05 and
(C) in the case of any Class of Accrual Certificates, plus the Accrual Amount
added to the Class Certificate Balance of such Class prior to such date. The
Notional Amount Certificates have no Certificate Balances.
Certificate Group: Any of the Group 1 or Group 2 Certificates, as the
context requires.
Certificate Owner: With respect to a Book-Entry Certificate, the Person who
is the beneficial owner of the Book-Entry Certificate. For the purposes of this
Agreement, in order for a Certificate Owner to enforce any of its rights under
this Agreement, it shall first have to provide evidence of its beneficial
ownership interest in a Certificate that is reasonably satisfactory to the
Trustee, the Depositor and/or the Master Servicer, as applicable.
Certificate Register: The register maintained pursuant to Section 5.02.
Certificateholder or Holder: The person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purpose of
giving any consent pursuant to this Agreement, any Certificate registered in the
name of the Depositor or any affiliate of the Depositor is not Outstanding and
the Percentage Interest evidenced thereby shall not be taken into account in
determining whether the requisite amount of Percentage Interests necessary to
effect a consent has been obtained, except that if the Depositor or its
affiliates own 100% of the Percentage Interests evidenced by a Class of
Certificates, the Certificates shall be Outstanding for purposes of any
provision of this Agreement requiring the consent of the Holders of Certificates
of a particular Class as a condition to the taking of any action. The Trustee is
entitled to rely conclusively on a certification of the Depositor or any
affiliate of the Depositor in determining which Certificates are registered in
the name of an affiliate of the Depositor.
Class: All Certificates bearing the same class designation as set forth in
the Preliminary Statement.
Class A Interest: Each of the Class A-1 and Class A-2 Interests.
Class B Interest: Each of the Class B-1 and Class B-2 Interests.
Class C Interest: Each of the Class C-1 and Class C-2 Interests.
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Class Certificate Balance: For any Class as of any date of determination,
the aggregate of the Certificate Balances of all Certificates of the Class as of
that date.
Class Interest Shortfall: As to any Distribution Date and Class, the amount
by which the amount described in clause (i) of the definition of Class Optimal
Interest Distribution Amount for such Class exceeds the amount of interest
actually distributed on such Class on such Distribution Date pursuant to such
clause (i).
Class Optimal Interest Distribution Amount: With respect to any
Distribution Date and interest-bearing Class, the sum of (i) one month's
interest accrued during the related Interest Accrual Period at the Pass-Through
Rate for such Class, on the related Class Certificate Balance or Notional
Amount, as applicable, immediately prior to such Distribution Date, subject to
reduction pursuant to Section 4.02(d), and (ii) any Class Unpaid Interest
Amounts for such Class.
Class Subordination Percentage: With respect to any Distribution Date and
each Class of Subordinated Certificates, the fraction (expressed as a
percentage), the numerator of which is the Class Certificate Balance of such
Class of Subordinated Certificates immediately prior to such Distribution Date
and the denominator of which is the aggregate of the Class Certificate Balances
of all Classes of Certificates immediately prior to such Distribution Date.
Class Unpaid Interest Amounts: As to any Distribution Date and Class of
interest-bearing Certificates, the amount by which the aggregate Class Interest
Shortfalls for such Class on prior Distribution Dates exceeds the amount
distributed on such Class on prior Distribution Dates pursuant to clause (ii) of
the definition of Class Optimal Interest Distribution Amount.
Closing Date: November 30, 2004.
CMT Index: Not applicable.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
COFI: Not applicable.
COFI Certificates: Not applicable.
Collection Account: As defined in Section 3.06(c).
Compensating Interest: For any Distribution Date, 0.125% multiplied by
one-twelfth multiplied by the aggregate Stated Principal Balance of the Mortgage
Loans as of the first day of the related Due Period.
Co-op Shares: Shares issued by a Cooperative Corporation.
Cooperative Corporation: The entity that holds title (fee or an acceptable
leasehold estate) to the real property and improvements constituting the
Cooperative Property and that governs the Cooperative Property, which
Cooperative Corporation must qualify as a Cooperative Housing Corporation under
section 216 of the Code.
Cooperative Loan: Any Mortgage Loan secured by Co-op Shares and a
Proprietary Lease.
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Cooperative Property: The real property and improvements owned by the
Cooperative Corporation, including the allocation of individual dwelling units
to the holders of the Co-op Shares of the Cooperative Corporation.
Cooperative Unit: A single family dwelling located in a Cooperative
Property.
Corporate Trust Office: The designated office of the Trustee in the State
of California at which at any particular time its corporate trust business with
respect to this Agreement is administered, which office at the date of the
execution of this Agreement is located at 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx,
Xxxxxxxxxx 00000, Attn: Mortgage Administration-IN04AB (IndyMac MBS, Inc.,
IndyMac INDX Mortgage Loan Trust 2004-AR11, Mortgage Pass-Through Certificates,
Series 2004-AR11), and which is the address to which notices to and
correspondence with the Trustee should be directed.
Cross-over Situation: For any Distribution Date and for any Loan Group
(after taking into account principal distributions on such Distribution Date) a
Cross-Over Situation exists with respect to the Class A and Class B Interests of
the Loan Group if such Interests in the aggregate are less than 1% of the
Assumed Balance of the related Loan Group.
Cut-off Date: November 1, 2004.
Cut-off Date Pool Principal Balance: $332,783,520.
Cut-off Date Principal Balance: As to any Mortgage Loan, its Stated
Principal Balance as of the close of business on the Cut-off Date.
Debt Service Reduction: For any Mortgage Loan, a reduction by a court of
competent jurisdiction in a proceeding under the Bankruptcy Code in the
Scheduled Payment for the Mortgage Loan that became final and non-appealable,
except a reduction resulting from a Deficient Valuation or a reduction that
results in a permanent forgiveness of principal.
Defective Mortgage Loan: Any Mortgage Loan that is required to be
repurchased pursuant to Section 2.02 or 2.03.
Deficient Valuation: For any Mortgage Loan, a valuation by a court of
competent jurisdiction of the Mortgaged Property in an amount less than the then
outstanding indebtedness under the Mortgage Loan, or any reduction in the amount
of principal to be paid in connection with any Scheduled Payment that results in
a permanent forgiveness of principal, which valuation or reduction results from
an order of the court that is final and non-appealable in a proceeding under the
Bankruptcy Code.
Definitive Certificates: Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 5.02(e).
Delay Certificates: As specified in the Preliminary Statement.
Delay Delivery Certification: A certification substantially in the form of
Exhibit G-1.
Delay Delivery Mortgage Loans: The Mortgage Loans identified on the
Mortgage Loan Schedule for which none of a related Mortgage File, or neither the
Mortgage Note, nor a lost note affidavit for a lost Mortgage Note, has been
delivered to the Trustee by the Closing Date. The Depositor shall deliver the
Mortgage Files to the Trustee:
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(A) for at least 70% of the Mortgage Loans in each Loan Group, not later
than the Closing Date, and
(B) for the remaining 30% of the Mortgage Loans in each Loan Group, not
later than five Business Days following the Closing Date.
To the extent that the Transferor is in possession of any Mortgage File for
any Delay Delivery Mortgage Loan, until delivery of the Mortgage File to the
Trustee as provided in Section 2.01, the Transferor shall hold the files as
Master Servicer, as agent and in trust for the Trustee.
Deleted Mortgage Loan: As defined in Section 2.03(c).
Delinquent: A Mortgage Loan is "Delinquent" if any monthly payment due on a
Due Date is not made by the close of business on the next scheduled Due Date for
such Mortgage Loan. A Mortgage Loan is "30 days Delinquent" if such monthly
payment has not been received by the close of business on the corresponding day
of the month immediately succeeding the month in which such monthly payment was
due. The determination of whether a Mortgage Loan is "60 days Delinquent", "90
days Delinquent", etc. shall be made in a like manner.
Denomination: For each Certificate, the amount on the face of the
Certificate as the "Initial Certificate Balance of this Certificate" or the
"Initial Notional Amount of this Certificate" or, if neither of the foregoing,
the Percentage Interest appearing on the face of the Certificate.
Depositor: IndyMac MBS, Inc., a Delaware corporation, or its successor in
interest.
Depository: The initial Depository shall be The Depository Trust Company,
the nominee of which is CEDE & Co., as the registered Holder of the Book-Entry
Certificates. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(a)(5) of the UCC.
Depository Participant: A broker, dealer, bank, or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: As to any Distribution Date, the 18th day of each month
or if that day is not a Business Day the next Business Day, except that if the
next Business Day is less than two Business Days before the related Distribution
Date, then the Determination Date shall be the Business Day preceding the 18th
day of the month.
Distribution Account: The separate Eligible Account created and maintained
by the Trustee pursuant to Section 3.06(e) in the name of the Trustee for the
benefit of the Certificateholders and designated "Deutsche Bank National Trust
Company in trust for registered holders of IndyMac INDX Mortgage Loan Trust
2004-AR11, Mortgage Pass-Through Certificates, Series 2004-AR11." Funds in the
Distribution Account shall be held in trust for the Certificateholders for the
uses and purposes set forth in this Agreement.
Distribution Account Deposit Date: As to any Distribution Date, 12:30 P.M.
Pacific time on the Business Day preceding the Distribution Date.
Distribution Date: The 25th day of each calendar month after the initial
issuance of the Certificates, or if that day is not a Business Day, the next
Business Day, commencing in December 2004.
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Due Date: For any Mortgage Loan and Distribution Date, the first day of the
month in which such Distribution Date occurs.
Due Period: For any Distribution Date, the period commencing on the second
day of the month preceding the month in which the Distribution Date occurs and
ending on the first day of the month in which the Distribution Date occurs.
Eligible Account: Any of
(i) an account maintained with a federal or state chartered depository
institution or trust company the short-term unsecured debt obligations of which
(or, in the case of a depository institution or trust company that is the
principal subsidiary of a holding company, the debt obligations of the holding
company, but only if Xxxxx'x is not a Rating Agency) have the highest short-term
ratings of each Rating Agency at the time any amounts are held on deposit
therein, or
(ii) [reserved], 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 the
Underwriter's Exemption.
ERISA-Restricted Certificate: As specified in the Preliminary Statement.
Escrow Account: The Eligible Account or Accounts established and maintained
pursuant to Section 3.07(a).
Event of Default: As defined in Section 7.01.
Excess Loss: The amount of any (i) Fraud Loss on the Mortgage Loans
realized after the Fraud Loss Coverage Termination Date, (ii) Special Hazard
Loss on the Mortgage Loans realized after the Special Hazard Coverage
Termination Date or (iii) Bankruptcy Loss on the Mortgage Loans realized after
the Bankruptcy Coverage Termination Date.
Excess Proceeds: For any Liquidated Mortgage Loan, the excess of
(a) all Liquidation Proceeds from the Mortgage Loan received in the
calendar month in which the Mortgage Loan became a Liquidated Mortgage Loan, net
of any amounts previously reimbursed to the Master Servicer as Nonrecoverable
Advances with respect to the Mortgage Loan pursuant to Section 3.09(a)(iii),
over
(b) the sum of (i) the unpaid principal balance of the Liquidated Mortgage
Loan as of the Due Date in the month in which the Mortgage Loan became a
Liquidated Mortgage Loan plus (ii) accrued interest at the Mortgage Rate from
the Due Date for which interest was last paid or advanced (and not
15
reimbursed) to Certificateholders up to the Due Date applicable to the
Distribution Date following the calendar month during which the liquidation
occurred.
Expense Fee Rate: As to each Mortgage Loan, the sum of (a) the related
Servicing Fee Rate, (b) the Trustee Fee Rate and (c) any interest premium
charged by the mortgagee to obtain or maintain any Primary Insurance Policy.
FDIC: The Federal Deposit Insurance Corporation, or any successor thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of the
Emergency Home Finance Act of 1970, as amended, or any successor thereto.
Fitch: Fitch, Inc., or any successor thereto. If Fitch is designated as a
Rating Agency in the Preliminary Statement, for purposes of Section 10.05(b) the
address for notices to Fitch shall be Fitch, Inc., Xxx Xxxxx Xxxxxx Xxxxx, Xxx
Xxxx, XX 00000, Attention: MBS Monitoring - IndyMac 2004-AR11, or any other
address Fitch furnishes to the Depositor and the Master Servicer.
FNMA: The Federal National Mortgage Association, a federally chartered and
privately owned corporation organized and existing under the Federal National
Mortgage Association Charter Act, or any successor thereto.
Fraud Loan: A Liquidated Mortgage Loan as to which a Fraud Loss has
occurred.
Fraud Loss Coverage Amount: As of the Closing Date, $6,655,670, subject to
reduction from time to time, by the amount of Fraud Losses allocated to the
Certificates. In addition, on each anniversary of the Cut-off Date, the Fraud
Loss Coverage Amount will be reduced as follows: (a) on the first, second, third
and fourth anniversaries of the Cut-off Date, to an amount equal to the lesser
of (i) 2.00% of the then current Stated Principal Balance of the Mortgage Loans
in the case of the first anniversary and 1.00% of the then-current Stated
Principal Balance of the Mortgage Loans in the case of the second, third and
fourth such anniversaries and (ii) the excess of the Fraud Loss Coverage Amount
as of the preceding anniversary of the Cut-off Date over the cumulative amount
of Fraud Losses allocated to the Certificates since such preceding anniversary;
and (b) on the fifth anniversary of the Cut-off Date, to zero.
Fraud Loss Coverage Termination Date: The point in time at which the Fraud
Loss Coverage Amount is reduced to zero.
Fraud Losses: Realized Losses on Mortgage Loans as to which a loss is
sustained by reason of a default arising from fraud, dishonesty or
misrepresentation in connection with the related Mortgage Loan, including a loss
by reason of the denial of coverage under any related Primary Insurance Policy
because of such fraud, dishonesty or misrepresentation.
Gross Margin: With respect to each Mortgage Loan, the fixed percentage set
forth in the related Mortgage Note that is added to the Mortgage Index on each
Adjustment Date in accordance with the terms of the related Mortgage Note used
to determine the Mortgage Rate for such Mortgage Loan.
Group 1 Certificates: As specified in the Preliminary Statement.
Group 1 Mortgage Loan: Any Mortgage Loan in Loan Group 1.
Group 1 Senior Certificates: As specified in the Preliminary Statement.
16
Group 1 Weighted Average Initial Adjustment Date: The Distribution Date in
October 2007.
Group 2 Certificates: As specified in the Preliminary Statement.
Group 2 Mortgage Loan: Any Mortgage Loan in Loan Group 2.
Group 2 Senior Certificates: As specified in the Preliminary Statement.
Group 2 Weighted Average Initial Adjustment Date: The Distribution Date in
October 2009.
Index: Not applicable.
Indirect Participant: A broker, dealer, bank, or other financial
institution or other Person that clears through or maintains a custodial
relationship with a Depository Participant.
Initial Bankruptcy Loss Coverage Amount: $148,299.
Initial LIBOR Rate: Not applicable.
Insurance Policy: For any Mortgage Loan included in the Trust Fund, any
insurance policy, including all riders and endorsements thereto in effect,
including any replacement policy or policies for any Insurance Policies.
Insurance Proceeds: Proceeds paid by an insurer pursuant to any Insurance
Policy, in each case other than any amount included in such Insurance Proceeds
in respect of Insured Expenses.
Insured Expenses: Expenses covered by an Insurance Policy or any other
insurance policy with respect to the Mortgage Loans.
Interest Accrual Period: With respect to each Class of Delay Certificates
and any Distribution Date, the calendar month prior to the month of such
Distribution Date. With respect to each Class of Non-Delay Certificates and any
Distribution Date, the one-month 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. All Classes of
Certificates will accrue interest on the basis of a 360-day year consisting of
twelve 30-day months.
Interest Determination Date: With respect to (a) any Interest Accrual
Period for any LIBOR Certificates and (b) any Interest Accrual Period for the
COFI Certificates for which the applicable Index is LIBOR, the second Business
Day prior to the first day of such Interest Accrual Period.
Interest Rate: With respect to each REMIC 1 Interest, the applicable rate
set forth or calculated in the manner described in the Preliminary Statement.
Interest Settlement Rate: As defined in Section 4.08.
Last Scheduled Distribution Date: The Distribution Date in the month
immediately following the month of the latest scheduled maturity date for any of
the Mortgage Loans.
Latest Possible Maturity Date: The Distribution Date following the third
anniversary of the scheduled maturity date of the Mortgage Loan having the
latest scheduled maturity date as of the Cut-off Date.
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Lender PMI Loans: Mortgage Loans with respect to which the lender rather
than the borrower acquired the primary mortgage guaranty insurance and charged
the related borrower an interest premium.
LIBOR: The London interbank offered rate for one month United States dollar
deposits calculated in the manner described in Section 4.08.
LIBOR Determination Date: For any Interest Accrual Period, the second
London Business Day prior to the commencement of such Interest Accrual Period.
Liquidated Mortgage Loan: For any Distribution Date, a defaulted Mortgage
Loan (including any REO Property) that was liquidated in the calendar month
preceding the month of the Distribution Date and as to which the Master Servicer
has certified (in accordance with this Agreement) that it has received all
amounts it expects to receive in connection with the liquidation of the Mortgage
Loan, including the final disposition of an REO Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds regardless of
when received, received in connection with the partial or complete liquidation
of defaulted Mortgage Loans, whether through trustee's sale, foreclosure sale,
or otherwise or amounts received in connection with any condemnation or partial
release of a Mortgaged Property, and any other proceeds received in connection
with an REO Property, less the sum of related unreimbursed Servicing Fees,
Servicing Advances, and Advances.
Loan Group: Either of Loan Group 1 or Loan Group 2, as applicable.
Loan Group 1: All Mortgage Loans identified as Group 1 Mortgage Loans on
the Mortgage Loan Schedule.
Loan Group 2: All Mortgage Loans identified as Group 2 Mortgage Loans on
the Mortgage Loan Schedule.
Loan-to-Value Ratio: For any Mortgage Loan and as of any date of
determination, is the fraction whose numerator is the original principal balance
of the related Mortgage Loan at that date of determination and whose denominator
is the Appraised Value of the related Mortgaged Property.
London Business Day: Any day on which dealings in deposits of United States
dollars are transacted in the London interbank market.
Lost Mortgage Note: Any Mortgage Note the original of which was permanently
lost or destroyed and has not been replaced.
Maintenance: For any Cooperative Unit, the rent paid by the Mortgagor to
the Cooperative Corporation pursuant to the Proprietary Lease.
Master Servicer: IndyMac Bank, F.S.B., a federal savings bank, and its
successors and assigns, in its capacity as master servicer under this Agreement.
Master Servicer Advance Date: As to any Distribution Date, 12:30 P.M.
Pacific time on the Business Day preceding the Distribution Date.
Maximum Mortgage Rate: For each Mortgage Loan, the percentage set forth in
the related Mortgage Note as the lifetime maximum Mortgage Rate to which such
Mortgage Rate may be adjusted.
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MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any successor
thereto.
MERS Mortgage Loan: Any Mortgage Loan registered with MERS on the MERS(R)
System.
MERS(R) System: The system of recording transfers of mortgages
electronically maintained by MERS.
MIN: The mortgage identification number for any MERS Mortgage Loan.
Minimum Mortgage Rate: For each Mortgage Loan, the percentage set forth in
the related Mortgage Note as the lifetime minimum Mortgage Rate to which such
Mortgage Rate may be adjusted.
MOM Loan: Any Mortgage Loan as to which MERS is acting as mortgagee, solely
as nominee for the originator of such Mortgage Loan and its successors and
assigns.
Moneyline Telerate Page 3750: The display page currently so designated on
the Moneyline Telerate Information Services, Inc. (or any page replacing that
page on that service for the purpose of displaying London inter-bank offered
rates of major banks).
Monthly Statement: The statement delivered to the Certificateholders
pursuant to Section 4.06.
Moody's: Xxxxx'x Investors Service, Inc., or any successor thereto. If
Xxxxx'x is designated as a Rating Agency in the Preliminary Statement, for
purposes of Section 10.05(b) the address for notices to Moody's shall be Xxxxx'x
Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Residential Loan Monitoring Group, or any other address that Moody's furnishes
to the Depositor and the Master Servicer.
Mortgage: The mortgage, deed of trust, or other instrument creating a first
lien on an estate in fee simple or leasehold interest in real property securing
a Mortgage Note.
Mortgage File: The mortgage documents listed in Section 2.01 pertaining to
a particular Mortgage Loan and any additional documents delivered to the Trustee
to be added to the Mortgage File pursuant to this Agreement.
Mortgage Index: One-Year CMT Index or Six-Month LIBOR Index.
Mortgage Loans: Such of the mortgage loans transferred and assigned to the
Trustee pursuant to this Agreement, as from time to time are held as a part of
the Trust Fund (including any REO Property), the Mortgage Loans so held being
identified on the Mortgage Loan Schedule, notwithstanding foreclosure or other
acquisition of title of the related Mortgaged Property.
Mortgage Loan Schedule: As of any date, the list set forth in Schedule I of
Mortgage Loans included in the Trust Fund on that date. The Mortgage Loan
Schedule shall be prepared by the Transferor and shall set forth the following
information with respect to each Mortgage Loan by Loan Group:
(i) the loan number;
(ii) the street address of the Mortgaged Property, including the zip
code;
(iii) the maturity date;
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(iv) the original principal balance;
(v) the Cut-off Date Principal Balance;
(vi) the first payment date of the Mortgage Loan;
(vii) the Scheduled Payment in effect as of the Cut-off Date;
(viii) the Gross Margin in effect as of the Cut-off Date;
(ix) the Maximum Mortgage Rate in effect as of the Cut-off Date;
(x) the Adjustment Date in effect as of the Cut-off Date;
(xi) a code indicating the Mortgage Index and when it is determined;
(xii) the Loan-to-Value Ratio at origination;
(xiii) a code indicating whether the residential dwelling at the time
of origination was represented to be owner-occupied;
(xiv) a code indicating whether the residential dwelling is either (a)
a detached single family dwelling, (b) a dwelling in a PUD, (c) a
condominium unit, (d) a two- to four-unit residential property, or (e)
a Cooperative Unit;
(xv) the Mortgage Rate in effect as of the Cut-off Date;
(xvi) the purpose for the Mortgage Loan;
(xvii) the type of documentation program pursuant to which the
Mortgage Loan was originated;
(xviii) a code indicating whether the Mortgage Loan is a borrower-paid
mortgage insurance loan;
(xix) the Servicing Fee Rate;
(xx) a code indicating whether the Mortgage Loan is a Lender PMI Loan;
(xxi) the coverage amount of any mortgage insurance;
(xxii) with respect to the Lender PMI Loans, the interest premium
charged by the lender;
(xxiii) a code indicating whether the Mortgage Loan is a Delay
Delivery Mortgage Loan;
(xxiv) the Minimum Mortgage Rate in effect as of the Cut-off Date; and
(xxv) a code indicating whether the Mortgage Loan is a MERS Mortgage
Loan.
20
The schedule shall also set forth the total of the amounts described under (v)
above for all of the Mortgage Loans and for each Loan Group.
Mortgage Note: The original executed note or other evidence of the
indebtedness of a Mortgagor under a Mortgage Loan.
Mortgage Rate: The annual rate of interest borne by a Mortgage Note from
time to time.
Mortgaged Property: The underlying property securing a Mortgage Loan,
which, with respect to a Cooperative Loan, is the related Co-op Shares and
Proprietary Lease.
Mortgagor: The obligors on a Mortgage Note.
National Cost of Funds Index: The National Monthly Median Cost of Funds
Ratio to SAIF-Insured Institutions published by the OTS.
Net Prepayment Interest Shortfall: As to any Distribution Date and Loan
Group, the amount by which the aggregate of Prepayment Interest Shortfalls for
such Loan Group exceeds an amount equal to the sum of (a) the Compensating
Interest allocable to such Loan Group and Distribution Date and (b) the excess,
if any, of the Compensating Interest allocable to the other Loan Group for such
Distribution Date over Prepayment Interest Shortfalls for such other Loan Group
and Distribution Date.
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.
Notional Amount: The Notional Amount of the Class 1-X Certificates for any
Interest Accrual Period for any Distribution Date will be equal to (i) on or
before the Weighted Average Initial Adjustment Date for Loan Group 1, the Class
Certificate Balance of the Class 1-A Certificates immediately prior to such
Distribution Date, and (ii) after the Weighted Average Initial Adjustment Date
for Loan Group 1, $0. The Notional Amount of the Class 2-X Certificates for any
Interest Accrual Period for any Distribution Date will be equal to (i) on or
before the Weighted Average Initial Adjustment Date for Loan Group 2, the Class
Certificate Balance of the Class 2-A Certificates immediately prior to such
Distribution Date, and (ii) after the Weighted Average Initial Adjustment Date
for Loan Group 2, $0.
Notional Amount Certificates: As specified in the Preliminary Statement.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: A certificate (i) signed by the Chairman of the
Board, the Vice Chairman of the Board, the President, a Managing Director, a
Vice President (however denominated), an Assistant Vice President, the
Treasurer, the Secretary, or one of the Assistant Treasurers or Assistant
Secretaries of the Depositor or the Master Servicer, or (ii) if provided for in
this Agreement, signed by a Servicing Officer, as the case may be, and delivered
to the Depositor and the Trustee as required by this Agreement.
21
One-Year CMT Index: The weekly average yield on United States Treasury
securities adjusted to a constant maturity of one year as published by the
Federal Reserve Board in Statistical Release H.15(591) and most recently
available as of a day specified in the related Mortgage Note.
Opinion of Counsel: For the interpretation or application of the REMIC
Provisions, a written opinion of counsel who (i) is in fact independent of the
Depositor and the Master Servicer, (ii) does not have any direct financial
interest in the Depositor or the Master Servicer or in any affiliate of either,
and (iii) is not connected with the Depositor or the Master Servicer as an
officer, employee, promoter, underwriter, trustee, partner, director, or person
performing similar functions. Otherwise, a written opinion of counsel who may be
counsel for the Depositor or the Master Servicer, including in-house counsel,
reasonably acceptable to the Trustee.
Original Applicable Credit Support Percentage: With respect to each of the
following Classes of Subordinated Certificates, the corresponding percentage
described below, as of the Closing Date:
Class B-1.................................... 8.50%
Class B-2.................................... 5.80%
Class B-3.................................... 3.70%
Class B-4.................................... 2.20%
Class B-5.................................... 0.95%
Class B-6.................................... 0.40%
Original Mortgage Loan: The Mortgage Loan refinanced in connection with the
origination of a Refinance Loan.
Original Subordinated Principal Balance: On or prior to a Senior
Termination Date, the Subordinated Percentage of the aggregate Stated Principal
Balance of the Mortgage Loans in the related Loan Group, in each case as of the
Cut-off Date; or if such date is after a Senior Termination Date, the aggregate
of the Class Certificate Balances of the Subordinated Certificates as of the
Closing Date.
OTS: The Office of Thrift Supervision.
Outside Reference Date: Not applicable.
Outstanding: For the Certificates as of any date of determination, all
Certificates theretofore executed and authenticated under this Agreement except:
(i) Certificates theretofore canceled by the Trustee or delivered to
the Trustee for cancellation; and
(ii) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered by the Trustee
pursuant to this Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan with a
Stated Principal Balance greater than zero that was not the subject of a
Principal Prepayment in Full before the Due Date or during the related
Prepayment Period and that did not become a Liquidated Mortgage Loan before the
Due Date.
Overcollateralized Group: As defined in Section 4.03.
22
Ownership Interest: As to any Residual Certificate, any ownership
interest in the Certificate including any interest in the Certificate as its
Holder and any other interest therein, whether direct or indirect, legal or
beneficial.
Pass-Through Rate: For each Class of Certificates, the per annum rate set
forth or calculated in the manner described in the Preliminary Statement.
Percentage Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class, the
percentage interest being set forth on its face or equal to the percentage
obtained by dividing the Denomination of the Certificate by the aggregate of the
Denominations of all Certificates of the same Class.
Permitted Investments: At any time, any of the following:
(i) obligations of the United States or any agency thereof backed by the
full faith and credit of the United States;
(ii) general obligations of or obligations guaranteed by any state of the
United States or the District of Columbia receiving the highest long-term debt
rating of each Rating Agency, or any lower rating that will not result in the
downgrading, qualification or withdrawal of the ratings then assigned to the
Certificates by the Rating Agencies, as evidenced by a signed writing delivered
by each Rating Agency;
(iii) commercial or finance company paper that is then receiving the
highest commercial or finance company paper rating of each Rating Agency, or any
lower rating that will not result in the downgrading, qualification or
withdrawal of the ratings then assigned to the Certificates by the Rating
Agencies , as evidenced by a signed writing delivered by each Rating Agency;
(iv) certificates of deposit, demand or time deposits, or bankers'
acceptances issued by any depository institution or trust company incorporated
under the laws of the United States or of any state thereof and subject to
supervision and examination by federal or state banking authorities, provided
that the commercial paper or long-term unsecured debt obligations of the
depository institution or trust company (or in the case of the principal
depository institution in a holding company system, the commercial paper or
long-term unsecured debt obligations of the holding company, but only if Xxxxx'x
is not a Rating Agency) are then rated one of the two highest long-term and the
highest short-term ratings of each Rating Agency for the securities, or any
lower rating that will not result in the downgrading, qualification or
withdrawal of the ratings then assigned to the Certificates by the Rating
Agencies, as evidenced by a signed writing delivered by each Rating Agency;
(v) demand or time deposits or certificates of deposit issued by any bank
or trust company or savings institution to the extent that the deposits are
fully insured by the FDIC;
(vi) guaranteed reinvestment agreements issued by any bank, insurance
company, or other corporation acceptable to the Rating Agencies at the time of
the issuance of the agreements, as evidenced by a signed writing delivered by
each Rating Agency;
(vii) repurchase obligations with respect to any security described in
clauses (i) and (ii) above, in either case entered into with a depository
institution or trust company (acting as principal) described in clause (iv)
above; provided that such repurchase obligation would be accounted for as a
financing arrangement under generally accepted accounting principles;
23
(viii) securities (other than stripped bonds, stripped coupons, or
instruments sold at a purchase price in excess of 115% of their face amount)
bearing interest or sold at a discount issued by any corporation incorporated
under the laws of the United States or any state thereof that, at the time of
the investment, have one of the two highest ratings of each Rating Agency
(except if the Rating Agency is Moody's the rating shall be the highest
commercial paper rating of Moody's for the securities), or any lower rating that
will not result in the downgrading, qualification or withdrawal of the ratings
then assigned to the Certificates by the Rating Agencies, as evidenced by a
signed writing delivered by each Rating Agency and that have a maturity date
occurring no more than 365 days from their date of issuance;
(ix) units of a taxable money-market portfolio having the highest rating
assigned by each Rating Agency (except (i) if Fitch is a Rating Agency and has
not rated the portfolio, the highest rating assigned by Moody's and (ii) if S&P
is a Rating Agency, "AAAm" or "AAAM-G" by S&P) and restricted to obligations
issued or guaranteed by the United States of America or entities whose
obligations are backed by the full faith and credit of the United States of
America and repurchase agreements collateralized by such obligations; and
(x) any other investments bearing interest or sold at a discount acceptable
to each Rating Agency that will not result in the downgrading, qualification or
withdrawal of the ratings then assigned to the Certificates by the Rating
Agencies, as evidenced by a signed writing delivered by each Rating Agency.
No Permitted Investment may (i) evidence the right to receive interest only
payments with respect to the obligations underlying the instrument, (ii) be sold
or disposed of before its maturity or (iii) be any obligation of the Transferor
or any of its Affiliates. Any Permitted Investment shall be relatively risk free
and no options or voting rights shall be exercised with respect to any Permitted
Investment. Any Permitted Investment shall be sold or disposed of in accordance
with Financial Accounting Standard 140, paragraph 35c(6) in effect as of the
Closing Date.
Permitted Transferee: Any person other than
(i) the United States, any State or political subdivision thereof, or any
agency or instrumentality of any of the foregoing,
(ii) a foreign government, International Organization, or any agency or
instrumentality of either of the foregoing,
(iii) an organization (except certain farmers' cooperatives described in
section 521 of the Code) that is exempt from tax imposed by Chapter 1 of the
Code (including the tax imposed by section 511 of the Code on unrelated business
taxable income) on any excess inclusions (as defined in section 860E(c)(1) of
the Code) with respect to any Residual Certificate,
(iv) a rural electric and telephone cooperatives described in section
1381(a)(2)(C) of the Code,
(v) an "electing large partnership" as defined in section 775 of the Code,
(vi) a Person that is not a U.S. Person, and
(vii) any other Person so designated by the Depositor based on an Opinion
of Counsel that the Transfer of an Ownership Interest in a Residual Certificate
to the Person may cause any REMIC to fail to qualify as a REMIC at any time that
the Certificates are outstanding.
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Person: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization, or government, or any agency or political
subdivision thereof.
Physical Certificates: As specified in the Preliminary Statement.
Planned Balance: With respect to the Planned Principal Classes in the
aggregate and any Distribution Date appearing in the aggregate Principal Balance
Schedule, the amount appearing opposite such Distribution Date for such Planned
Principal Classes.
Planned Principal Classes: As specified in the Preliminary Statement.
Pool Stated Principal Balance: The aggregate of the Stated Principal
Balances of the Mortgage Loans.
Prepayment Charge: As to a Mortgage Loan, any charge payable 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 Fund being identified in
the Prepayment Charge Schedule.
Prepayment Charge Period: As to any Mortgage Loan, the period of time
during which a Prepayment Charge may be imposed.
Prepayment Charge Schedule: As of any date, the list of Prepayment Charges
included in the Trust Fund on that date (including the prepayment charge summary
attached thereto). The Prepayment Charge Schedule shall set forth the following
information with respect to each Prepayment Charge:
o the Mortgage Loan account number;
o a code indicating the type of Prepayment Charge;
o the state of origination in which the related Mortgage Property
is located;
o the first date on which a monthly payment is or was due under the
related Mortgage Note;
o the term of the Prepayment Charge;
o the original principal amount of the related Mortgage Loan; and
o the Cut-off Date Principal Balance of the related Mortgage Loan.
The Prepayment Charge Schedule shall be amended from time to time by the
Master Servicer in accordance with this Agreement.
Prepayment Interest Excess: As to any Principal Prepayment received by the
Master Servicer on a Mortgage Loan from the first day through the fifteenth day
of any calendar month other than the month of the Cut-off Date, all amounts paid
by the related Mortgagor in respect of interest on such Principal Prepayment.
All Prepayment Interest Excess shall be retained by the Master Servicer as
additional master servicing compensation.
25
Prepayment Interest Shortfall: As to any Distribution Date, Mortgage Loan
and Principal Prepayment received on or after the sixteenth day of the month
preceding the month of such Distribution Date (or, in the case of the first
Distribution Date, on or after the Cut-off Date) and on or before the last day
of the month preceding the month of such Distribution Date, the amount, if any,
by which one month's interest at the related Mortgage Rate, net of the Servicing
Fee Rate, on such Principal Prepayment exceeds the amount of interest paid in
connection with such Principal Prepayment.
Prepayment Period: As to any Distribution Date and related Due Date, the
period from and including the 16th day of the month immediately prior to the
month of such Distribution Date (or, in the case of the first Distribution Date,
from the Cut-off Date) and to and including the 15th day of the month of such
Distribution Date.
Prepayment Shift Percentage: Not applicable.
Primary Insurance Policy: Each policy of primary mortgage guaranty
insurance or any replacement policy therefor with respect to any Mortgage Loan.
Principal Amount: As to any Distribution Date and each Loan Group, the sum
of (a) all monthly payments of principal due on each Mortgage Loan in that Loan
Group on the related Due Date, (b) the principal portion of the Purchase Price
of each Mortgage Loan in that Loan Group that was repurchased by the Transferor
pursuant to this Agreement as of such Distribution Date, (c) the Substitution
Adjustment Amount in connection with any Deleted Mortgage Loan in that Loan
Group received with respect to such Distribution Date, (d) any Insurance
Proceeds or Liquidation Proceeds allocable to recoveries of principal of
Mortgage Loans in that Loan Group that are not yet Liquidated Mortgage Loans
received during the calendar month preceding the month of such Distribution
Date, (e) with respect to each Mortgage Loan in that Loan Group that became a
Liquidated Mortgage Loan during the calendar month preceding the month of such
Distribution Date, the amount of Liquidation Proceeds allocable to principal
received with respect to such Mortgage Loan, (f) all partial and full Principal
Prepayments on the Mortgage Loans in that Loan Group received during the related
Prepayment Period, and (g) any Subsequent Recoveries with respect to the
Mortgage Loans in that Loan Group received during the calendar month preceding
the month of such Distribution Date.
Principal Only Certificates: As specified in the Preliminary Statement.
Principal Prepayment: Any payment of principal by a Mortgagor on a Mortgage
Loan that is received in advance of its scheduled Due Date and is not
accompanied by an amount representing scheduled interest due on any date in any
month after the month of prepayment. The Master Servicer shall apply partial
Principal Prepayments in accordance with the related Mortgage Note.
Principal Prepayment in Full: Any Principal Prepayment made by a Mortgagor
of the entire principal balance of a Mortgage Loan.
Principal Reductions: As defined in the Preliminary Statement.
Principal Relocation Payment: A payment from any Loan Group to REMIC 1
Regular Interests other than those of their corresponding Loan Group as provided
in the Preliminary Statement. Principal Relocation Payments shall be made of
principal allocations comprising the Principal Amount from a Loan Group.
Private Certificates: As specified in the Preliminary Statement.
26
Pro Rata Share: As to any Distribution Date and any Class of Subordinated
Certificates, the portion of the Subordinated Principal Distribution Amount
allocable to such Class, equal to the product of the Subordinated Principal
Distribution Amount on such Distribution Date and a fraction, the numerator of
which is the related Class Certificate Balance thereof and the denominator of
which is the aggregate of the Class Certificate Balances of the Subordinated
Certificates, in each case immediately prior to such Distribution Date.
Proprietary Lease: For any Cooperative Unit, a lease or occupancy agreement
between a Cooperative Corporation and a holder of related Co-op Shares.
Prospectus Supplement: The Prospectus Supplement dated November 24, 2004,
relating to the Offered Certificates.
PUD: Planned Unit Development.
Purchase and Servicing Agreement: The Master Purchase, Warranties and
Servicing Agreement, dated as of August 1, 2001, between the Seller and IndyMac
Bank, F.S.B., as amended by the Assignment Agreement.
Purchase Price: For any Mortgage Loan required to be purchased by the
Transferor pursuant to Section 2.02 or 2.03, the sum of
(i) 100% of the unpaid principal balance of the Mortgage Loan on the date
of the purchase,
(ii) accrued and unpaid interest on the Mortgage Loan at the applicable
Mortgage Rate (or at the applicable Adjusted Mortgage Rate if the purchaser is
the Transferor and the Transferor 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, net of any
unreimbursed Advances made by the Master Servicer on the Mortgage Loan, and
(iii) any costs and damages incurred by the Trust Fund in connection with
any violation by the Mortgage Loan of any predatory or abusive lending law.
Qualified Insurer: A mortgage guaranty insurance company duly qualified as
such under the laws of the state of its principal place of business and each
state having jurisdiction over the insurer in connection with the insurance
policy issued by the insurer, duly authorized and licensed in such states to
transact a mortgage guaranty insurance business in such states and to write the
insurance provided by the insurance policy issued by it, approved as a FNMA- or
FHLMC-approved mortgage insurer or having a claims paying ability rating of at
least "AA" or equivalent rating by a nationally recognized statistical rating
organization. Any replacement insurer with respect to a Mortgage Loan must have
at least as high a claims paying ability rating as the insurer it replaces had
on the Closing Date.
Rating Agency: Each of the Rating Agencies specified in the Preliminary
Statement. If any of them or a successor is no longer in existence, "Rating
Agency" shall be the nationally recognized statistical rating organization, or
other comparable Person, designated by the Depositor, notice of which
designation shall be given to the Trustee. References to a given rating or
rating category of a Rating Agency means the rating category without giving
effect to any modifiers.
Realized Loss: With respect to each Liquidated Mortgage Loan, an amount
(not less than zero or more than the Stated Principal Balance of the Mortgage
Loan) as of the date of such liquidation, equal to (i) the Stated Principal
Balance of the Liquidated Mortgage Loan as of the date of such liquidation, plus
27
(ii) interest at the Adjusted Net Mortgage Rate from the Due Date as to which
interest was last paid or advanced (and not reimbursed) to Certificateholders up
to the Due Date in the month in which Liquidation Proceeds are required to be
distributed on the Stated Principal Balance of such Liquidated Mortgage Loan
from time to time, minus (iii) the Liquidation Proceeds, if any, received during
the month in which such liquidation occurred, to the extent applied as
recoveries of interest at the Adjusted Net Mortgage Rate and to principal of the
Liquidated Mortgage Loan. With respect to each Mortgage Loan that has become the
subject of a Deficient Valuation, if the principal amount due under the related
Mortgage Note has been reduced, the difference between the principal balance of
the Mortgage Loan outstanding immediately prior to such Deficient Valuation and
the principal balance of the Mortgage Loan as reduced by the Deficient
Valuation. With respect to each Mortgage Loan which has become the subject of a
Debt Service Reduction and any Distribution Date, the amount, if any, by which
the principal portion of the related Scheduled Payment has been reduced.
To the extent the Master Servicer receives Subsequent Recoveries with
respect to any Mortgage Loan, the amount of the Realized Loss with respect to
that Mortgage Loan will be reduced by such Subsequent Recoveries.
Recognition Agreement: For any Cooperative Loan, an agreement between the
Cooperative Corporation and the originator of the Mortgage Loan that establishes
the rights of the originator in the Cooperative Property.
Record Date: With respect to any Distribution Date, the close of business
on the last Business Day of the month preceding the month of that Distribution
Date.
Reference Bank: As defined in Section 4.08.
Refinance Loan: Any Mortgage Loan the proceeds of which are used to
refinance an Original Mortgage Loan.
Regular Certificates: As specified in the Preliminary Statement.
Relief Act: The Servicemembers Civil Relief Act.
Relief Act Reductions: With respect to any Distribution Date and any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended calendar month as a result of
the application of the Relief Act, the amount, if any, by which (i) interest
collectible on such Mortgage Loan for the most recently ended calendar month is
less than (ii) interest accrued thereon for such month pursuant to the Mortgage
Note.
REMIC: A "real estate mortgage investment conduit" within the meaning of
section 860D of the Code.
REMIC 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.
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.
28
Request for Release: The Request for Release submitted by the Master
Servicer to the Trustee, substantially in the form of Exhibits M and N, as
appropriate.
Required Insurance Policy: For any Mortgage Loan, any insurance policy that
is required to be maintained from time to time under this Agreement.
Residual Certificates: As specified in the Preliminary Statement.
Responsible Officer: When used with respect to the Trustee, any Managing
Director, any Director, Vice President, any Assistant Vice President, any
Associate, any Assistant Secretary, any Trust Officer, or any other officer of
the Trustee customarily performing functions similar to those performed by any
of the above designated officers who at such time shall be officers to whom,
with respect to a particular matter, the matter is referred because of the
officer's knowledge of and familiarity with the particular subject and who has
direct responsibility for the administration of this Agreement.
Restricted Classes: As defined in Section 4.02(e).
SAIF: The Savings Association Insurance Fund, or any successor thereto.
S&P: Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc. If
S&P is designated as a Rating Agency in the Preliminary Statement, for purposes
of Section 10.05(b) the address for notices to S&P shall be Standard & Poor's, a
division of The XxXxxx-Xxxx Companies, Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Mortgage Surveillance Monitoring, or any other address that
S&P furnishes to the Depositor and the Master Servicer.
Scheduled Balance: Not applicable.
Scheduled Classes: As specified in the Preliminary Statement.
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: For any Cooperative Loan, the agreement between the
owner of the related Co-op Shares and the originator of the related Mortgage
Note that defines the security interest in the Co-op Shares and the related
Proprietary Lease.
Seller: EMC Mortgage Corporation.
Senior Certificate Group: As specified in the Preliminary Statement.
Senior Certificates: As specified in the Preliminary Statement.
Senior Credit Support Depletion Date: The date on which the Class
Certificate Balance of each Class of Subordinated Certificates has been reduced
to zero.
Senior Percentage: As to any Senior Certificate Group and Distribution
Date, the percentage equivalent of a fraction the numerator of which is the
aggregate of the Class Certificate Balances of each Class of Senior Certificates
of such Senior Certificate Group (other than the related Notional Amount
29
Certificates) immediately before the Distribution Date and the denominator of
which is the aggregate of the Stated Principal Balance of each Mortgage Loan in
the related Loan Group as of the Due Date occurring in the month prior to the
month of that Distribution Date (after giving effect to Principal Prepayments
received on the related Mortgage Loan in the Prepayment Period related to such
prior Due Date); provided, however, that on any Distribution Date after a Senior
Termination Date, the Senior Percentage for the Senior Certificates of the
remaining Senior Certificate Group is the percentage equivalent of a fraction,
the numerator of which is the aggregate of the Class Certificate Balances of
each such Class of Senior Certificates (other than the Notional Amount
Certificates) of such remaining Senior Certificate Group immediately prior to
such Distribution Date and the denominator is the aggregate of the Class
Certificate Balances of all Classes of Certificates (other than the Notional
Amount Certificates) immediately prior to such Distribution Date.
Senior Prepayment Percentage: As to a Senior Certificate Group and any
Distribution Date during the seven years beginning on the first Distribution
Date, 100%. The related Senior Prepayment Percentage for any Distribution Date
occurring on or after the seventh anniversary of the first Distribution Date
will, except as provided in this Agreement, be as follows: for any Distribution
Date in the first year thereafter, the related Senior Percentage plus 70% of the
related Subordinated Percentage for such Distribution Date; for any Distribution
Date in the second year thereafter, the related Senior Percentage plus 60% of
the related Subordinated Percentage for such Distribution Date; for any
Distribution Date in the third year thereafter, the related Senior Percentage
plus 40% of the related Subordinated Percentage for such Distribution Date; for
any Distribution Date in the fourth year thereafter, the related Senior
Percentage plus 20% of the related Subordinated Percentage for such Distribution
Date; and for any Distribution Date thereafter, the related Senior Percentage
for such Distribution Date (unless on any Distribution Date the related Senior
Percentage exceeds the initial Senior Percentage for such Senior Certificate
Group in which case such Senior Prepayment Percentage for such Distribution Date
will once again equal 100%). Notwithstanding the foregoing, no decrease in the
Senior Prepayment Percentage for a Senior Certificate Group will occur unless
both Senior Step Down Conditions are satisfied with respect to all of the
Mortgage Loans.
Notwithstanding the preceding paragraphs, if (x) on or before the
Distribution Date in November 2007, the Aggregate Subordinated Percentage is at
least 200% of the Aggregate Subordinated Percentage as of the Closing Date, the
delinquency test set forth in the definition of Senior Step Down Conditions is
satisfied and cumulative Realized Losses do not exceed 20% of the aggregate
Class Certificate Balance of the Subordinated Certificates as of the Closing
Date, the Senior Prepayment Percentage for each Loan Group will equal the
related Senior Percentage for that Distribution Date plus 50% of an amount equal
to 100% minus the related Senior Percentage for that Distribution Date and (y)
after the Distribution Date in November 2007, the Aggregate Subordinated
Percentage is at least 200% of the Aggregate Subordinated Percentage as of the
Closing Date, the delinquency test set forth in the definition of Senior Step
Down Conditions is satisfied and cumulative Realized Losses do not exceed 30% of
the aggregate Class Certificate Balance of the Subordinated Certificates as of
the Closing Date, the Senior Prepayment Percentage for each Loan Group will
equal the related Senior Percentage.
Senior Principal Distribution Amount: As to any Distribution Date and any
Loan Group, the sum of (i) the related Senior Percentage of all amounts
described in clauses (a) through (d) of the definition of Principal Amount for
that Loan Group and such Distribution Date, (ii) with respect to any Mortgage
Loan that became a Liquidated Mortgage Loan during the calendar month preceding
the month of such Distribution Date, the lesser of (x) the related Senior
Percentage of the Stated Principal Balance of such Mortgage Loan and (y) either
(A) if no Excess Losses were sustained on the Liquidated Mortgage Loan during
the previous calendar month, the related Senior Prepayment Percentage of the
amount of the Liquidation Proceeds allocable to principal received on the
Mortgage Loan or (B), if an Excess Loss was sustained with respect to such
Liquidated Mortgage Loan during such preceding calendar month, the
30
Senior Percentage of the amount of the Liquidation Proceeds allocable to
principal received with respect to such Mortgage Loan, and (iii) the sum of (x)
the Senior Prepayment Percentage of the amounts described in clause (f) of the
definition of Principal Amount for that Loan Group and such Distribution Date,
and (y) the applicable Senior Prepayment Percentage of any Subsequent Recoveries
described in clause (g) of the definition of Principal Amount for that Loan
Group for such Distribution Date; provided, however, that if a Bankruptcy Loss
that is an Excess Loss is sustained with respect to a Mortgage Loan in that Loan
Group that is not a Liquidated Mortgage Loan, the Senior Principal Distribution
Amount will be reduced on the related Distribution Date by the Senior Percentage
of the applicable principal portion of such Bankruptcy Loss; provided further,
however, on any Distribution Date after a Senior Termination Date, the Senior
Principal Distribution Amount for the remaining Senior Certificate Group will be
calculated pursuant to the above formula based on all the Mortgage Loans in the
Mortgage Pool, as opposed to the Mortgage Loans in the related Loan Group.
Senior Step Down Conditions: As to any Distribution Date: (i) the aggregate
Stated Principal Balance of all the Mortgage Loans 60 days or more Delinquent
(averaged over the preceding six month period) (including any Mortgage Loans
subject to foreclosure proceedings, REO Property (regardless of whether that
Mortgage Loan is 60 days or more Delinquent) and Mortgage Loans the mortgagers
of which are in bankruptcy), as a percentage (a) if such date is on or prior to
a Senior Termination Date, the Subordinated Percentage for that Loan Group of
the aggregate Stated Principal Balance of the Mortgage Loans in that Loan Group
or (b) if such date is after a Senior Termination Date, the aggregate of the
Class Certificate Balances of the Subordinated Certificates immediately prior to
such Distribution Date does not equal or exceed 50%, and (ii) cumulative
Realized Losses do not exceed: (a) for the Distribution Date on the seventh
anniversary of the first Distribution Date, 30% of the Original Subordinated
Principal Balance, (b) for the Distribution Date on the eighth anniversary of
the first Distribution Date, 35% of the Original Subordinated Principal Balance,
(c) for the Distribution Date on the ninth anniversary of the first Distribution
Date, 40% of the Original Subordinated Principal Balance, (d) for the
Distribution Date on the tenth anniversary of the first Distribution Date, 45%
of the Original Subordinated Principal Balance, and (e) for the Distribution
Date on the eleventh anniversary of the first Distribution Date and thereafter,
50% of the Original Subordinated Principal Balance.
Senior Termination Date: For each Senior Certificate Group, the
Distribution Date on which the aggregate Class Certificate Balance of the
related Classes of Senior Certificates has been reduced to zero.
Servicing Account: The separate Eligible Account or Accounts created and
maintained pursuant to Section 3.06(b).
Servicing Advances: All customary, reasonable, and necessary "out of
pocket" costs and expenses incurred in the performance by the Master Servicer of
its servicing obligations, including the cost of
(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 maintenance and liquidation of any REO Property, and
(d) compliance with the obligations under Section 3.10; and
(e) 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
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default management and other similar services (including appraisal
services) in connection with the servicing of defaulted Mortgage Loans. For
purposes of this clause (e), only costs and expenses incurred in connection
with the performance of activities generally considered to be outside the
scope of customary servicing or master servicing duties shall be treated as
Servicing Advances.
Servicing Fee: As to each Mortgage Loan and any Distribution Date, one
month's interest at the applicable Servicing Fee Rate on the Stated Principal
Balance of the Mortgage Loan, or, whenever a payment of interest accompanies a
Principal Prepayment in Full made by the Mortgagor, interest at the Servicing
Fee Rate on the Stated Principal Balance of the Mortgage Loan for the period
covered by the payment of interest, subject to reduction as provided in Section
3.15.
Servicing Fee Rate: For each Mortgage Loan, the per annum rate specified on
the Mortgage Loan Schedule.
Servicing Officer: Any officer of the Master Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and facsimile signature appear on a list of servicing officers furnished to
the Trustee by the Master Servicer on the Closing Date pursuant to this
Agreement, as the list may from time to time be amended.
Servicing Standard: That degree of skill and care exercised by the Master
Servicer with respect to mortgage loans comparable to the Mortgage Loans
serviced by the Master Servicer for itself or others.
Six-Month LIBOR Index: The average of the London interbank offered rates
for six month U.S. dollar deposits in the London market, generally as set forth
in either The Wall Street Journal or some other source generally accepted in the
residential mortgage loan origination business and specified in the related
Mortgage Note or, if such rate ceases to be published in The Wall Street Journal
or becomes unavailable for any reason, then based upon a new index selected by
the Master Servicer, based on comparable information, in each case, as most
recently announced as of either 45 days prior to, or the first Business Day of
the month immediately preceding the month of, such Adjustment Date.
Special Hazard Coverage Termination Date: The point in time at which the
Special Hazard Loss Coverage Amount is reduced to zero.
Special Hazard Loss: Any Realized Loss suffered by a Mortgaged Property on
account of direct physical loss, but not including (i) any loss of a type
covered by a hazard insurance policy or a flood insurance policy required to be
maintained with respect to such Mortgaged Property pursuant to Section 3.10 to
the extent of the amount of such loss covered thereby, or (ii) any loss caused
by or resulting from:
(a) normal wear and tear;
(b) fraud, conversion or other dishonest act on the part of the
Trustee, the Master Servicer or any of their agents or employees (without
regard to any portion of the loss not covered by any errors and omissions
policy);
(c) errors in design, faulty workmanship or faulty materials, unless
the collapse of the property or a part thereof ensues and then only for the
ensuing loss;
(d) nuclear or chemical reaction or nuclear radiation or radioactive
or chemical contamination, all whether controlled or uncontrolled, and
whether such loss be direct or indirect,
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proximate or remote or be in whole or in part caused by, contributed to or
aggravated by a peril covered by the definition of the term "Special Hazard
Loss";
(e) hostile or warlike action in time of peace and war, including
action in hindering, combating or defending against an actual, impending or
expected attack:
1. by any government or sovereign power, de jure or de facto, or
by any authority maintaining or using military, naval or air forces;
or
2. by military, naval or air forces; or
3. by an agent of any such government, power, authority or
forces;
(f) any weapon of war employing nuclear fission, fusion or other
radioactive force, whether in time of peace or war; or
(g) insurrection, rebellion, revolution, civil war, usurped power or
action taken by governmental authority in hindering, combating or defending
against such an occurrence, seizure or destruction under quarantine or
customs regulations, confiscation by order of any government or public
authority, or risks of contraband or illegal transportation or trade.
Special Hazard Loss Coverage Amount: With respect to the first Distribution
Date, $4,639,626. With respect to any Distribution Date after the first
Distribution Date, the lesser of (a) the greatest of (i) 1% of the aggregate of
the principal balances of the Mortgage Loans, (ii) twice the principal balance
of the largest Mortgage Loan and (iii) the aggregate of the principal balances
of all Mortgage Loans secured by Mortgaged Properties located in the single
California postal zip code area having the highest aggregate principal balance
of any such zip code area and (b) the Special Hazard Loss Coverage Amount as of
the Closing Date less the amount, if any, of Special Hazard Losses allocated to
the Certificates since the Closing Date. All principal balances for the purpose
of this definition will be calculated as of the first day of the calendar month
preceding the month of such Distribution Date after giving effect to Scheduled
Payments on the Mortgage Loans then due, whether or not paid.
Special Hazard Mortgage Loan: A Liquidated Mortgage Loan as to which a
Special Hazard Loss has occurred.
Startup Day: The Closing Date.
Stated Principal Balance: As to any Mortgage Loan and Due Date, the unpaid
principal balance of such Mortgage Loan as of such Due Date, as specified in the
amortization schedule at the time relating thereto (before any adjustment to
such amortization schedule by reason of any moratorium or similar waiver or
grace period) after giving effect to the sum of: (i) the payment of principal
due on such Due Date and irrespective of any delinquency in payment by the
related Mortgagor and (ii) any Principal Prepayments received in the related
Prepayment Period and Liquidation Proceeds allocable to principal received in
the prior calendar month, in each case, with respect to that Mortgage Loan.
Subordinate Pass-Through Rate: As to any Class of Subordinated Certificates
and the Interest Accrual Period for any Distribution Date, a per annum rate
equal to (a) the sum of the following for each Loan Group: the product of (x)
the Assumed Balance for each Loan Group immediately prior to that Distribution
Date and (y) the Weighted Average Adjusted Net Mortgage Rate of the Mortgage
Loans in
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that Loan Group divided by (b) the aggregate Class Certificate Balance of the
Subordinated Certificates immediately prior to that Distribution Date.
Subordinated Certificates: As specified in the Preliminary Statement.
Subordinated Percentage: As to any Distribution Date on or prior to a
Senior Termination Date and any Loan Group, 100% minus the Senior Percentage for
the Senior Certificate Group relating to such Loan Group for such Distribution
Date. As to any Distribution Date after a Senior Termination Date, 100% minus
the Senior Percentage for such Distribution Date.
Subordinated Prepayment Percentage: As to any Distribution Date and Loan
Group, 100% minus the related Senior Prepayment Percentage for such Distribution
Date.
Subordinated Principal Distribution Amount: As to any Distribution Date and
Loan Group, the sum of the following with respect to each Loan Group: (i) the
Subordinated Percentage of all amounts described in clauses (a) through (d) of
the definition of Principal Amount with respect to such Loan Group and such
Distribution Date, (ii) with respect to any Mortgage Loan in the related Loan
Group that became a Liquidated Mortgage Loan during the calendar month preceding
the month of such Distribution Date, the amount of Liquidation Proceeds
allocable to principal received with respect thereto remaining after application
thereof pursuant to clause (ii) of the definition of Senior Principal
Distribution Amount for that Loan Group, up to the Subordinated Percentage for
such Loan Group of the Stated Principal Balance of such Mortgage Loan, (iii) the
sum of the Subordinated Prepayment Percentage of the amounts described in
clauses (f) and (g) of the definition of Principal Amount with respect to that
Loan Group for such Distribution Date; provided, however, that on any
Distribution Date after a Senior Termination Date, the Subordinated Principal
Distribution Amount will not be calculated by Loan Group but will equal the
amount calculated pursuant to the formula set forth above based on the
applicable Subordinated Percentage and Subordinated Prepayment Percentage for
the Subordinated Certificates for such Distribution Date with respect to all of
the Mortgage Loans as opposed to the Mortgage Loans only in the related Loan
Group.
Subsequent Recoveries: As to any Distribution Date, with respect to a
Liquidated Mortgage Loan that resulted in a Realized Loss in a prior calendar
month, unexpected amounts received by the Master Servicer (net of any related
expenses permitted to be reimbursed pursuant to Section 3.09) specifically
related to such Liquidated Mortgage Loan.
Subservicer: As defined in Section 3.02(a).
Substitute Mortgage Loan: A Mortgage Loan substituted by the Transferor for
a Deleted Mortgage Loan that must, on the date of substitution, as confirmed in
a Request for Release, substantially in the form of Exhibit M,
(i) have a Stated Principal Balance, after deduction of the principal
portion of the Scheduled Payment due in the month of substitution, not in excess
of, and not more than 10% less than, the Stated Principal Balance of the Deleted
Mortgage Loan (unless the amount of any shortfall is deposited by the Transferor
in the Certificate Account and held for distribution to the Certificateholders
on the related Distribution Date);
(ii) have a Mortgage Rate no lower than and not more than 1% per annum
higher than the Deleted Mortgage Loan;
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(iii) have a Maximum Mortgage Rate not more than 1% per annum higher than
and not lower than the Maximum Mortgage Rate of the deleted Mortgage Loan;
(iv) have the same Mortgage Index and interval between Adjustment Dates
as the deleted Mortgage Loan and a Gross Margin not more than 1% per annum
higher than, and not lower than that of the deleted Mortgage Loan;
(vi) have a Loan-to-Value Ratio no higher than that of the Deleted
Mortgage Loan;
(vii) have a remaining term to maturity no greater than (and not more than
one year less than) that of the Deleted Mortgage Loan;
(viii) not be a Cooperative Loan unless the Deleted Mortgage Loan was a
Cooperative Loan; and
(ix) comply with each representation and warranty in Section 2.03.
Substitution Adjustment Amount: As defined in Section 2.03.
Targeted Balance: With respect to the Targeted Principal Classes and any
Distribution Date appearing in the Principal Balance Schedules, the applicable
amount appearing opposite such Distribution Date for such Targeted Principal
Classes.
Targeted Principal Classes: As specified in the Preliminary Statement.
Transfer: Any direct or indirect transfer or sale of any Ownership Interest
in a Residual Certificate.
Transfer Payment Made: As defined in Section 4.03.
Transfer Payment Received: As defined in Section 4.03.
Transferor: IndyMac Bank, F.S.B., a federal savings bank, and its
successors and assigns, in its capacity as transferor of the Mortgage Loans to
the Seller.
Trust Fund: The corpus of the trust created under this Agreement consisting
of
(i) the Mortgage Loans and all interest and principal received on them
after the Cut-off Date, other than amounts due on the Mortgage Loans by the
Cut-off Date;
(ii) the Certificate Account, the Distribution Account and all amounts
deposited therein pursuant to this Agreement (including amounts received from
the Transferor and Depositor on the Closing Date that will be deposited by the
Trustee in the Certificate Account pursuant to Section 2.01);
(iii) property that secured a Mortgage Loan and has been acquired by
foreclosure, deed-in-lieu of foreclosure, or otherwise;
(iv) the right to collect any amounts under any mortgage insurance policies
covering any Mortgage Loan and any collections received under any mortgage
insurance policies covering any Mortgage Loan;
(v) the Depositor's rights under the Purchase and Servicing Agreement; and
35
(vi) all proceeds of the conversion, voluntary or involuntary, of any of the
foregoing.
Trustee: Deutsche Bank National Trust Company and its successors and, if a
successor trustee is appointed under this Agreement, the successor.
Trustee Fee: The fee payable to the Trustee on each Distribution Date for
its services as Trustee hereunder, in an amount equal to one-twelfth of the
Trustee Fee Rate multiplied by the aggregate Stated Principal Balance of the
Mortgage Loans immediately prior to such Distribution Date.
Trustee Fee Rate: 0.0085% per annum.
The terms "United States," "State," and "International Organization" have
the meanings in section 7701 of the Code or successor provisions. A corporation
will not be treated as an instrumentality of the United States or of any State
or political subdivision thereof for these purposes if all of its activities are
subject to tax and, with the exception of the Federal Home Loan Mortgage
Corporation, a majority of its board of directors is not selected by such
government unit.
UCC: The Uniform Commercial Code for the State of New York.
Undercollateralized Group: As defined in Section 4.03.
Underwriter's Exemption: Prohibited Transaction Exemption 2002-41, 67 Fed.
Reg. 54487 (2002) (or any successor thereto), or any substantially similar
administrative exemption granted by the U.S. Department of Labor
United States Person or U.S. Person:
(i) A citizen or resident of the United States;
(ii) a corporation (or entity treated as a corporation for tax purposes)
created or organized in the United States or under the laws of the United States
or of any state thereof, including, for this purpose, the District of Columbia;
(iii) a partnership (or entity treated as a partnership for tax purposes)
organized in the United States or under the laws of the United States or of any
state thereof, including, for this purpose, the District of Columbia (unless
provided otherwise by future Treasury regulations);
(iv) an estate whose income is includible in gross income for United States
income tax purposes regardless of its source; or
(v) a trust, if a court within the United States is able to exercise
primary supervision over the administration of the trust and one or more U.S.
Persons have authority to control all substantial decisions of the trust.
Notwithstanding the last clause of the preceding sentence, to the extent
provided in Treasury regulations, certain trusts in existence on August 20,
1996, and treated as U.S. Persons before that date, may elect to continue to be
U.S. Persons.
U.S.A. Patriot Act: The Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.
Voting Rights: The portion of the voting rights of all of the Certificates
that is allocated to any Certificate. As of any date of determination, (a) 1% of
all Voting Rights shall be allocated to each Class
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of Notional Amount Certificates (the Voting Rights to be allocated among the
holders of Certificates of each Class in accordance with their respective
Percentage Interests), (b) 1% of all Voting Rights shall be allocated to the
Holder of the Class A-R Certificates and (c) the remaining Voting Rights shall
be allocated among Holders of the remaining Classes of Offered Certificates in
proportion to the Certificate Balances of the respective Certificates on the
date. The Class P Certificates shall have no voting rights.
Weighted Average Adjusted Net Mortgage Rate: For any Distribution Date and
Loan Group, the average of the Adjusted Net Mortgage Rate of each Mortgage Loan
in that Loan Group, weighted on the basis of its Stated Principal Balance as of
the Due Date in the prior month (after giving effect to Principal Prepayments in
the Prepayment Period related to such prior Due Date).
Weighted Average Initial Adjustment Date: For Loan Group 1 and Loan Group
2, the Distribution Date in October 2007 and October 2009, respectively.
Withdrawal Date: The 18th day of each month, or if such day is not a
Business Day, the next preceding Business Day.
Section 1.02 Rules of Construction.
Except as otherwise expressly provided in this Agreement or unless the
context clearly requires otherwise
(a) References to designated articles, sections, subsections, exhibits, and
other subdivisions of this Agreement, such as "Section 6.12 (a)," refer to the
designated article, section, subsection, exhibit, or other subdivision of this
Agreement as a whole and to all subdivisions of the designated article, section,
subsection, exhibit, or other subdivision. The words "herein," "hereof,"
"hereto," "hereunder," and other words of similar import refer to this Agreement
as a whole and not to any particular article, section, exhibit, or other
subdivision of this Agreement.
(b) Any term that relates to a document or a statute, rule, or regulation
includes any amendments, modifications, supplements, or any other changes that
may have occurred since the document, statute, rule, or regulation came into
being, including changes that occur after the date of this Agreement.
(c) Any party may execute any of the requirements under this Agreement
either directly or through others, and the right to cause something to be done
rather than doing it directly shall be implicit in every requirement under this
Agreement. Unless a provision is restricted as to time or limited as to
frequency, all provisions under this Agreement are implicitly available and
things may happen from time to time.
(d) The term "including" and all its variations mean "including but not
limited to." Except when used in conjunction with the word "either," the word
"or" is always used inclusively (for example, the phrase "A or B" means "A or B
or both," not "either A or B but not both").
(e) A reference to "a [thing]" or "any [of a thing]" does not imply the
existence or occurrence of the thing referred to even though not followed by "if
any," and "any [of a thing]" is any of it. A reference to the plural of anything
as to which there could be either one or more than one does not imply the
existence of more than one (for instance, the phrase "the obligors on a note"
means "the obligor or obligors on a note"). "Until [something occurs]" does not
imply that it must occur, and will not be modified by the word "unless." The
word "due" and the word "payable" are each used in the sense that the stated
time for payment has passed. The word "accrued" is used in its accounting sense,
i.e., an amount paid is no longer accrued. In the calculation of amounts of
things, differences and sums may
37
generally result in negative numbers, but when the calculation of the excess of
one thing over another results in zero or a negative number, the calculation is
disregarded and an "excess" does not exist. Portions of things may be expressed
as fractions or percentages interchangeably.
(f) All accounting terms used in an accounting context and not otherwise
defined, and accounting terms partly defined in this Agreement, to the extent
not completely defined, shall be construed in accordance with generally accepted
accounting principles. To the extent that the definitions of accounting terms in
this Agreement are inconsistent with their meanings under generally accepted
accounting principles, the definitions contained in this Agreement shall
control. Capitalized terms used in this Agreement without definition that are
defined in the Uniform Commercial Code are used in this Agreement as defined in
the Uniform Commercial Code.
(g) In the computation of a period of time from a specified date to a later
specified date or an open-ended period, the words "from" and "beginning" mean
"from and including," the word "after" means "from but excluding," the words
"to" and "until" mean "to but excluding," and the word "through" means "to and
including." Likewise, in setting deadlines or other periods, "by" means "by."
The words "preceding," "following," and words of similar import, mean
immediately preceding or following. References to a month or a year refer to
calendar months and calendar years.
(h) Any reference to the enforceability of any agreement against a party
means that it is enforceable, subject as to enforcement against the party, to
applicable bankruptcy, insolvency, reorganization, and other similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles.
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ARTICLE TWO
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans.
(a) [Reserved].
(b) The Depositor, concurrently with the execution and delivery of this
Agreement, hereby transfers to the Trustee for the benefit of the
Certificateholders, without recourse, all the interest of the Depositor in the
Trust Fund, together with the Depositor's right to require the Transferor to
cure any breach of a representation or warranty made in this Agreement by the
Transferor or to repurchase or substitute for any affected Mortgage Loan in
accordance with this Agreement. With respect to any Mortgage Loan that does not
have a first payment date on or before the Due Date in the month of the first
Distribution Date, the Transferor shall deposit into the Distribution Account on
the first Distribution Account Deposit Date an amount equal to one month's
interest at the related Adjusted Mortgage Rate on the Cut-off Date Principal
Balance of such Mortgage Loan. If the Transferor shall fail to deposit such
amount by the first Distribution Account Deposit Date, the Trustee shall deposit
such amount. Also on the Closing Date the Depositor shall deposit $100 into the
Certificate Account.
(c) In connection with the transfer and assignment of each Mortgage Loan,
the Depositor has delivered (or, in the case of the Delay Delivery Mortgage
Loans, will deliver to the Trustee within the time periods specified in the
definition of Delay Delivery Mortgage Loans), for the benefit of the
Certificateholders the following documents or instruments with respect to each
Mortgage Loan so assigned:
(i) The original Mortgage Note, endorsed by manual or facsimile
signature in blank in the following form: "Pay to the order of
_______________ ______________without recourse," with all intervening
endorsements showing a complete chain of endorsement from the originator to
the Person endorsing the Mortgage Note (each endorsement being sufficient
to transfer all interest of the party so endorsing, as noteholder or
assignee thereof, in that Mortgage Note) or a lost note affidavit for any
Lost Mortgage Note from the Transferor stating that the original Mortgage
Note was lost or destroyed, together with a copy of the Mortgage Note.
(ii) except as provided below and for each Mortgage Loan that is not a
MERS Mortgage Loan, the original recorded Mortgage or a copy of such
Mortgage certified by the Transferor as being a true and complete copy of
the Mortgage (or, in the case of a Mortgage for which the related Mortgaged
Property is located in the Commonwealth of Puerto Rico, a true copy of the
Mortgage certified as such by the applicable notary) and in the case of
each MERS Mortgage Loan, the original Mortgage, noting the presence of the
MIN of the Mortgage Loans and either language indicating that the Mortgage
Loan is a MOM Loan if the Mortgage Loan is a MOM Loan or if the Mortgage
Loan was not a MOM Loan at origination, the original Mortgage and the
assignment thereof to MERS, with evidence of recording indicated thereon,
or a copy of the Mortgage certified by the public recording office in which
such Mortgage has been recorded;
(iii) in the case of each Mortgage Loan that is not a MERS Mortgage
Loan, a duly executed assignment of the Mortgage (which may be included in
a blanket assignment or assignments), together with, except as provided
below, all interim recorded assignments of 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
39
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 Mortgaged Property is located in the
Commonwealth of Puerto Rico;
(iv) Except as provided below, the original recorded Mortgage or a
copy of the Mortgage certified by the Transferor (or, in the case of a
Mortgage for which the related Mortgaged Property is located in the
Commonwealth of Puerto Rico, a true copy of the Mortgage certified as such
by the applicable notary) as being a true and complete copy of the
Mortgage.
(v) A duly executed assignment of the Mortgage (which may be included
in a blanket assignment or assignments), together with, except as provided
below, all interim recorded assignments of the mortgage (each assignment,
when duly and validly completed, to be in recordable form and sufficient to
effect the assignment of and transfer to its assignee of the Mortgage to
which the assignment relates). If the related Mortgage has not been
returned from the applicable public recording office, the assignment of the
Mortgage may exclude the information to be provided by the recording
office. The assignment of Mortgage need not be delivered in the case of a
Mortgage for which the related Mortgage Property is located in the
Commonwealth of Puerto Rico.
(vi) The original or copies of each assumption, modification, written
assurance, or substitution agreement.
(vii) Except as provided below, the original or duplicate original
lender's title policy and all its riders.
(viii) The originals of the following documents for each Cooperative
Loan:
(A) the Co-op Shares, together with a stock power in blank;
(B) the executed Security Agreement;
(C) the executed Proprietary Lease;
(D) the executed Recognition Agreement;
(E) the executed UCC-1 financing statement that has been filed
in all places required to perfect the Transferor's interest
in the Co-op Shares and the Proprietary Lease with evidence
of recording on it; and
(F) executed UCC-3 financing statements or other appropriate UCC
financing statements required by state law, evidencing a
complete and unbroken line from the mortgagee to the Trustee
with evidence of recording thereon (or in a form suitable
for recordation). If in connection with any Mortgage Loan
the Depositor cannot deliver
(a) the original recorded Mortgage,
(b) all interim recorded assignments, or
(c) the lender's title policy (together with all its
riders).
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In addition, in connection with the assignment of any MERS Mortgage Loan,
the Transferor agrees that it will cause, at the Transferor's expense, the
MERS(R) System to indicate that the Mortgage Loans have been assigned by the
Transferor to the Trustee in accordance with this Agreement for the benefit of
the Certificateholders by including (or deleting, in the case of Mortgage Loans
that are repurchased in accordance with this Agreement) in such computer files
the information required by the MERS(R) System to identify the series of the
Certificates issued in connection with such Mortgage Loans. The Transferor
further agrees that it will not, and will not permit the Master Servicer to, and
the Master Servicer agrees that it will not, alter the information referenced in
this paragraph with respect to any Mortgage Loan transferred to the Depositor
during the term of this Agreement unless and until such Mortgage Loan is
repurchased in accordance with the terms of this Agreement.
In the event that in connection with any Mortgage Loan that is not a MERS
Mortgage Loan the Depositor cannot deliver (a) the original recorded Mortgage,
(b) all interim recorded assignments or (c) the lender's title policy (together
with all riders thereto) satisfying the requirements of clause (ii), (iii) or
(v) above, respectively, concurrently with the execution and delivery of this
Agreement because such document or documents have not been returned from the
applicable public recording office in the case of clause (ii) or (iii) above, or
because the title policy has not been delivered to either the Master Servicer or
the Depositor by the applicable title insurer in the case of clause (v) above,
then the Depositor shall promptly deliver to the Trustee, in the case of clause
(ii) or (iii) above, the original Mortgage or the interim assignment, as the
case may be, with evidence of recording indicated on when it is received from
the public recording office, or a copy of it, certified, if appropriate, by the
relevant recording office and in the case of clause (v) alone, the original or a
copy of a written commitment or interim binder or preliminary report of title
issued by the title insurance or escrow company, with the original or duplicate
copy thereof to be delivered to the Trustee upon receipt thereof. The delivery
of the original Mortgage Loan and each interim assignment or a copy of them,
certified, if appropriate, by the relevant recording office, shall not be made
later than one year following the Closing Date, or, in the case of clause (v)
above, later than 120 days following the Closing Date. If the Depositor is
unable to deliver each Mortgage by that date and each interim assignment because
any documents have not been returned by the appropriate recording office, or, in
the case of each interim assignment, because the related Mortgage has not been
returned by the appropriate recording office, the Depositor shall deliver the
documents to the Trustee as promptly as possible upon their receipt and, in any
event, within 720 days following the Closing Date.
The Depositor shall forward to the Trustee (a) from time to time additional
original documents evidencing an assumption or modification of a Mortgage Loan
and (b) any other documents required to be delivered by the Depositor or the
Master Servicer to the Trustee. If the original Mortgage is not delivered and in
connection with the payment in full of the related Mortgage Loan the public
recording office requires the presentation of a "lost instruments affidavit and
indemnity" or any equivalent document, because only a copy of the Mortgage can
be delivered with the instrument of satisfaction or reconveyance, the Master
Servicer shall execute and deliver the required document to the public recording
office. If a public recording office retains the original recorded Mortgage or
if a Mortgage is lost after recordation in a public recording office, the
Transferor shall deliver to the Trustee a copy of the Mortgage certified by the
public recording office to be a true and complete copy of the original recorded
Mortgage.
As promptly as practicable after any transfer of a Mortgage Loan under this
Agreement, and in any event within thirty days after the transfer, the Trustee
shall (i) affix the Trustee's name to each assignment of Mortgage, as its
assignee, and (ii) cause to be delivered for recording in the appropriate public
office for real property records the assignments of the Mortgages to the
Trustee, except that, if the Trustee has not received the information required
to deliver any assignment of a Mortgage for recording,
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the Trustee shall deliver it as soon as practicable after receipt of the needed
information and in any event within thirty days.
The Trustee need not record any assignment that relates to a Mortgage Loan
(a) the Mortgaged Property and Mortgage File relating to which are located in
California or (b) in any other jurisdiction (including Puerto Rico) under the
laws of which, as evidenced by an Opinion of Counsel delivered by the Transferor
(at the Transferor's expense) to the Trustee, recording the assignment is not
necessary to protect the Trustee's and the Certificateholders' interest in the
related Mortgage Loan. The Transferor shall deliver such Opinion of Counsel
within 90 days of the Closing Date.
If any Mortgage Loans have been prepaid in full as of the Closing Date, the
Depositor, in lieu of delivering the above documents to the Trustee, will
deposit in the Certificate Account the portion of the prepayment that is
required to be deposited in the Certificate Account pursuant to Section 3.06.
Notwithstanding anything to the contrary in this Agreement, within five
Business Days after the Closing Date, the Transferor shall either
(x) deliver to the Trustee the Mortgage File as required pursuant to
this Section 2.01 for each Delay Delivery Mortgage Loan or
(y) (A) repurchase the Delay Delivery Mortgage Loan or (B) substitute
the Substitute Mortgage Loan for a Delay Delivery Mortgage Loan, which
repurchase or substitution shall be accomplished in the manner and
subject to the conditions in Section 2.03 (treating each such Delay
Delivery Mortgage Loan as a Deleted Mortgage Loan for purposes of such
Section 2.03);
provided, however, that if the Transferor fails to deliver a Mortgage File for
any Delay Delivery Mortgage Loan within the period specified herein, Transferor
shall use its best reasonable efforts to effect a substitution, rather than a
repurchase of, such Deleted Mortgage Loan and provided further that the cure
period provided for in Section 2.02 or in Section 2.03 shall not apply to the
initial delivery of the Mortgage File for such Delay Delivery Mortgage Loan, but
rather Transferor shall have five (5) Business Days to cure such failure to
deliver. At the end of such period, the Trustee shall send a Delay Delivery
Certification for the Delay Delivery Mortgage Loans delivered during such period
in accordance with the provisions of Section 2.02.
(d) The Transferor agrees to treat the transfer of the Mortgage Loans to
the Seller as a sale for all tax, accounting, and regulatory purposes.
Section 2.02 Acceptance by the Trustee of the Mortgage Loans.
The Trustee acknowledges receipt of the documents identified in the Initial
Certification in the form of Exhibit G, and declares that it holds and will hold
such documents and the other documents delivered to it constituting the Mortgage
Files for the Mortgage Loans, and that it holds or will hold such other assets
as are included in the Trust Fund, in trust for the exclusive use and benefit of
all present and future Certificateholders.
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 Transferor an Initial
Certification in the form of Exhibit G. Based on its review and examination, and
only as to the documents identified in such Initial Certification, the Trustee
acknowledges that such documents appear
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regular on their face and relate to such Mortgage Loans. The Trustee shall be
under no duty or obligation to inspect, review or examine said documents,
instruments, certificates or other papers to determine that the same are
genuine, enforceable or appropriate for the represented purpose or that they
have actually been recorded in the real estate records or that they are other
than what they purport to be on their face.
By the thirtieth day after the Closing Date (or if that day is not a
Business Day, the succeeding Business Day), the Trustee shall deliver to the
Depositor, the Master Servicer and the Transferor a Delay Delivery Certification
with respect to the Mortgage Loans substantially in the form of Exhibit G-1,
with any applicable exceptions noted thereon.
By the ninetieth day after the Closing Date (or if that day is not a
Business Day, the succeeding Business Day), the Trustee shall deliver to the
Depositor, the Master Servicer and the Transferor a Final Certification with
respect to the Mortgage Loans in the form of Exhibit H, with any applicable
exceptions noted thereon.
If, in the course of its review, the Trustee finds any document
constituting a part of a Mortgage File that does not meet the requirements of
Section 2.01, the Trustee shall list such as an exception in the Final
Certification. The Trustee shall not make any determination as to whether (i)
any endorsement is sufficient to transfer all interest of the party so
endorsing, as noteholder or assignee thereof, in that Mortgage Note or (ii) any
assignment is in recordable form or is sufficient to effect the assignment of
and transfer to the assignee thereof under the mortgage to which the assignment
relates. The Transferor shall promptly correct any defect that materially and
adversely affects the interests of the Certificateholders within 90 days from
the date it was so notified of the defect and, if the Transferor does not
correct the defect within that period, the Transferor shall either (a)
substitute for the related Mortgage Loan a Substitute Mortgage Loan, which
substitution shall be accomplished in the pursuant Section 2.03, or (b) purchase
the Mortgage Loan at its Purchase Price from the Trustee within 90 days from the
date the Transferor was notified of the defect in writing.
If a substitution or purchase of a Mortgage Loan pursuant to this provision
is required because of a delay in delivery of any documents by the appropriate
recording office, or there is a dispute between either the Master Servicer or
the Transferor and the Trustee over the location or status of the recorded
document, then the substitution or purchase shall occur within 720 days from the
Closing Date. In no other case may a substitution or purchase occur more than
540 days from the Closing Date.
The Trustee shall deliver written notice to each Rating Agency within 270
days from the Closing Date indicating each Mortgage Loan (a) that has not been
returned by the appropriate recording office or (b) as to which there is a
dispute as to location or status of the Mortgage Loan. The notice shall be
delivered every 90 days thereafter until the related Mortgage Loan is returned
to the Trustee. Any substitution pursuant to (a) above or purchase pursuant to
(b) above shall not be effected before the delivery to the Trustee of the
Opinion of Counsel required by Section 2.05, and any substitution pursuant to
(a) above shall not be effected before the additional delivery to the Trustee of
a Request for Release substantially in the form of Exhibit N. No substitution is
permitted to be made in any calendar month after the Determination Date for the
month.
The Purchase Price for any Mortgage Loan shall be deposited by the
Transferor in the Certificate Account by the Distribution Account Deposit Date
for the Distribution Date in the month following the month of repurchase and,
upon receipt of the deposit and certification with respect thereto in the form
of Exhibit O, the Trustee shall release the related Mortgage File to the
Transferor and shall execute and deliver at the Transferor's request any
instruments of transfer or assignment prepared by the Transferor, in each case
without recourse, necessary to vest in the Transferor, or a designee, the
Trustee's interest in any Mortgage Loan released pursuant hereto.
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If pursuant to the foregoing provisions the Transferor repurchases a
Mortgage Loan that is a MERS Mortgage Loan, the Master Servicer shall either (i)
cause MERS to execute and deliver an assignment of the Mortgage in recordable
form to transfer the Mortgage from MERS to the Transferor and shall cause such
Mortgage to be removed from registration on the MERS(R) System in accordance
with MERS' rules and regulations or (ii) cause MERS to designate on the MERS(R)
System the Transferor as the beneficial holder of such Mortgage Loan.
The Trustee shall retain possession and custody of each Mortgage File in
accordance with and subject to the terms and conditions set forth herein. The
Master Servicer shall promptly deliver to the Trustee, upon the execution or
receipt thereof, the originals of any other documents or instruments
constituting the Mortgage File that come into the possession of the Master
Servicer from time to time.
The obligation of the Transferor to substitute for or to purchase any
Mortgage Loan that does not meet the requirements of Section 2.01 shall
constitute the sole remedy respecting the defect available to the Trustee, the
Depositor, and any Certificateholder against the Transferor.
Upon execution of this Agreement, the Depositor hereby delivers to the
Trustee, and the Trustee acknowledges receipt of, the Assignment Agreement,
together with the Purchase and Servicing Agreement.
Section 2.03 Representations, Warranties, and Covenants of the Transferor,
the Master Servicer and the Depositor.
(a) IndyMac, in its capacities as Transferor and Master Servicer, makes the
representations and warranties in Schedule II, and by this reference
incorporated in this Agreement, to the Depositor and the Trustee, as of the
Closing Date.
(b) The Transferor, makes the representations and warranties in Schedule
III, and by this reference incorporated in this Agreement, to the Depositor and
the Trustee, as of the Closing Date, or if so specified in Schedule III, as of
the Cut-off Date.
(c) Upon discovery by any of the parties hereto of a breach of a
representation or warranty made pursuant to Section 2.03(b) that materially and
adversely affects the interests of the Certificateholders in any Mortgage Loan,
the party discovering such breach shall give prompt notice thereof to the other
parties. The Transferor covenants that within 90 days of the earlier of its
discovery or its receipt of written notice from any party of a breach of any
representation or warranty made pursuant to Section 2.03(b) that materially and
adversely affects the interests of the Certificateholders in any Mortgage Loan,
it shall cure such breach in all material respects, and if such breach is not so
cured, shall, (i) if the 90-day period expires before the second anniversary of
the Closing Date, remove the Mortgage Loan (a "Deleted Mortgage Loan") from the
Trust Fund and substitute in its place a Substitute Mortgage Loan, in accordance
with this Section 2.03; or (ii) repurchase the affected Mortgage Loan or
Mortgage Loans from the Trustee at the Purchase Price in the manner set forth
below. Any substitution pursuant to (i) above shall not be effected before the
delivery to the Trustee of the Opinion of Counsel required by Section 2.05 and a
Request for Release substantially in the form of Exhibit N, and the Mortgage
File for any Substitute Mortgage Loan. The Transferor shall promptly reimburse
the Master Servicer and the Trustee for any expenses reasonably incurred by the
Master Servicer or the Trustee in respect of enforcing the remedies for the
breach.
With respect to any Substitute Mortgage Loan or Loans, the Transferor 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
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Mortgage Note endorsed and the Mortgage assigned as required by Section 2.01. No
substitution is permitted to be made in any calendar month after the
Determination Date for such month. Scheduled Payments due with respect to
Substitute Mortgage Loans in the month of substitution shall not be part of the
Trust Fund and will be retained by the Transferor on the next succeeding
Distribution Date. For the month of substitution, distributions to
Certificateholders will include the monthly payment due on any Deleted Mortgage
Loan for such month and thereafter the Transferor 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 the Deleted Mortgage Loan
and the substitution of the Substitute Mortgage Loans and the Master Servicer
shall deliver the amended Mortgage Loan Schedule to the Trustee. Upon the
substitution, the Substitute Mortgage Loans shall be subject to this Agreement
in all respects, and the Transferor shall be deemed to have made with respect to
the Substitute Mortgage Loans, as of the date of substitution, the
representations and warranties made pursuant to Section 2.03(b) with respect to
the Mortgage Loan. Upon any substitution and the deposit to the Certificate
Account of the amount required to be deposited therein in connection with the
substitution as described in the following paragraph, the Trustee shall release
the Mortgage File held for the benefit of the Certificateholders relating to the
Deleted Mortgage Loan to the Transferor and shall execute and deliver at the
Transferor's direction such instruments of transfer or assignment prepared by
the Transferor, in each case without recourse, as shall be necessary to vest
title in the Transferor, 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 Transferor 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 month of substitution). The amount of such shortage and interest thereon
(the "Substitution Adjustment Amount") plus, if the Transferor is not the Master
Servicer, an amount equal to the aggregate of any unreimbursed Advances and
Servicer Advances with respect to such Deleted Mortgage Loans shall be deposited
into the Certificate Account by the Transferor by the Distribution Account
Deposit Date for the Distribution Date in the month succeeding the calendar
month during which the related Mortgage Loan became required to be purchased or
replaced hereunder. If the Transferor repurchases a Mortgage Loan, the Purchase
Price therefor shall be deposited in the Certificate Account pursuant to Section
3.06 by the Distribution Account Deposit Date for the Distribution Date in the
month following the month during which the Transferor became obligated under
this Agreement to repurchase or replace the Mortgage Loan and upon such deposit
of the Purchase Price, the delivery of the Opinion of Counsel required by
Section 2.05 and receipt of a Request for Release in the form of Exhibit N, the
Trustee shall release the related Mortgage File held for the benefit of the
Certificateholders to such Person, and the Trustee shall execute and deliver at
such Person's direction such instruments of transfer or assignment prepared by
such Person, in each case without recourse, as shall be necessary to transfer
title from the Trustee. The obligation under this Agreement of any Person to
cure, repurchase, or replace any Mortgage Loan as to which a breach has occurred
and is continuing shall constitute the sole remedy against the Person respecting
the breach available to Certificateholders, the Depositor, or the Trustee on
their behalf.
The representations and warranties made pursuant to this Section 2.03 shall
survive delivery of the respective Mortgage Files to the Trustee for the benefit
of the Certificateholders.
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Section 2.04 Representations and Warranties of the Depositor as to the
Mortgage Loans.
The Depositor represents and warrants to the Trustee with respect to each
Mortgage Loan as of the date of this Agreement or such other date set forth in
this Agreement that as of the Closing Date, and following the transfer of the
Mortgage Loans to it by the Seller, the Depositor had good title to the Mortgage
Loans and the Mortgage Notes were subject to no offsets, defenses, or
counterclaims.
The representations and warranties in this Section 2.04 shall survive
delivery of the Mortgage Files to the Trustee. Upon discovery by the Depositor
or the Trustee of any breach of any of the representations and warranties in
this Section that materially and adversely affects the interest of the
Certificateholders, the party discovering the breach shall give prompt written
notice to the others and to each Rating Agency.
Section 2.05 Delivery of Opinion of Counsel in Connection with
Substitutions 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 Transferor delivers to the Trustee an Opinion
of Counsel, which Opinion of Counsel shall not be at the expense of either the
Trustee or the Trust Fund, addressed to the Trustee, to the effect that such
substitution will not (i) result in the imposition of the tax on "prohibited
transactions" on the Trust Fund or contributions after the Startup Date, as
defined in sections 860F(a)(2) and 860G(d) of the Code, respectively or (ii)
cause any REMIC created under this Agreement to fail to qualify as a REMIC at
any time that any Certificates are outstanding.
(b) Upon discovery by the Depositor, the Seller, the Master Servicer, the
Transferor or the Trustee that any Mortgage Loan does not constitute a
"qualified mortgage" within the meaning of section 860G(a)(3) of the Code, the
party discovering such fact shall promptly (and in any event within five
Business Days of discovery) give written notice thereof to the other parties. In
connection therewith, the Trustee shall require the Transferor, at the
Transferor'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 Transferor 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
under this Agreement. The "Startup Day" for purposes of the REMIC Provisions
shall be the Closing Date.
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ARTICLE THREE
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01 Master Servicer to Service Mortgage Loans.
For and on behalf of the Certificateholders, the Master Servicer shall
service and administer the Mortgage Loans in accordance with this Agreement and
the Servicing Standard.
The Master Servicer shall not make or permit any modification, waiver, or
amendment of any term of any Mortgage Loan that would cause any REMIC created
under this Agreement to fail to qualify as a REMIC or result in the imposition
of any tax under section 860F(a) or section 860G(d) of the Code.
Without limiting the generality of the foregoing, the Master Servicer, in
its own name or in the name of the Depositor and the Trustee, is hereby
authorized and empowered by the Depositor and the Trustee, when the Master
Servicer believes it appropriate in its reasonable judgment, to execute and
deliver, on behalf of the Trustee, the Depositor, the Certificateholders, or any
of them, any instruments of satisfaction or cancellation, or of partial or full
release or discharge, and all other comparable instruments, with respect to the
Mortgage Loans, and with respect to the Mortgaged Properties held for the
benefit of the Certificateholders. The Master Servicer shall prepare and deliver
to the Depositor or the Trustee any documents requiring execution and delivery
by either or both of them appropriate to enable the Master Servicer to service
and administer the Mortgage Loans to the extent that the Master Servicer is not
permitted to execute and deliver such documents pursuant to the preceding
sentence. Upon receipt of the documents, the Depositor or the Trustee shall
execute the documents and deliver them to the Master Servicer.
The Master Servicer further is authorized and empowered by the Trustee, on
behalf of the Certificateholders and the Trustee, in its own name or in the name
of the Subservicer, when the Master Servicer or the Subservicer, as the case may
be, believes it appropriate in its best judgment to register any Mortgage Loan
on the MERS(R) System, or cause the removal from the registration of any
Mortgage Loan on the MERS(R) System, to execute and deliver, on behalf of the
Trustee and the Certificateholders or any of them, any and all instruments of
assignment and other comparable instruments with respect to such assignment or
re-recording of a Mortgage in the name of MERS, solely as nominee for the
Trustee and its successors and assigns.
In accordance with and to the extent of the Servicing Standard, the Master
Servicer shall advance funds necessary to effect the payment of taxes and
assessments on the Mortgaged Properties, which advances shall be reimbursable in
the first instance from related collections from the Mortgagors pursuant to
Section 3.07, and further as provided in Section 3.09. The costs incurred by the
Master Servicer in effecting the timely payments of taxes and assessments on the
Mortgaged Properties and related insurance premiums shall not, for the purpose
of calculating monthly distributions to the Certificateholders, be added to the
Stated Principal Balances of the related Mortgage Loans, notwithstanding that
the Mortgage Loans so permit.
Section 3.02 Subservicing; Enforcement of the Obligations of Subservicers.
(a) The Master Servicer may arrange for the subservicing of any Mortgage
Loan by a subservicer pursuant to a subservicing agreement (a "Subservicer").
The subservicing arrangement and the related subservicing agreement must provide
for the servicing of the Mortgage Loans in a manner consistent with the
servicing arrangements contemplated hereunder. Unless the context otherwise
requires, references in this Agreement to actions taken or to be taken by the
Master Servicer in servicing the Mortgage Loans
47
include actions taken or to be taken by a Subservicer on behalf of the Master
Servicer. Notwithstanding anything in any subservicing agreement or this
Agreement relating to agreements or arrangements between the Master Servicer and
a Subservicer or references to actions taken through a Subservicer or otherwise,
the Master Servicer shall remain obligated and liable to the Trustee and
Certificateholders for the servicing and administration of the Mortgage Loans in
accordance with this Agreement without diminution of its obligation or liability
by virtue of the subservicing agreements or arrangements or by virtue of
indemnification from the Subservicer and to the same extent and under the same
terms as if the Master Servicer alone were servicing and administering the
Mortgage Loans. All actions of each Subservicer performed pursuant to the
related subservicing agreement shall be performed as agent of the Master
Servicer with the same effect as if performed directly by the Master Servicer.
(b) For purposes of this Agreement, the Master Servicer shall be deemed to
have received any collections, recoveries, or payments with respect to the
Mortgage Loans that are received by the Subservicer regardless of whether the
payments are remitted by the Subservicer to the Master Servicer.
Section 3.03 Rights of the Depositor and the Trustee in Respect of the
Master Servicer.
The Depositor may, but is not obligated to, enforce the obligations of the
Master Servicer under this Agreement and may, but is not obligated to, perform,
or cause a designee to perform, any defaulted obligation of the Master Servicer
under this Agreement and in connection with any such defaulted obligation to
exercise the related rights of the Master Servicer under this Agreement;
provided that the Master Servicer shall not be relieved of any of its
obligations under this Agreement by virtue of such performance by the Depositor
or its designee. Neither the Trustee nor the Depositor shall have any
responsibility or liability for any action or failure to act by the Master
Servicer nor shall the Trustee or the Depositor be obligated to supervise the
performance of the Master Servicer under this Agreement or otherwise.
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 and not as an originator 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.
If the Master Servicer for any reason is no longer the Master Servicer
under this Agreement (including because of the occurrence or existence of an
Event of Default), the Trustee or its successor shall assume all of the rights
and obligations of the Master Servicer under this Agreement arising thereafter
(except that the Trustee shall not be
(i) liable for losses of the Master Servicer pursuant to Section 3.10
or any acts or omissions of the predecessor Master Servicer hereunder,
(ii) obligated to make Advances if it is prohibited from doing so by
applicable law,
(iii) obligated to effectuate repurchases or substitutions of Mortgage
Loans hereunder, including repurchases or substitutions pursuant to Section
2.02 or 2.03,
(iv) responsible for expenses of the Master Servicer pursuant to
Section 2.03, or
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(v) deemed to have made any representations and warranties of the
Master Servicer hereunder). Any assumption shall be subject to Section
7.02.
Every subservicing agreement entered into by the Master Servicer shall
contain a provision giving the successor Master Servicer the option to terminate
the agreement if a successor Master Servicer is appointed.
If the Master Servicer is no longer the Master Servicer for any reason
(including because the occurrence or existence of any Event of Default), the
Trustee (or any other successor Master Servicer) may, at its option, succeed to
any rights and obligations of the Master Servicer under any subservicing
agreement in accordance with its terms. The Trustee (or any other successor
Master Servicer) shall not incur any liability or have any obligations in its
capacity as successor Master Servicer under a subservicing agreement arising
before the date of succession unless it expressly elects to succeed to the
rights and obligations of the Master Servicer thereunder; and the Master
Servicer shall not thereby be relieved of any liability or obligations under the
subservicing agreement arising before the date of succession.
The Master Servicer shall, upon request of the Trustee, but at the expense
of the Master Servicer, deliver to the assuming party all documents and records
relating to each subservicing agreement and the Mortgage Loans then being
serviced thereunder and an accounting of amounts collected held by it and
otherwise use its best efforts to effect the orderly and efficient transfer of
the subservicing agreement to the assuming party.
Notwithstanding anything else in this Agreement to the contrary, in no
event shall the Trustee be liable for any servicing fee or for any differential
in the amount of the Servicing Fee paid under this Agreement and the amount
necessary to induce any successor Master Servicer to act as successor Master
Servicer under this Agreement and the transactions provided for in this
Agreement.
Section 3.06 Collection of Mortgage Loan Payments; Servicing Accounts;
Collection Account; Certificate Account; Distribution Account.
(a) In accordance with and to the extent of the Servicing Standard, the
Master Servicer shall make reasonable efforts in accordance with the customary
and usual standards of practice of prudent mortgage servicers to collect all
payments called for under the Mortgage Loans to the extent the procedures are
consistent with this Agreement and any related Required Insurance Policy.
Consistent with the foregoing, the Master Servicer may in its discretion (i)
waive any late payment charge or, subject to Section 3.21, any Prepayment Charge
in connection with the prepayment of a Mortgage Loan and (ii) extend the due
dates for payments due on a Delinquent Mortgage Loan for a period not greater
than 125 days. In connection with a seriously delinquent or defaulted Mortgage
Loan, the Master Servicer may, consistent with the Servicing Standard, waive,
modify or vary any term of that Mortgage Loan (including modifications that
change the Mortgage Rate, forgive the payment of principal or interest or extend
the final maturity date of that Mortgage Loan ), accept payment from the related
Mortgagor of an amount less than the Stated Principal Balance in final
satisfaction of that Mortgage Loan, or consent to the postponement of strict
compliance with any such term or otherwise grant indulgence to any Mortgagor if
in the Master Servicer's determination such waiver, modification, postponement
or indulgence is not materially adverse to the interests of the
Certificateholders (taking into account any estimated loss that might result
absent such action) and is expected to minimize the loss on such Mortgage Loan;
provided, however, the Master Servicer shall not initiate new lending to such
Mortgagor through the Trust and cannot, except as provided in the immediately
succeeding sentence, extend the maturity of any Mortgage Loan past the date on
which the final payment is due on the latest maturing Mortgage Loan as of the
Cut-off Date. With respect to no more than 5% of the Mortgage Loans (measured by
aggregate Cut-off Date
49
Principal Balance of the Mortgage Loans), the Master Servicer may extend the
maturity of a Mortgage Loan past the date on which the final payment is due on
the latest maturing Mortgage Loan as of the Cut-off Date, but in no event more
than one year past such date. In the event of any such arrangement, the Master
Servicer shall make Advances on the related Mortgage Loan in accordance with
Section 4.01 during the scheduled period in accordance with the amortization
schedule of the Mortgage Loan without modification thereof because of the
arrangements. The Master Servicer shall not be required to institute or join in
litigation with respect to collection of any payment (whether under a Mortgage,
Mortgage Note, or otherwise or against any public or governmental authority with
respect to a taking or condemnation) if it reasonably believes that enforcing
the provision of the Mortgage or other instrument pursuant to which the payment
is required is prohibited by applicable law. The Master Servicer shall not have
the discretion to sell any Delinquent or defaulted Mortgage Loan.
(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 (the "Servicing Account")
into which the Master Servicer shall deposit on a daily basis within one
Business Day of receipt, the following payments and collections received by it
or remitted by any Subservicer in respect of Mortgage Loans after the Cut-off
Date (other than in respect of principal and interest due on the Mortgage Loans
by the 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
(iii) all Insurance Proceeds, Subsequent Recoveries and Liquidation
Proceeds, other than proceeds to be applied to the restoration or repair of
the Mortgaged Property or released to the Mortgagor in accordance with the
Master Servicer's normal servicing procedures.
By the Withdrawal Date in each calendar month, the Master Servicer shall
(a) withdraw from the Servicing Account all amounts on deposit therein pursuant
to clauses (i) and (ii) above (other than amounts attributable to a Principal
Prepayment in Full) and (b) deposit such amounts in the Collection Account.
By the Business Day in each calendar month following the deposit in the
Servicing Account of amounts on deposit therein pursuant to clause (iii) above
or pursuant to any Principal Prepayment in Full, the Master Servicer shall (a)
withdraw such amounts from the Servicing Account and (b) deposit such amounts in
the Collection Account.
(c) The Master Servicer shall establish and maintain a Collection Account
(the "Collection Account") into which the Master Servicer shall deposit, as and
when required by paragraph (b) of this Section 3.06, all amounts required to be
deposited into the Collection Account pursuant to that paragraph. The Collection
Account shall be an Eligible Account held for the benefit of the
Certificateholders.
(d) The Master Servicer shall establish and maintain a Certificate Account
into which the Master Servicer shall deposit on a daily basis (i) within one
Business Day of deposit in the Collection Account (in the case of items (i)
through (iii) below) and (2) within one Business Day of receipt (in the case of
all other items), except as otherwise specified herein, the following payments
and collections received by it or remitted by any Subservicer in respect of
Mortgage Loans after the Cut-off Date (other than in respect of principal and
interest due on the Mortgage Loans by the Cut-off Date) and the following
amounts required to be deposited hereunder:
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(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 Servicing Fee and Prepayment Interest Excess;
(iii) all Insurance Proceeds, Subsequent Recoveries and Liquidation
Proceeds, other than proceeds to be applied to the restoration or repair of
the Mortgaged Property or released to the Mortgagor in accordance with the
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 3.10 and 3.12;
(vi) all Purchase Prices from the Master Servicer or Transferor 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 under this
Agreement; and
(ix) all Prepayment Charges collected.
In addition, with respect to any Mortgage Loan that is subject to a buydown
agreement, on each Due Date for the Mortgage Loan, in addition to the monthly
payment remitted by the Mortgagor, the Master Servicer shall cause funds to be
deposited into the Certificate Account in an amount required to cause an amount
of interest to be paid with respect to the Mortgage Loan equal to the amount of
interest that has accrued on the Mortgage Loan from the preceding Due Date at
the Mortgage Rate net of the Servicing Fee Rate on that date.
The foregoing requirements for remittance by the Master Servicer shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of late payment charges or assumption
fees, if collected, need not be remitted by the Master Servicer. If the Master
Servicer remits any amount not required to be remitted, it may at any time
withdraw that amount from the Certificate Account, any provision in this
Agreement to the contrary notwithstanding. The withdrawal or direction may be
accomplished by delivering written notice of it to the Trustee or any other
institution maintaining the Certificate Account that describes the amounts
deposited in error in the Certificate Account. The 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) The Trustee shall establish and maintain the Distribution Account on
behalf of the Certificateholders. The Trustee shall, promptly upon receipt,
deposit in the Distribution Account and retain in the Distribution Account the
following:
(i) the aggregate amount remitted by the Master Servicer to the
Trustee pursuant to Section 3.09(a);
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(ii) any amount deposited by the Master Servicer pursuant to Section
3.06(f) in connection with any losses on Permitted Investments; and
(iii) any other amounts deposited under this Agreement that are
required to be deposited in the Distribution Account.
If the Master Servicer remits any amount not required to be remitted, it
may at any time direct the Trustee in writing to withdraw that amount from the
Distribution Account, any provision in this Agreement to the contrary
notwithstanding. The direction may be accomplished by delivering an Officer's
Certificate to the Trustee that describes the amounts deposited in error in the
Distribution Account. All funds deposited in the Distribution Account shall be
held by the Trustee in trust for the Certificateholders until disbursed in
accordance with this Agreement or withdrawn in accordance with Section 3.09. In
no event shall the Trustee incur liability for withdrawals from the Distribution
Account at the direction of the Master Servicer.
(f) Each institution at which the Certificate Account is maintained shall
invest the funds in such account as directed in writing by the Master Servicer
in Permitted Investments, which shall mature not later than the second Business
Day preceding the related Distribution Account Deposit Date (except that if the
Permitted Investment is an obligation of the institution that maintains the
account, then the Permitted Investment shall mature not later than the Business
Day preceding the Distribution Account Deposit Date) and which shall not be sold
or disposed of before its maturity. The funds in the Distribution Account shall
remain uninvested. All such Permitted Investments shall be made in the name of
the Trustee, for the benefit of the Certificateholders. All income realized from
any such investment of funds on deposit in the Certificate Account shall be for
the benefit of the Master Servicer as servicing compensation and shall be
remitted to it monthly as provided in this Agreement. The amount of any realized
losses on Permitted Investments in the Certificate Account shall promptly be
deposited by the Master Servicer in the Certificate Account. The Trustee shall
not be liable for the amount of any loss incurred in respect of any investment
or lack of investment of funds held in the Certificate Account and made in
accordance with this Section 3.06.
(g) The Master Servicer shall give notice to the Trustee, the Transferor,
each Rating Agency and the Depositor of any proposed change of the location of
the Certificate Account not later than 30 days and not more than 45 days prior
to any change of this Agreement. The Trustee shall give notice to the Master
Servicer, the Transferor, each Rating Agency and the Depositor of any proposed
change of the location of the Distribution Account not later than 30 days and
not more than 45 days prior to any change of this Agreement.
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 Section 3.01 (with respect to taxes and assessments
and insurance premiums) and Section 3.10 (with respect to hazard insurance), to
refund to any Mortgagors
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any sums determined to be overages, to pay interest, if required by law or the
related Mortgage or Mortgage Note, to Mortgagors on balances in the Escrow
Account or to clear and terminate the Escrow Account at the termination of this
Agreement in accordance with Section 9.01. The Escrow Accounts shall not be a
part of the Trust Fund.
(c) The Master Servicer shall advance any payments referred to in Section
3.07(a) that are not timely paid by the Mortgagors or advanced by the Master
Servicer on the date when the tax, premium or other cost for which such payment
is intended is due, but the Master Servicer shall be required so to advance only
to the extent that such advances, in the good faith judgment of the Master
Servicer, will be recoverable by the Master Servicer out of Insurance Proceeds,
Liquidation Proceeds or otherwise.
Section 3.08 Access to Certain Documentation and Information Regarding the
Mortgage Loans.
The Master Servicer shall afford the Depositor and the Trustee reasonable
access to all records and documentation regarding the Mortgage Loans and all
accounts, insurance information and other matters relating to this Agreement,
such access being afforded without charge, but only upon reasonable request and
during normal business hours at the office designated by the Master Servicer.
Upon reasonable advance notice in writing, the Master Servicer will provide
to each Certificateholder or Certificate Owner that is a savings and loan
association, bank, or insurance company certain reports and reasonable access to
information and documentation regarding the Mortgage Loans sufficient to permit
the Certificateholder or Certificate Owner to comply with applicable regulations
of the OTS or other regulatory authorities with respect to investment in the
Certificates. The Master Servicer shall be entitled to be reimbursed by each
such Certificateholder or Certificate Owner for actual expenses incurred by the
Master Servicer in providing the reports and access.
Section 3.09 Permitted Withdrawals from the Certificate Account and the
Distribution 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 or successor Master Servicer for
the unreimbursed Advances made by it, such right of reimbursement pursuant
to this subclause (ii) being limited to amounts received on the Mortgage
Loans in respect of which the Advance was made;
(iii) to reimburse the Master Servicer or successor Master Servicer
for any Nonrecoverable Advance previously made by it;
(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
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Loan being limited to amounts received on the Mortgage Loans that
represent late recoveries of the payments for which the advances were made
pursuant to Section 3.01 or Section 3.07 and (b) for unpaid 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 of such Mortgage Loan that has been purchased
pursuant to Section 2.02, 2.03, or 3.12, all amounts received thereon after
the date of such purchase;
(vii) to reimburse the Transferor, 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 in the Certificate Account;
(ix) by the Distribution Account Deposit Date, to withdraw (1) the
Available Funds and the Trustee Fee for the Distribution Date, to the
extent on deposit, and (2) the Prepayment Charges on deposit, and remit
such amount to the Trustee for deposit in the Distribution Account; and
(x) to clear and terminate the Certificate Account upon termination of
this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, to justify any withdrawal from the
Certificate Account pursuant to subclauses (i), (ii), (iv), (v), and (vi).
Before making any withdrawal from the Certificate Account pursuant to subclause
(iii), the Master Servicer shall deliver to the Trustee an Officer's Certificate
of a Servicing Officer indicating the amount of any previous Advance determined
by the Master Servicer to be a Nonrecoverable Advance and identifying the
related Mortgage Loans and their respective portions of the Nonrecoverable
Advance.
(b) The Trustee shall withdraw funds from the Distribution Account for
distributions to Certificateholders in the manner specified in this Agreement
(and to withhold from the amounts so withdrawn the amount of any taxes that it
is authorized to withhold pursuant to the last paragraph of Section 8.11). In
addition, the Trustee may from time to time make withdrawals from the
Distribution Account for the following purposes:
(i) to pay to itself the Trustee Fee for the related Distribution
Date;
(ii) to withdraw and return to the Master Servicer any amount
deposited in the Distribution Account and not required to be deposited
therein; and
(iii) to clear and terminate the Distribution Account upon termination
of the Agreement pursuant to Section 9.01.
Section 3.10 Maintenance of Hazard Insurance; Maintenance of Primary
Insurance Policies.
(a) The Master Servicer shall maintain, for each Mortgage Loan, hazard
insurance with extended coverage in an amount that is at least equal to the
lesser of
(i) the maximum insurable value of the improvements securing the Mortgage
Loan and
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(ii) the greater of (y) the outstanding principal balance of the Mortgage
Loan and (z) an amount such that the proceeds of the policy are sufficient to
prevent the Mortgagor or the mortgagee from becoming a co-insurer.
Each policy of standard hazard insurance shall contain, or have an
accompanying endorsement that contains, a standard mortgagee clause. Any amounts
collected under the policies (other than the amounts to be applied to the
restoration or repair of the related Mortgaged Property or amounts released to
the Mortgagor in accordance with the Master Servicer's normal servicing
procedures) shall be deposited in the Certificate Account. Any cost incurred in
maintaining any insurance shall not, for the purpose of calculating monthly
distributions to the Certificateholders or remittances to the Trustee for their
benefit, be added to the principal balance of the Mortgage Loan, notwithstanding
that the Mortgage Loan so permits. Such costs shall be recoverable by the Master
Servicer out of late payments by the related Mortgagor or out of Liquidation
Proceeds to the extent permitted by Section 3.09. No earthquake or other
additional insurance is to be required of any Mortgagor or maintained on
property acquired in respect of a Mortgage other than pursuant to any applicable
laws and regulations in force that require additional insurance. If the
Mortgaged Property is located at the time of origination of the Mortgage Loan in
a federally designated special flood hazard area and the area is participating
in the national flood insurance program, the Master Servicer shall maintain
flood insurance for the Mortgage Loan. The flood insurance shall be in an amount
equal to the least of (i) the original principal balance of the related Mortgage
Loan, (ii) the replacement value of the improvements that are part of the
Mortgaged Property, and (iii) the maximum amount of flood insurance available
for the related Mortgaged Property under the national flood insurance program.
If the Master Servicer obtains and maintains a blanket policy insuring
against hazard losses on all of the Mortgage Loans, it shall have satisfied its
obligations in the first sentence of this Section 3.10. The policy may contain a
deductible clause on terms substantially equivalent to those commercially
available and maintained by comparable servicers. If the policy contains a
deductible clause and a policy complying with the first sentence of this Section
3.10 has not been maintained on the related Mortgaged Property, and if a loss
that would have been covered by the required policy occurs, the Master Servicer
shall deposit in the Certificate Account, without any right of reimbursement,
the amount not otherwise payable under the blanket policy because of the
deductible clause. In connection with its activities as Master Servicer of the
Mortgage Loans, the Master Servicer agrees to present, on behalf of itself, the
Depositor, and the Trustee for the benefit of the Certificateholders, claims
under any blanket policy.
(b) The Master Servicer shall not take any action that would result in
non-coverage under any applicable Primary Insurance Policy of any loss that, but
for the actions of the Master Servicer, would have been covered thereunder. The
Master Servicer shall not cancel or refuse to renew any Primary Insurance Policy
that is in effect at the date of the initial issuance of the Certificates and is
required to be kept in force hereunder unless the replacement Primary Insurance
Policy for the canceled or non-renewed policy is maintained with a Qualified
Insurer. The Master Servicer need not maintain any Primary Insurance Policy if
maintaining the Primary Insurance Policy is prohibited by applicable law. The
Master Servicer agrees, to the extent permitted by applicable law, to effect the
timely payment of the premiums on each Primary Insurance Policy, and any costs
not otherwise recoverable shall be recoverable by the Master Servicer from the
related liquidation proceeds.
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 any reasonable action in accordance with the
Servicing Standard necessary to permit recovery under any Primary Insurance
Policies respecting defaulted Mortgage Loans. Any amounts collected by the
Master Servicer under any Primary Insurance Policies shall be deposited in the
Certificate Account or the Collection Account (as applicable).
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Section 3.11 Enforcement of Due-On-Sale Clauses; Assumption Agreements.
(a) Except as otherwise provided in this Section 3.11, when any property
subject to a Mortgage has been conveyed by the Mortgagor, the Master Servicer
shall to the extent that it has knowledge of the conveyance and in accordance
with the Servicing Standard, enforce any due-on-sale clause contained in any
Mortgage Note or Mortgage, to the extent permitted under applicable law and
governmental regulations, but only to the extent that enforcement will not
adversely affect or jeopardize coverage under any Required Insurance Policy.
Notwithstanding the foregoing, the Master Servicer is not required to exercise
these rights with respect to a Mortgage Loan if the Person to whom the related
Mortgaged Property has been conveyed or is proposed to be conveyed satisfies the
conditions contained in the Mortgage Note and Mortgage related thereto and the
consent of the mortgagee under the Mortgage Note or Mortgage is not otherwise so
required under the Mortgage Note or Mortgage as a condition to the transfer.
If (i) the Master Servicer is prohibited by law from enforcing any
due-on-sale clause, (ii) coverage under any Required Insurance Policy would be
adversely affected, (iii) the Mortgage Note does not include a due-on-sale
clause, or (iv) nonenforcement is otherwise permitted hereunder, the Master
Servicer is authorized, subject to Section 3.11(b), to take or enter into an
assumption and modification agreement from or with the person to whom the
property has been or is about to be conveyed, pursuant to which the person
becomes liable under the Mortgage Note and, unless prohibited by applicable
state law, the Mortgagor remains liable thereon. The Mortgage Loan must continue
to be covered (if so covered before the Master Servicer enters into the
agreement) by the applicable Required Insurance Policies.
The Master Servicer, subject to Section 3.11(b), is also authorized with
the prior approval of the insurers under any Required Insurance Policies to
enter into a substitution of liability agreement with the Person, pursuant to
which the original Mortgagor is released from liability and the Person is
substituted as Mortgagor and becomes liable under the Mortgage Note.
Notwithstanding the foregoing, the Master Servicer shall not be deemed to be in
default under this Section 3.11 because of any transfer or assumption that the
Master Servicer reasonably believes it is restricted by law from preventing, for
any reason whatsoever.
(b) Subject to the Master Servicer's duty to enforce any due-on-sale clause
to the extent set forth in Section 3.11(a), in any case in which a Mortgaged
Property has been conveyed to a Person by a Mortgagor, and the Person is to
enter into an assumption agreement or modification agreement or supplement to
the Mortgage Note or Mortgage that requires the signature of the Trustee, or if
an instrument of release signed by the Trustee is required releasing the
Mortgagor from liability on the Mortgage Loan, the Master Servicer shall prepare
and deliver to the Trustee for signature and shall direct the Trustee, in
writing, to execute the assumption agreement with the Person to whom the
Mortgaged Property is to be conveyed, and the modification agreement or
supplement to the Mortgage Note or Mortgage or other instruments appropriate to
carry out the terms of the Mortgage Note or Mortgage or otherwise to comply with
any applicable laws regarding assumptions or the transfer of the Mortgaged
Property to the Person. In connection with any such assumption, no material term
of the Mortgage Note may be changed.
In addition, the substitute Mortgagor and the Mortgaged Property must be
acceptable to the Master Servicer in accordance with its underwriting standards
as then in effect. Together with each substitution, assumption, or other
agreement or instrument delivered to the Trustee for execution by it, the Master
Servicer shall deliver an Officer's Certificate signed by a Servicing Officer
stating that the requirements of this subsection have been met in connection
with such Officer's Certificate. The Master Servicer shall notify the Trustee
that any substitution or assumption agreement has been completed by forwarding
to the Trustee the original of the substitution or assumption agreement, which
in the case of
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the original shall be added to the related Mortgage File and shall, for all
purposes, be considered a part of the Mortgage File to the same extent as all
other documents and instruments constituting a part of the Mortgage File. The
Master Servicer will retain any fee collected by it for entering into an
assumption or substitution of liability agreement as additional master servicing
compensation.
Section 3.12 Realization Upon Defaulted Mortgage Loans.
The Master Servicer shall use reasonable efforts in accordance with the
Servicing Standard to foreclose on or otherwise comparably convert the ownership
of assets securing such of the Mortgage Loans as come into and continue in
default and as to which no satisfactory arrangements can be made for collection
of delinquent payments. In connection with the foreclosure or other conversion,
the Master Servicer shall follow the Servicing Standard and shall follow the
requirements of the insurer under any Required Insurance Policy. The Master
Servicer shall not be required to expend its own funds in connection with any
foreclosure or towards the restoration of any property unless it determines (i)
that the restoration or foreclosure will increase the proceeds of liquidation of
the Mortgage Loan after reimbursement to itself of restoration expenses and (ii)
that restoration expenses will be recoverable to it through Liquidation Proceeds
(respecting which it shall have priority for purposes of withdrawals from the
Certificate Account). The Master Servicer shall be responsible for all other
costs and expenses incurred by it in any foreclosure proceedings. The Master
Servicer is entitled to reimbursement of such costs and expenses from the
liquidation proceeds with respect to the related Mortgaged Property, as provided
in the definition of Liquidation Proceeds. If the Master Servicer has knowledge
that a Mortgaged Property that the Master Servicer is contemplating acquiring in
foreclosure or by deed in lieu of foreclosure is located within a one mile
radius of any site listed in the Expenditure Plan for the Hazardous Substance
Clean Up Bond Act of 1984 or other site with environmental or hazardous waste
risks known to the Master Servicer, the Master Servicer will, before acquiring
the Mortgaged Property, consider the risks and only take action in accordance
with its established environmental review procedures.
With respect to any REO Property, the deed or certificate of sale shall be
taken in the name of the Trustee for the benefit of the Certificateholders, or
its nominee, on behalf of the Certificateholders. The Trustee's name shall be
placed on the title to the REO Property solely as the Trustee hereunder and not
in its individual capacity. The Master Servicer shall ensure that the title to
the REO Property references the Pooling and Servicing Agreement and the
Trustee's capacity hereunder. Pursuant to its efforts to sell the REO Property,
the Master Servicer shall either itself or through an agent selected by the
Master Servicer protect and conserve the REO Property in accordance with the
Servicing Standard.
The Master Servicer shall perform the tax reporting and withholding
required by sections 1445 and 6050J of the Code with respect to foreclosures and
abandonments, the tax reporting required by section 6050H of the Code with
respect to the receipt of mortgage interest from individuals and, if required by
section 6050P of the Code with respect to the cancellation of indebtedness by
certain financial entities, by preparing any required tax and information
returns, in the form required, and delivering the same to the Trustee for
filing.
If the Trust Fund acquires any Mortgaged Property as aforesaid or otherwise
in connection with a default or imminent default on a Mortgage Loan, the REO
Property shall only be held temporarily, shall be actively marketed for sale,
and the Master Servicer shall dispose of the Mortgaged Property as soon as
practicable, and in any case before the end of the third calendar year following
the calendar year in which the Trust Fund acquires the property. Notwithstanding
any other provision of this Agreement, no Mortgaged Property acquired by the
Trust Fund shall be rented (or allowed to continue to be rented) or otherwise
used for the production of income by or on behalf of the Trust Fund.
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The decision of the Master Servicer to foreclose on a defaulted Mortgage
Loan shall be subject to a determination by the Master Servicer that the
proceeds of the foreclosure would exceed the costs and expenses of bringing a
foreclosure proceeding. The proceeds received from the maintenance of any REO
Properties, net of reimbursement to the Master Servicer for costs incurred
(including any property or other taxes) in connection with maintenance of the
REO Properties and net of unreimbursed Servicing Fees, Advances, and Servicing
Advances, shall be applied to the payment of principal of and interest on the
related defaulted Mortgage Loans (with interest accruing as though the Mortgage
Loans were still current and adjustments, if applicable, to the Mortgage Rate
were being made in accordance with the Mortgage Note) and all such proceeds
shall be deemed, for all purposes in this Agreement, to be payments on account
of principal and interest on the related Mortgage Notes and shall be deposited
into the Certificate Account. To the extent the net proceeds received during any
calendar month exceeds the amount attributable to amortizing principal and
accrued interest at the related Mortgage Rate on the related Mortgage Loan for
the calendar month, the excess shall be considered to be a partial prepayment of
principal of the related Mortgage Loan.
The proceeds from any liquidation of a Mortgage Loan, as well as any
proceeds from an REO Property, will be applied in the following order of
priority: first, to reimburse the Master Servicer for any related unreimbursed
Servicing Advances or Servicing Fees or for any related unreimbursed Advances,
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)(iii) that related to the Mortgage Loan; third, to accrued and
unpaid interest (to the extent no Advance has been made for such amount or any
such Advance has been reimbursed) on the Mortgage Loan or related REO Property,
at the Adjusted Net Mortgage Rate to the Due Date occurring in the month in
which such amounts are required to be distributed; and fourth, as a recovery of
principal of the Mortgage Loan. The Master Servicer will retain any Excess
Proceeds from the liquidation of a Liquidated Mortgage Loan as additional
servicing compensation pursuant to Section 3.15.
Section 3.13 Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the Master
Servicer of a notification that payment in full will be escrowed in a manner
customary for such purposes, the Master Servicer will immediately notify the
Trustee by delivering a Request for Release substantially in the form of Exhibit
N. Upon receipt of the request, the Trustee shall promptly release the related
Mortgage File to the Master Servicer, and the Trustee shall at the Master
Servicer's direction execute and deliver to the Master Servicer the request for
reconveyance, deed of reconveyance, or release or satisfaction of mortgage or
such instrument releasing the lien of the Mortgage in each case provided by the
Master Servicer, together with the Mortgage Note with written evidence of
cancellation thereon. The Master Servicer is authorized to cause the removal
from the registration on the MERS System of such Mortgage and to execute and
deliver, on behalf of the Trustee and the Certificateholders or any of them, any
and all instruments of satisfaction or cancellation or of partial or full
release. Expenses incurred in connection with any instrument of satisfaction or
deed of reconveyance shall be chargeable to the related Mortgagor.
From time to time and as shall be appropriate for the servicing or
foreclosure of any Mortgage Loan, including for such purpose collection under
any policy of flood insurance, any fidelity bond or errors or omissions policy,
or for the purposes of effecting a partial release of any Mortgaged Property
from the lien of the Mortgage or the making of any corrections to the Mortgage
Note or the Mortgage or any of the other documents included in the Mortgage
File, the Trustee shall, upon delivery to the Trustee of a Request for Release
in the form of Exhibit M signed by a Servicing Officer, release the Mortgage
File to the 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
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need therefor by the Master Servicer no longer exists, unless the Mortgage Loan
is liquidated and the proceeds thereof are deposited in the Certificate Account,
in which case the Master Servicer shall deliver to the Trustee a Request for
Release in the form of Exhibit N, signed by a Servicing Officer.
If the Master Servicer at any time seeks to initiate a foreclosure
proceeding in respect of any Mortgaged Property as authorized by this Agreement,
the Master Servicer shall deliver to the Trustee, for signature, as appropriate,
any court pleadings, requests for trustee's sale, or other documents necessary
to effectuate such foreclosure or any legal action brought to obtain judgment
against the Mortgagor on the Mortgage Note or the Mortgage or to obtain a
deficiency judgment or to enforce any other remedies or rights provided by the
Mortgage Note or the Mortgage or otherwise available at law or in equity.
Section 3.14 Documents, Records and Funds in Possession of the Master
Servicer to be Held for the Trustee.
The Master Servicer shall account fully to the Trustee for any funds it
receives or otherwise collects as Liquidation Proceeds or Insurance Proceeds in
respect of any Mortgage Loan. All Mortgage Files and funds collected or held by,
or under the control of, the Master Servicer in respect of any Mortgage Loans,
whether from the collection of principal and interest payments or from
Liquidation Proceeds, including any funds on deposit in the Certificate Account,
shall be held by the Master Servicer for and on behalf of the Trustee and shall
be and remain the sole and exclusive property of the Trustee, subject to the
applicable provisions of this Agreement. The Master Servicer also agrees that it
shall not create, incur or subject any Mortgage File or any funds that are
deposited in the Certificate Account, the Collection Account, Distribution
Account, or any Escrow Account, or any funds that otherwise are or may become
due or payable to the Trustee for the benefit of the Certificateholders, to any
claim, lien, security interest, judgment, levy, writ of attachment, or other
encumbrance, or assert by legal action or otherwise any claim or right of setoff
against any Mortgage File or any funds collected on, or in connection with, a
Mortgage Loan, except, however, that the Master Servicer shall be entitled to
set off against and deduct from any such funds any amounts that are properly due
and payable to the Master Servicer under this Agreement.
Section 3.15 Servicing Compensation.
As compensation for its activities under this Agreement, the Master
Servicer may retain or withdraw from the Servicing Account, the Collection
Account, or the Certificate Account the Servicing Fee for each Mortgage Loan for
the related Distribution Date. Notwithstanding the foregoing, the Servicing Fee
payable to the Master Servicer shall be reduced by the lesser of the aggregate
of the Prepayment Interest Shortfalls with respect to the Distribution Date and
the aggregate Compensating Interest for the Distribution Date.
The Master Servicer may retain or withdraw from the Servicing Account, the
Collection Account, or the Certificate Account the Servicing Fee for each
Mortgage Loan for the related Distribution Date. If the Master Servicer directly
services a Mortgage Loan, the Master Servicer may retain the Servicing Fee for
its own account as compensation for performing services. If a Subservicer
directly services a Mortgage Loan, unless the Subservicer retains the Servicing
Fee, the Master Servicer shall remit the Servicing Fee to the related
Subservicer as compensation for performing services.
Additional master servicing compensation in the form of Excess Proceeds,
Prepayment Interest Excess, assumption fees, late payment charges and all income
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 under
this Agreement (including the fees of any
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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 Certificates and Certificate
Owners and the examiners and supervisory agents of the OTS, the FDIC, and such
other authorities, access to the documentation regarding the Mortgage Loans
required by applicable regulations of the OTS and the FDIC. Access shall be
afforded without charge, but only upon reasonable prior written request and
during normal business hours at the offices designated by the 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.
By March 1 of each year, commencing with 2005, the Master Servicer shall
deliver to the Depositor and the Trustee an Officer's Certificate signed by two
Servicing Officers stating, as to each 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 the review, the Master Servicer has fulfilled all its obligations under this
Agreement throughout the year, or, if there has been a default in the
fulfillment of any obligation, specifying each default known to the officer and
the nature and status thereof. The Trustee shall forward a copy of each
compliance statement to each Rating Agency.
Section 3.18 Annual Independent Public Accountants' Servicing Statement;
Financial Statements.
By March 1 of each year, commencing with 2005, 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 Transferor 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 the firm has examined certain documents and
records relating to the servicing of the Mortgage Loans under this Agreement or
of mortgage loans under pooling and servicing agreements substantially similar
to this Agreement (the statement to have attached to it a schedule of the
pooling and servicing agreements covered by it) and that, on the basis of its
examination, conducted substantially in compliance with the Audit Guide for
Audits of HUD Approved Nonsupervised Mortgagees, the Uniform Single Attestation
Program for Mortgage Bankers, or the Audit Program for Mortgages serviced for
FNMA and FHLMC, such servicing has been conducted in compliance with this
Agreement except for any significant exceptions or errors in records that, in
the opinion of the firm, the Audit Guide for Audits of HUD Approved
Nonsupervised Mortgagees, the Uniform Single Attestation Program for Mortgage
Bankers, or the Audit Program for Mortgages serviced for FNMA and FHLMC requires
it to report. In rendering the statement, the firm may rely, as to matters
relating to direct servicing of Mortgage Loans by the subservicers, upon
comparable statements for examinations conducted substantially in compliance
with the Audit Guide for Audits of HUD Approved Nonsupervised Mortgagees, the
Uniform Single Attestation Program for Mortgage Bankers, or the Audit Program
for Mortgages serviced for FNMA and FHLMC (rendered within one year of the
statement) of independent public accountants with respect to the related
Subservicer. The Master Servicer shall deliver the statement to the Trustee so
that the Trustee can
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provide copies of the statement to any Certificateholder or Certificate Owner on
request at the Master Servicer's expense.
Section 3.19 Errors and Omissions Insurance; Fidelity Bonds.
The Master Servicer shall obtain and maintain in force (a) policies of
insurance covering errors and omissions in the performance of its obligations as
Master Servicer hereunder and (b) a fidelity bond covering its officers,
employees, and agents. Each policy and bond shall, together, comply with the
requirements from time to time of FNMA or FHLMC for persons performing servicing
for mortgage loans purchased by FNMA or FHLMC. If any policy or bond ceases to
be in effect, the Master Servicer shall obtain a comparable replacement policy
or bond from an insurer or issuer meeting the above requirements as of the date
of the replacement.
Section 3.20 Notification of Adjustments.
On each Adjustment Date, the Master Servicer shall make interest rate
adjustments for each Mortgage Loan in compliance with the requirements of the
related Mortgage and Mortgage Note and applicable regulations. The Master
Servicer shall execute and deliver the notices required by each Mortgage and
Mortgage Note and applicable regulations regarding interest rate adjustments.
The Master Servicer also shall provide timely notification to the Trustee of all
applicable data and information regarding such interest rate adjustments and the
Master Servicer's methods of implementing such interest rate adjustments. Upon
the discovery by the Master Servicer or the Trustee that the Master Servicer has
failed to adjust or has incorrectly adjusted a Mortgage Rate or a monthly
payment pursuant to the terms of the related Mortgage Note and Mortgage, the
Master Servicer shall immediately deposit in the Certificate Account from its
own funds the amount of any loss caused thereby without reimbursement therefor;
provided, however, the Master Servicer shall not be liable with respect to any
interest rate adjustments made by any servicer prior to the Master Servicer.
Section 3.21 Prepayment Charges.
The Master Servicer will not waive any part of any Prepayment Charge unless
the waiver relates to a default or a reasonably foreseeable default, the
Prepayment Charge would cause an undue hardship to the related borrower, the
Mortgaged Property is sold by the Mortgagor, the collection of any Prepayment
Charge would violate any relevant law or regulation or the waiving of the
Prepayment Charge would otherwise benefit the Trust Fund and it is expected that
the waiver would maximize recovery of total proceeds taking into account the
value of the Prepayment Charge and related Mortgage Loan and doing so is
standard and customary in servicing similar Mortgage Loans (including any waiver
of a Prepayment Charge in connection with a refinancing of a Mortgage Loan that
is related to a default or a reasonably foreseeable default). The Master
Servicer will not waive a Prepayment Charge in connection with a refinancing of
a Mortgage Loan that is not related to a default or a reasonably foreseeable
default.
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ARTICLE FOUR
DISTRIBUTIONS AND ADVANCES BY THE MASTER SERVICER
Section 4.01 Advances.
(a) 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 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.
(b) If the Master Servicer determines that it will be unable to comply with
its obligation to make the Advances as and when described in the second sentence
of Section 4.01(a), it shall use its best efforts to give written notice thereof
to the Trustee (each such notice an "Advance Notice"; and such notice may be
given by telecopy), not later than 3:00 P.M., New York time, on the Business Day
immediately preceding the related Master Servicer Advance Date, specifying the
amount that it will be unable to deposit (each such amount an "Advance
Deficiency") and certifying that such Advance Deficiency constitutes an Advance
hereunder and is not a Nonrecoverable Advance. If the Trustee receives a Trustee
Advance Notice on or before 3:00 P.M., New York time on a Master Servicer
Advance Date, the Trustee is entitled to immediately terminate the Master
Servicer under Section 7.01, and shall, not later than 3:00 P.M., New York time,
on the related Distribution Date, deposit in the Distribution Account an amount
equal to the Advance Deficiency identified in such Trustee Advance Notice unless
it is prohibited from so doing by applicable law. Notwithstanding the foregoing,
the Trustee shall not be required to make such deposit if the Trustee shall have
received written notification from the Master Servicer that the Master Servicer
has deposited or caused to be deposited in the Certificate Account an amount
equal to such Advance Deficiency by 3:00 P.M. New York time on the related
Distribution Date. If the Trustee has not terminated the Master Servicer, the
Master Servicer shall reimburse the Trustee for the amount of any Advance
(including interest at the Prime Rate on the day of such reimbursement published
in The Wall Street Journal) on such amount, made by the Trustee pursuant to this
Section 4.01(b) not later than the second day following the related Master
Servicer Advance Date. In the event that the Master Servicer does not reimburse
the Trustee in accordance with the requirements of the preceding sentence, the
Trustee shall immediately (a) terminate all of the rights and obligations of the
Master Servicer under this Agreement in accordance with Section 7.01 and (b)
subject to the limitations set forth in Section 3.05, assume all of the rights
and obligations of the Master Servicer hereunder.
(c) The Master Servicer shall, not later than the close of business on the
Business Day immediately preceding each Master Servicer Advance Date, deliver to
the Trustee a report (in form and substance reasonably satisfactory to the
Trustee) that indicates (i) the Mortgage Loans with respect to which the Master
Servicer has determined that the related Scheduled Payments should be advanced
and (ii) the amount of the related Scheduled Payments. The Master Servicer shall
deliver to the Trustee on
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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.
(a) (1) On each Distribution Date, the Trustee shall withdraw the Available
Funds for Loan Group 1 from the Distribution Account and apply such funds to
distributions on the Group 1 Senior Certificates in the following order and
priority and, in each case, to the extent of Available Funds remaining:
(i) concurrently, to each interest-bearing Class of Group 1 Senior
Certificates, an amount allocable to interest equal to the related Class
Optimal Interest Distribution Amount, any shortfall being allocated among
such Classes in proportion to the amount of the Class Optimal Interest
Distribution Amount that would have been distributed in the absence of such
shortfall;
(ii) [reserved];
(iii) concurrently, to each Class of Group 1 Senior Certificates as
follows:
(A) [reserved]; and
(B) on each Distribution Date, the Principal Amount for Loan
Group 1, up to the amount of the related Senior Principal
Distribution Amount for such Distribution Date will be
distributed, sequentially, to the Class A-R and Class 1-A
Certificates, in that order, until their respective Class
Certificate Balances are reduced to zero;
(iv) [reserved];
(2) On each Distribution Date, the Trustee shall withdraw the Available
Funds for Loan Group 2 from the Distribution Account and apply such funds to
distributions on the Group 2 Senior Certificates in the following order and
priority and, in each case, to the extent of Available Funds remaining:
(i) concurrently, to each interest-bearing Class of Group 2 Senior
Certificates, an amount allocable to interest equal to the related Class
Optimal Interest Distribution Amount, any shortfall being allocated among
such Classes in proportion to the amount of the Class Optimal Interest
Distribution Amount that would have been distributed in the absence of such
shortfall;
(ii) [reserved];
(iii) concurrently, to each Class of Group 2 Senior Certificates as
follows:
(A) [reserved];
(B) on each Distribution Date, the Principal Amount for Loan
Group 2, up to the amount of the related Senior Principal
Distribution Amount for such Distribution Date will be
distributed, to the Class 2-A Certificates, until its Class
Certificate Balance is reduced to zero;
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(3) On each Distribution Date, after making the distributions described in
Section 4.02(a)(1) and Section 4.02(a)(2), Available Funds from each Loan Group
remaining will be distributed to the Senior Certificates to the extent provided
in Section 4.03.
(4) On each Distribution Date, Available Funds from both Loan Groups
remaining after making the distributions described in Sections 4.02(a)(1)
Section 4.02(a)(2) and Section 4.02(a)(3) will be distributed to the
Subordinated Certificates, the Class P Certificates and the Class A-R
Certificates, subject to paragraph 4.02(e) below, in the following order of
priority:
(A) to the Class B-1 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution
Amount for such Class for such Distribution Date;
(B) to the Class B-1 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution
Date until the Class Certificate Balance thereof is reduced
to zero;
(C) to the Class B-2 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution
Amount for such Class for such Distribution Date;
(D) to the Class B-2 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution
Date until the Class Certificate Balance thereof is reduced
to zero;
(E) to the Class B-3 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution
Amount for such Class for such Distribution Date;
(F) to the Class B-3 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution
Date until the Class Certificate Balance thereof is reduced
to zero;
(G) to the Class B-4 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution
Amount for such Class for such Distribution Date;
(H) to the Class B-4 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution
Date until the Class Certificate Balance thereof is reduced
to zero;
(I) to the Class B-5 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution
Amount for such Class for such Distribution Date;
(J) to the Class B-5 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution
Date until the Class Certificate Balance thereof is reduced
to zero;
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(K) to the Class B-6 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution
Amount for such Class for such Distribution Date; and
(L) to the Class B-6 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution
Date until the Class Certificate Balance thereof is reduced
to zero;
(5) [reserved]; and
(6) to the Class A-R Certificates, any remaining funds; provided, that such
amounts shall not include the $100 held in trust for the Class P Certificates.
On each Distribution Date, all amounts representing Prepayment Charges
received during the related Prepayment Period will be distributed to the holders
of the Class P Certificates. On the Distribution Date immediately following the
expiration of the latest Prepayment Charge Period of the Mortgage Loans, the
$100 held in trust for the Class P Certificates will be distributed to the
holders of the Class P Certificates.
(b) [reserved].
(c) [reserved].
(d) On each Distribution Date, the amount referred to in clause (i) of the
definition of Class Optimal Interest Distribution Amount for each Class of
Certificates for such Distribution Date shall be reduced by (i) the related
Class' pro rata share of Net Prepayment Interest Shortfalls based on the (x)
with respect to a Class of Senior Certificates, on the related Class Optimal
Interest Distribution Amount and (y) with respect to a Class of Subordinated
Certificates on and prior to a Senior Termination Date, the related Assumed
Interest Amount for such Distribution Date or after a Senior Termination Date,
the Class Optimal Interest Distribution Amount for such Distribution Date, in
each case in the absence of such Net Prepayment Interest Shortfalls and (ii) the
related Class' Allocable Share of (A) after the Special Hazard Coverage
Termination Date, with respect to each Mortgage Loan in the related Loan Group
(or, after the Senior Credit Support Depletion Date, any Mortgage Loan) that
became a Special Hazard Mortgage Loan during the calendar month preceding the
month of such Distribution Date, the excess of one month's interest at the
Adjusted Net Mortgage Rate on the Stated Principal Balance of such Mortgage Loan
as of the Due Date in such month over the amount of Liquidation Proceeds applied
as interest on such Mortgage Loan with respect to such month, (B) after the
Bankruptcy Coverage Termination Date, with respect to each Mortgage Loan that
became subject to a Bankruptcy Loss during the calendar month preceding the
month of such Distribution Date, the interest portion of the related Debt
Service Reduction or Deficient Valuation, (C) each Relief Act Reduction for the
Mortgage Loans in the related Loan Group (or, after the Senior Credit Support
Depletion Date, any Mortgage Loan) incurred during the calendar month preceding
the month of such Distribution Date and (D) after the Fraud Loss Coverage
Termination Date, with respect to each Mortgage Loan in the related Loan Group
(or, after the Senior Credit Support Depletion Date, any Mortgage Loan) that
became a Fraud Loan during the calendar month preceding the month of such
Distribution Date, the excess of one month's interest at the related Adjusted
Net Mortgage Rate on the Stated Principal Balance of such Mortgage Loan as of
the Due Date in such month over the amount of Liquidation Proceeds applied as
interest on such Mortgage Loan with respect to such month.
(e) Notwithstanding the priority and allocation contained in Section
4.02(a), if, with respect to any Class of Subordinated Certificates, on any
Distribution Date the sum of the related Class Subordination Percentages of such
Class and of all Classes of Subordinated Certificates that have a higher
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numerical Class designation than such Class (the "Applicable Credit Support
Percentage") is less than the Original Applicable Credit Support Percentage for
such Class, no distribution of Principal Prepayments on the Mortgage Loans will
be made to any such Classes (the "Restricted Classes") and the amount of such
Principal Prepayments otherwise distributable to the Restricted Classes shall be
distributed to the Classes of Subordinated Certificates having lower numerical
Class designations than such Class, pro rata, based on their respective Class
Certificate Balances immediately prior to such Distribution Date and shall be
distributed in the sequential order set forth in Section 4.02(a)(4).
Notwithstanding the foregoing, the Class of Subordinated Certificates then
outstanding with the lowest numerical class designation shall not be a
Restricted Class.
(f) If the amount of a Realized Loss on a Mortgage Loan in a Loan Group has
been reduced by application of Subsequent Recoveries with respect to such
Mortgage Loan, the amount of such Subsequent Recoveries will be applied
sequentially, in the order of payment priority, to increase the Class
Certificate Balance of each related Class of Certificates to which Realized
Losses have been allocated, but in each case by not more than the amount of
Realized Losses previously allocated to that Class of Certificates pursuant to
Section 4.05. Holders of such Certificates will not be entitled to any payment
in respect of the Class Optimal Interest Distribution Amount on the amount of
such increases for any Interest Accrual Period preceding the Distribution Date
on which such increase occurs. Any such increases shall be applied to the
Certificate Balance of each Certificate of such Class in accordance with its
respective Percentage Interest.
Section 4.03 Cross-Collateralization; Adjustments to Available Funds
(a) Reserved.
(b) If on any Distribution Date the Class Certificate Balance of the Senior
Certificates in a Loan Group is greater than the aggregate Stated Principal
Balance of the Mortgage Loans in such Loan Group (the "Undercollateralized
Group"), then the Trustee shall reduce the Available Funds of the other Loan
Group that is not undercollateralized (the "Overcollateralized Group"), as
follows:
(i) to add to the Available Funds of the Undercollateralized Group an
amount equal to the lesser of (a) one month's interest on the Transfer
Payment Received of the Undercollateralized Group at the Weighted Average
Adjusted Net Mortgage Rate applicable to the Undercollateralized Group and
(b) Available Funds of the Overcollateralized Group remaining after making
distributions to the Certificates of the Overcollateralized Group on such
Distribution Date pursuant to Section 4.02; and
(ii) to the Senior Certificates of the Undercollateralized Group, to
the extent of the principal portion of Available Funds of the
Overcollateralized Group remaining after making distributions to the Senior
Certificates of the Overcollateralized Group on such Distribution Date
pursuant to Section 4.02, until the Class Certificate Balance of the Senior
Certificates of such Undercollateralized Group equals the aggregate Stated
Principal Balance of the Mortgage Loans in the related Loan Group.
The payment received by the Undercollateralized Group is referred to as a
"Transfer Payment Received." The payment made by the Overcollateralized Group is
referred to as a "Transfer Payment Made."
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Section 4.04 [Reserved].
Section 4.05 Allocation of Realized Losses.
(a) On or prior to each Determination Date, the Trustee shall determine the
total amount of Realized Losses, including Excess Losses, with respect to each
related Distribution Date.
Realized Losses with respect to any Distribution Date shall be allocated as
follows:
(i) [reserved]; and
(ii) (A) any Realized Loss (other than any Excess Loss) on the
Mortgage Loans in a Loan Group shall be allocated first to the Subordinated
Certificates in reverse order of their respective numerical Class
designations (beginning with the Class of Subordinated Certificates then
outstanding with the highest numerical Class designation) until the
respective Class Certificate Balance of each such Class is reduced to zero,
and second to the Classes of Senior Certificates of the related Senior
Certificate Group, pro rata on the basis of their respective Class
Certificate Balances, in each case immediately prior to the related
Distribution Date, until the respective Class Certificate Balance of each
such Class is reduced to zero.
(B) On each Distribution Date, Excess Losses on the Mortgage Loans in
a Loan Group shall be allocated pro rata among the Classes of Senior
Certificates (other than the Notional Amount Certificates) of the related
Senior Certificate Group and the Subordinated Certificates as follows: (i)
in the case of the Senior Certificates, the Senior Percentage of such
Excess Losses shall be allocated among the Classes of Senior Certificates
in the related Senior Certificate Group pro rata on the basis of their
respective Class Certificate Balances immediately prior to the related
Distribution Date and (ii) in the case of the Subordinated Certificates,
the Subordinated Percentage of such Excess Loss shall be allocated among
the Classes of Subordinated Certificates pro rata based on each Class'
share of the Assumed Balance of the related Loan Group immediately prior to
the related Distribution Date; provided, however, on any Distribution Date
after a Senior Termination Date for a Senior Certificate Group, such Excess
Losses on the Mortgage Loans in the related Loan Group shall be allocated
to the Senior Certificates and the Subordinated Certificates on the basis
of their respective Class Certificate Balances immediately prior to such
Distribution Date; provided further, however, on any Distribution Date on
and after the Senior Credit Support Depletion Date, any Excess Loss shall
be allocated, pro rata, among the Classes of Senior Certificates (other
than the Notional Amount Certificates) based on their respective Class
Certificate Balances immediately prior to the related Distribution Date.
(b) The Class Certificate Balance of the Class of Subordinated Certificates
then outstanding with the highest numerical Class designation shall be reduced
on each Distribution Date by the amount, if any, by which the aggregate of the
Class Certificate Balances of all outstanding Classes of Certificates (after
giving effect to the distribution of principal and the allocation of Realized
Losses on such Distribution Date) exceeds the aggregate Stated Principal Balance
of the Mortgage Loans as of the Due Date in the month of such Distribution Date
(after giving effect to Principal Prepayments in the Prepayment Period related
to such Due Date).
(c) Any Realized Loss allocated to a Class of Certificates or any reduction
in the Class Certificate Balance of a Class of Certificates pursuant to Section
4.05 (a) or (b) shall be allocated among the Certificates of such Class in
proportion to their respective Certificate Balances.
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(d) Any allocation of Realized Losses to a Certificate or any reduction in
the Certificate Balance of a Certificate pursuant to Section 4.05(a) or (b)
shall be accomplished by reducing the Certificate Balance thereof immediately
following the distributions made on the related Distribution Date in accordance
with the definition of Certificate Balance.
Section 4.06 Monthly Statements to Certificateholders.
(a) Not later than each Distribution Date, the Trustee shall prepare and
make available on its website at xxxxx://xxx.xxx.xx.xxx/xxxx to each
Certificateholder, the Master Servicer and the Depositor a statement for the
related distribution of:
(i) the amount of the distribution allocable to principal, separately
identifying the aggregate amount of any Principal Prepayments and
Liquidation Proceeds included therein;
(ii) the amount of the distribution allocable to interest, any Class
Unpaid Interest Amounts included in the distribution and any remaining
Class Unpaid Interest Amounts after giving effect to the distribution;
(iii) if the distribution to the Holders of any Class of Certificates
is less than the full amount that would be distributable to them if
sufficient funds were available, the amount of the shortfall and the
allocation of the shortfall between principal and interest;
(iv) the Class Certificate Balance or Notional Amount of each Class of
Certificates after giving effect to the distribution of principal on the
Distribution Date;
(v) the Pool Stated Principal Balance for the following Distribution
Date;
(vi) each Senior Percentage and each Subordinated Percentage for the
following Distribution Date;
(vii) the amount of the Servicing Fees paid to or retained by the
Master Servicer or Subservicer (with respect to the Subservicers, in the
aggregate) and the amounts of any additional servicing compensation
received by the Master Servicer attributable to penalties, fees, excess
Liquidation Proceeds or other similar charges or fees and items with
respect to the Distribution Date;
(viii) the Pass-Through Rate for each Class of Certificates as of the
day before the preceding Distribution Date;
(ix) the Pass-Through Rate for each Class of Certificates, if adjusted
from the date of the last monthly statement, expected to be applicable on
the next Distribution Date.
(x) the amount of Advances included in the distribution on the
Distribution Date and the aggregate amount of Advances outstanding as of
the close of business on the Distribution Date;
(xi) the number and aggregate principal amounts of Mortgage Loans in
each Loan Group and in the aggregate (A) delinquent (exclusive of Mortgage
Loans in foreclosure) (1) 1 to 30 days, (2) 31 to 60 days, (3) 61 to 90
days, and (4) 91 or more days and (B) in foreclosure and delinquent (1) 1
to 30 days, (2) 31 to 60 days, (3) 61 to 90 days, and (4) 91 or more days,
as of the close of business on the last day of the calendar month preceding
the Distribution Date;
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(xii) for each of the preceding 12 calendar months, or all calendar
months since the Cut-off Date, whichever is less, the aggregate dollar
amount of the Scheduled Payments
(A) due on all Outstanding Mortgage Loans in each Loan Group and in
the aggregate 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;
(xiii) with respect to any Mortgage Loan that became an REO Property
during the preceding calendar month, the loan number and Stated Principal
Balance of the Mortgage Loan as of the close of business on the
Determination Date preceding the Distribution Date and the date of
acquisition thereof;
(xiv) the total number and principal balance of any REO Properties in
each Loan Group and in the aggregate (and market value, if available) as of
the close of business on the Determination Date preceding the Distribution
Date;
(xv) each Senior Prepayment Percentage and Subordinated Prepayment
Percentage for such Distribution Date;
(xvi) the aggregate amount of Realized Losses in each Loan Group and
in the aggregate incurred and Subsequent Recoveries, if any, received
during the preceding calendar month and aggregate Realized Losses through
such Distribution Date;
(xvii) the Special Hazard Loss Coverage Amount, the Fraud Loss
Coverage Amount and the Bankruptcy Loss Coverage Amount, in each case as of
the related Determination Date; and
(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.
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.
By each Determination Date the Master Servicer shall provide to the Trustee
in electronic form the information needed to determine the distributions to be
made pursuant to Section 4.02 and any other information on which the Master
Servicer and the Trustee mutually agree.
(b) On or before the fifth Business Day following the end of each
Prepayment Period (but in no event later than the third Business Day prior to
the related Distribution Date), the Master Servicer shall deliver to the Trustee
(which delivery may be by electronic data transmission) a report in
substantially the form set forth as Schedule V.
(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
4.06 aggregated for such calendar year or applicable portion thereof during
which such Person was a Certificateholder. Such obligation of the Trustee shall
be deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Trustee pursuant to any requirements of the
Code as from time to time in effect.
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Section 4.07 [Reserved].
Section 4.08 Determination of Pass-Through Rates for LIBOR Certificates.
On each LIBOR Determination Date so long as the LIBOR Certificates are
outstanding, the Trustee will determine LIBOR on the basis of the British
Bankers' Association ("BBA") "Interest Settlement Rate" for one-month deposits
in U.S. dollars as found on Moneyline Telerate Page 3750 as of 11:00 a.m. London
time on each LIBOR Determination Date.
(a) If LIBOR cannot be determined as provided in the first paragraph of
this Section 4.08, the Trustee shall either (i) request each Reference Bank to
inform the Trustee of the quotation offered by its principal London office for
making one-month United States dollar deposits in leading banks in the London
interbank market, as of 11:00 a.m. (London time) on such LIBOR Determination
Date or (ii) in lieu of making any such request, rely on such Reference Bank
quotations that appear at such time on the Reuters Screen LIBO Page (as defined
in the International Swap Dealers Association Inc. Code of Standard Wording,
Assumptions and Provisions for Swaps, 1986 Edition), to the extent available.
(b) LIBOR for the next Interest Accrual Period for a Class of LIBOR
Certificates will be established by the Trustee on each LIBOR Determination Date
as follows:
(i) If on any LIBOR Determination Date two or more Reference Banks
provide such offered quotations, LIBOR for the next Interest Accrual Period
for a Class of LIBOR Certificates shall be the arithmetic mean of such
offered quotations (rounding such arithmetic mean upwards if necessary to
the nearest whole multiple of 1/32%).
(ii) If on any LIBOR Determination Date only one or none of the
Reference Banks provides such offered quotations, LIBOR for the next
Interest Accrual Period for a Class of LIBOR Certificates shall be
whichever is the higher of (i) LIBOR as determined on the previous LIBOR
Determination Date or (ii) the Reserve Interest Rate. The "Reserve Interest
Rate" shall be the rate per annum which the Trustee determines to be either
(i) the arithmetic mean (rounded upwards if necessary to the nearest whole
multiple of 1/32%) of the one-month United States dollar lending rates that
New York City banks selected by the Trustee are quoting, on the relevant
LIBOR Determination Date, to the principal London offices of at least two
of the Reference Banks to which such quotations are, in the opinion of the
Trustee, being so made, or (ii) in the event that the Trustee can determine
no such arithmetic mean, the lowest one-month United States dollar lending
rate which New York City banks selected by the Trustee are quoting on such
LIBOR Determination Date to leading European banks.
(iii) If on any LIBOR Determination Date the Trustee is required but
is unable to determine the Reserve Interest Rate in the manner provided in
paragraph (b) above, LIBOR shall be LIBOR as determined on the preceding
LIBOR Determination Date, or, in the case of the first LIBOR Determination
Date, the Initial LIBOR Rate.
(c) Until all of the LIBOR Certificates are paid in full, the Trustee will
at all times retain at least four Reference Banks for the purpose of determining
LIBOR with respect to each LIBOR Determination Date. The 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 Trustee shall promptly appoint or cause to be appointed another Reference
Bank. The Trustee
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shall have no liability or responsibility to any Person for (i) the selection of
any Reference Bank for purposes of determining LIBOR or (ii) any inability to
retain at least four Reference Banks which is caused by circumstances beyond its
reasonable control.
(d) The Pass-Through Rate for each Class of LIBOR Certificates for each
related Interest Accrual Period shall be determined by the Trustee on each LIBOR
Determination Date so long as the LIBOR Certificates are outstanding on the
basis of LIBOR and the respective formulae appearing in footnotes corresponding
to the LIBOR Certificates in the table relating to the Certificates in the
Preliminary Statement.
(e) In determining LIBOR, any Pass-Through Rate for the LIBOR Certificates,
any Interest Settlement Rate, or any Reserve Interest Rate, the Trustee may
conclusively rely and shall be protected in relying upon the offered quotations
(whether written, oral or on the Dow Xxxxx Markets) from the BBA designated
banks, the Reference Banks or the New York City banks as to LIBOR, the Interest
Settlement Rate or the Reserve Interest Rate, as appropriate, in effect from
time to time. The Trustee shall not have any liability or responsibility to any
Person for (i) the Trustee's selection of New York City banks for purposes of
determining any Reserve Interest Rate or (ii) its inability, following a
good-faith reasonable effort, to obtain such quotations from, the BBA designated
banks, the Reference Banks or the New York City banks or to determine such
arithmetic mean, all as provided for in this Section 4.08.
(f) The establishment of LIBOR and each Pass-Through Rate for the LIBOR
Certificates by the Trustee shall (in the absence of manifest error) be final,
conclusive and binding upon each Holder of a Certificate and the Trustee.
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ARTICLE FIVE
THE CERTIFICATES
Section 5.01 The Certificates.
The Certificates shall be substantially in the forms attached hereto as
exhibits. The Certificates shall be issuable in registered form, in the minimum
denominations, integral multiples of $1,000 in excess thereof (except that one
Certificate in each Class may be issued in a different amount which must exceed
the applicable minimum denomination) and aggregate denominations per Class set
forth in the Preliminary Statement.
Subject to Section 9.02 respecting the final distribution on the
Certificates, on each Distribution Date the Trustee shall make distributions to
each Certificateholder of record on the preceding Record Date either (x) by wire
transfer in immediately available funds to the account of such holder at a bank
or other entity having appropriate facilities therefor, if such Holder has so
notified the Trustee at least five Business Days before the related Record Date
or (y) by check mailed by first class mail to such Certificateholder at the
address of such holder appearing in the Certificate Register.
The Trustee shall execute the Certificates by the manual or facsimile
signature of an authorized officer. Certificates bearing the manual or facsimile
signatures of individuals who were, at the time such signatures were affixed,
authorized to sign on behalf of the Trustee shall bind the Trustee,
notwithstanding that such individuals or any of them have ceased to be so
authorized before the countersignature and delivery of any such Certificates or
did not hold such offices at the date of such Certificate. No Certificate shall
be entitled to any benefit under this Agreement, or be valid for any purpose,
unless countersigned by the Trustee by manual signature, and such
countersignature upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly executed and delivered hereunder.
All Certificates shall be dated the date of their countersignature. On the
Closing Date, the Trustee shall countersign the Certificates to be issued at the
direction of the Depositor, or any affiliate thereof.
The Depositor shall provide the Trustee, on a continuous basis with an
adequate inventory of Certificates to facilitate transfers.
Section 5.02 Certificate Register; Registration of Transfer and Exchange of
Certificates.
(a) The Trustee shall maintain, in accordance with Section 5.06, a
Certificate Register for the Trust Fund in which, subject to subsections (b) and
(c) below and to such reasonable regulations as it may prescribe, the Trustee
shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. Upon surrender for registration of
transfer of any Certificate, the Trustee shall execute and deliver, in the name
of the designated transferee or transferees, one or more new Certificates of the
same Class and aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged for
other Certificates of the same Class in authorized denominations and evidencing
the same aggregate Percentage Interest upon surrender of the Certificates to be
exchanged at the office or agency of the Trustee. Whenever any Certificates are
so surrendered for exchange, the Trustee shall execute, authenticate, and
deliver the Certificates that the Certificateholder making the exchange is
entitled to receive. A written instrument of transfer in form satisfactory to
the Trustee duly executed by the holder of a Certificate or his attorney duly
authorized in writing shall accompany every Certificate presented or surrendered
for registration of transfer or exchange.
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No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or exchange shall
be cancelled and subsequently destroyed by the Trustee in accordance with the
Trustee's customary procedures.
(b) No transfer of a Private Certificate shall be made unless such transfer
is made pursuant to an effective registration statement under the Securities Act
and any applicable state securities laws or is exempt from the registration
requirements under the Securities Act and such state securities laws. If a
transfer is to be made in reliance on an exemption from the Securities Act and
such state securities laws, to assure compliance with the Securities Act and
such state securities laws, the Certificateholder desiring to effect such
transfer and such Certificateholder's prospective transferee shall each certify
to the Trustee in writing the facts surrounding the transfer in substantially
the form set forth in Exhibit J (the "Transferor Certificate") and deliver to
the Trustee either (i) a letter in substantially the form of either Exhibit K
(the "Investment Letter") or Exhibit L (the "Rule 144A Letter") or (ii) at the
expense of the transferor, an Opinion of Counsel that the transfer may be made
without registration under the Securities Act. The Depositor shall provide to
any Holder of a Private Certificate and any prospective transferee designated by
that Holder, information regarding the related Certificates and the Mortgage
Loans and any other information necessary to satisfy the condition to
eligibility in Rule 144A(d)(4) for transfer of the Certificate without
registration thereof under the Securities Act pursuant to the registration
exemption provided by Rule 144A. The Trustee and the 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 reasonably requests to meet its obligation under the
preceding sentence. Each Holder of a Private Certificate desiring to effect a
transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor,
the Transferor, and the Master Servicer against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
No transfer of an ERISA-Restricted Certificate shall be made unless the
Trustee shall have received either (i) a representation from the transferee of
such Certificate acceptable to and in form and substance satisfactory to the
Trustee (if the Certificate is a Private Certificate, the requirement is
satisfied only by the Trustee's receipt of a representation letter from the
transferee substantially in the form of Exhibit K or Exhibit L, and if the
Certificate is a Residual Certificate, the requirement is satisfied only by the
Trustee's receipt of a representation letter from the transferee substantially
in the form of Exhibit I), to the effect that (x) the transferee is not an
employee benefit plan or arrangement subject to section 406 of ERISA or a plan
subject to section 4975 of the Code, or a person acting on behalf of any such
plan or arrangement or using the assets of any such plan or arrangement to
effect the transfer, or (y) if the ERISA-Restricted Certificate has been the
subject of an ERISA-Qualifying Underwriting, a representation that the
transferee is an insurance company that is purchasing such 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 satisfy the
requirements for exemptive relief under Sections I and III of PTCE 95-60, or
(ii) in the case of any ERISA-Restricted Certificate presented for registration
in the name of an employee benefit plan subject to ERISA, or a plan or
arrangement subject to section 4975 of the Code (or comparable provisions of any
subsequent enactments), or a trustee of any such plan or any other person acting
on behalf of any such plan or arrangement or using such plan's or arrangement's
assets, an Opinion of Counsel satisfactory to the Trustee, which Opinion of
Counsel shall not be an expense of the Trustee, the Master Servicer or the Trust
Fund, addressed to the Trustee and the Master Servicer, to the effect that the
purchase or holding of such ERISA-Restricted Certificate will not result in a
non-exempt prohibited transaction under ERISA or section 4975 of the Code and
will not subject the Trustee or the Master
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Servicer to any obligation in addition to those expressly undertaken in this
Agreement or to any liability. For purposes of the preceding sentence, with
respect to an ERISA-Restricted Certificate that is not a Residual Certificate,
if the appropriate representation letter or Opinion of Counsel referred to in
the preceding sentence is not furnished, the representation in clause (i)above,
shall be deemed to have been made to the Trustee by the transferee's (including
an initial acquirer's) acceptance of the ERISA-Restricted Certificates. If the
representation is violated, or any attempt is made to transfer to a plan or
arrangement subject to section 406 of ERISA or a plan subject to section 4975 of
the Code, or a person acting on behalf of any such plan or arrangement or using
the assets of any such plan or arrangement, without the Opinion of Counsel
described above, the attempted transfer or acquisition shall be void.
To the extent permitted under applicable law (including ERISA), the Trustee
shall be under no liability to any Person for any registration of transfer of
any ERISA-Restricted Certificate that is in fact not permitted by this Section
5.02(b) or for making any payments due on such Certificate to the Holder thereof
or taking any other action with respect to such Holder under this Agreement so
long as the transfer was registered by the Trustee in accordance with the
foregoing requirements.
(c) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee.
(ii) No Ownership Interest in a Residual Certificate may be registered
on the Closing Date or thereafter transferred, and the Trustee shall not
register the Transfer of any Residual Certificate unless, in addition to
the certificates required to be delivered to the Trustee under subparagraph
(b) above, the Trustee shall have been furnished with an affidavit (a
"Transfer Affidavit") of the initial owner or the proposed transferee in
the form of Exhibit I.
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Residual Certificate, (B) to obtain a Transfer Affidavit from
any Person for whom such Person is acting as nominee, trustee or agent in
connection with any Transfer of a Residual Certificate and (C) not to
Transfer its Ownership Interest in a Residual Certificate or to cause the
Transfer of an Ownership Interest in a Residual Certificate to any other
Person if it has actual knowledge that such Person is not a Permitted
Transferee.
(iv) Any attempted or purported Transfer of any Ownership Interest in
a Residual Certificate in violation of this Section 5.02(c) shall be
absolutely null and void and shall vest no rights in the purported
Transferee. If any purported transferee shall become a Holder of a Residual
Certificate in violation of this Section 5.02(c), then the last preceding
Permitted Transferee shall be restored to all rights as Holder thereof
retroactive to the date of registration of Transfer of such Residual
Certificate. The Trustee shall be under no liability to any Person for any
registration of Transfer of a Residual Certificate that is in fact not
permitted by Section 5.02(b) and this Section 5.02(c) or for making any
payments due on such Certificate to the Holder thereof or taking any other
action with respect to such Holder under this Agreement so long as the
Transfer was registered after receipt of the related Transfer Affidavit,
Transferor Certificate and either the Rule 144A Letter or the Investment
Letter. The Trustee shall be entitled but not
74
obligated to recover from any Holder of a Residual Certificate that was in
fact not a Permitted Transferee at the time it became a Holder or, at such
subsequent time as it became other than a Permitted Transferee, all
payments made on such Residual Certificate at and after either such time.
Any such payments so recovered by the Trustee shall be paid and delivered
by the Trustee to the last preceding Permitted Transferee of such
Certificate.
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Trustee, all information necessary to
compute any tax imposed under section 860E(e) of the Code as a result of a
Transfer of an Ownership Interest in a Residual Certificate to any Holder
who is not a Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set forth in this
Section 5.02(c) shall cease to apply (and the applicable portions of the legend
on a Residual Certificate may be deleted) with respect to Transfers occurring
after delivery to the Trustee of an Opinion of Counsel, which Opinion of Counsel
shall not be an expense of the Trust Fund, the Trustee, the Transferor or the
Master Servicer, to the effect that the elimination of such restrictions will
not cause any REMIC created under this Agreement to fail to qualify as a REMIC
at any time that the Certificates are outstanding or result in the imposition of
any tax on the Trust Fund, a Certificateholder or another Person. Each Person
holding or acquiring any Ownership Interest in a Residual Certificate hereby
consents to any amendment of this Agreement which, based on an Opinion of
Counsel furnished to the Trustee, is reasonably necessary (a) to ensure that the
record ownership of, or any beneficial interest in, a Residual Certificate is
not transferred, directly or indirectly, to a Person that is not a Permitted
Transferee and (b) to provide for a means to compel the Transfer of a Residual
Certificate which is held by a Person that is not a Permitted Transferee to a
Holder that is a Permitted Transferee.
(d) The preparation and delivery of all certificates and opinions referred
to above in this Section 5.02 in connection with transfer shall be at the
expense of the parties to such transfers.
(e) Except as provided below, the Book-Entry Certificates shall at all
times remain registered in the name of the Depository or its nominee and at all
times: (i) registration of the Certificates may not be transferred by the
Trustee except to another Depository; (ii) the Depository shall maintain
book-entry records with respect to the Certificate Owners and with respect to
ownership and transfers of such Book-Entry Certificates; (iii) ownership and
transfers of registration of the Book-Entry Certificates on the books of the
Depository shall be governed by applicable rules established by the Depository;
(iv) the Depository may collect its usual and customary fees, charges and
expenses from its Depository Participants; (v) the Trustee shall deal with the
Depository, Depository Participants and Indirect Participants as representatives
of the Certificate Owners of the Book-Entry Certificates for purposes of
exercising the rights of holders under this Agreement, and requests and
directions for and votes of such representatives shall not be deemed to be
inconsistent if they are made with respect to different Certificate Owners; and
(vi) the Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants and furnished by the Depository Participants with respect to
Indirect Participants and persons shown on the books of such Indirect
Participants as direct or indirect Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository Participant
or brokerage firm representing the Certificate Owner. Each Depository
Participant shall only transfer Book-Entry Certificates of Certificate Owners it
represents or of brokerage firms for which it acts as agent in accordance with
the Depository's normal procedures.
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If (x) (i) the Depository or the Depositor advises the Trustee in writing
that the Depository is no longer willing or able to properly discharge its
responsibilities as Depository, and (ii) the Trustee or the Depositor is unable
to locate a qualified successor or (y) after the occurrence of an Event of
Default, Certificate Owners representing at least 51% of the Certificate Balance
of the Book-Entry Certificates together advise the Trustee and the Depository
through the Depository Participants in writing that the continuation of a
book-entry system through the Depository is no longer in the best interests of
the Certificate Owners, the Trustee shall notify all Certificate Owners, through
the Depository, of the occurrence of any such event and of the availability of
definitive, fully-registered Certificates (the "Definitive Certificates") to
Certificate Owners requesting the same. Upon surrender to the Trustee of the
related Class of Certificates by the Depository, accompanied by the instructions
from the Depository for registration, the Trustee shall issue the Definitive
Certificates. Neither the Master Servicer, the Depositor nor the Trustee shall
be liable for any delay in delivery of such instruction and each may
conclusively rely on, and shall be protected in relying on, such instructions.
The Master Servicer shall provide the Trustee with an adequate inventory of
certificates to facilitate the issuance and transfer of Definitive Certificates.
Upon the issuance of Definitive Certificates all references herein to
obligations imposed upon or to be performed by the Depository shall be deemed to
be imposed upon and performed by the Trustee, to the extent applicable with
respect to such Definitive Certificates and the Trustee shall recognize the
Holders of the Definitive Certificates as Certificateholders hereunder; provided
that the Trustee shall not by virtue of its assumption of such obligations
become liable to any party for any act or failure to act of the Depository.
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Trustee, or (b) the
Trustee receives evidence to its satisfaction of the destruction, loss, or theft
of any Certificate and the Master Servicer and the Trustee receive the security
or indemnity required by them to hold each of them harmless, then, in the
absence of notice to the Trustee that the Certificate has been acquired by a
Protected Purchaser, and if the requirements of Section 8-406 of the UCC are met
and subject to Section 8-405 of the UCC, the Trustee shall execute, countersign,
and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost,
or stolen Certificate, a new Certificate of like Class, tenor, and Percentage
Interest. In connection with the issuance of any new Certificate under this
Section 5.03, the Trustee may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Trustee) connected
therewith. Any replacement Certificate issued pursuant to this Section 5.03
shall constitute complete and indefeasible evidence of ownership, as if
originally issued, whether or not the lost, stolen, or destroyed Certificate is
found at any time.
Section 5.04 Persons Deemed Owners.
The 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 and/or Certificate Owners (a) request
such information in writing from the Trustee, (b) state that such
Certificateholders and/or Certificate Owners desire to communicate with other
Certificateholders and/or Certificate Owners with respect to their rights under
this Agreement or under the Certificates, and (c) provide a copy of the
communication which such
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Certificateholders and/or Certificate Owners 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 and/or Certificate Owners at such recipients' expense the
most recent list of the Certificateholders of such Trust Fund held by the
Trustee. The Depositor and every Certificateholder and/or Certificate Owner, by
receiving and holding a Certificate, agree that the Trustee shall not be held
accountable because of the disclosure of any such information as to the list of
the Certificateholders hereunder, regardless of the source from which such
information was derived.
Section 5.06 Maintenance of Office or Agency.
The Trustee will maintain at its expense an office or offices or agency or
agencies in New York City located at c/o DTC Transfer Services, 00 Xxxxx Xxxxxx,
Xxxxxxxx Xxxx Entrance, New York, New York 10041, where Certificates may be
surrendered for registration of transfer or exchange. The Trustee will give
prompt written notice to the Certificateholders of any change in such location
of any such office or agency.
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ARTICLE SIX
THE DEPOSITOR AND THE MASTER SERVICER
Section 6.01 Respective Liabilities of the Depositor and the Master
Servicer.
The Depositor and the Master Servicer shall each be liable in accordance
with this Agreement only to the extent of the obligations specifically and
respectively imposed upon and undertaken by them in this Agreement.
Section 6.02 Merger or Consolidation of the Depositor or the Master
Servicer.
The Depositor and the Master Servicer will each keep in full effect their
existence and their rights and franchises as a corporation and a federal savings
bank, respectively, under the laws of the United States or under the laws of one
of the states thereof and will each obtain and preserve its qualification to do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its respective duties under this Agreement.
Any Person into which the Depositor or the 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 Transferor, the
Master Servicer, and Others.
None of the Depositor, the Transferor, the Master Servicer or any of the
directors, officers, employees or agents of the Depositor, the Transferor 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 Transferor, the Master
Servicer or any such Person against any breach of representations or warranties
made by it herein or protect the Depositor, the Transferor, the Master Servicer
or any such Person from any liability which would otherwise be imposed by
reasons of willful misfeasance, bad faith or gross negligence in the performance
of duties or because of reckless disregard of obligations and duties hereunder.
The Depositor, the Transferor, the Master Servicer, and any director, officer,
employee or agent of the Depositor, the Transferor 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 Transferor, the Master Servicer, and any director, officer, employee or
agent of the Depositor, the Transferor or the Master Servicer shall be
indemnified by the Trust Fund and held harmless against any loss, liability or
expense incurred in connection with any audit, controversy or judicial
proceeding relating to a governmental taxing authority or any legal action
relating to this Agreement or the Certificates, other than any loss, liability
or expense related to any specific Mortgage Loan or Mortgage Loans (except as
any such loss, liability or expense shall be otherwise reimbursable pursuant to
this Agreement) and any loss, liability or expense incurred because of willful
misfeasance, bad faith or gross negligence in the performance of duties
hereunder or because of reckless disregard of obligations and duties hereunder.
None of the Depositor, the Transferor or the Master
78
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 Transferor or the Master Servicer may in its
discretion undertake any such action that it may deem appropriate in respect of
this Agreement and the rights and duties of the parties hereto and interests of
the Trustee and the Certificateholders hereunder. In such event, the legal
expenses and costs of such action and any liability resulting therefrom shall be
expenses, costs and liabilities of the Trust Fund, and the Depositor, the
Transferor, 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, qualification or withdrawal of the
rating of any of the Certificates or (b) upon determination that its duties
under this Agreement are no longer permissible under applicable law. Any such
determination under clause (b) permitting the resignation of the 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 under this Agreement.
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ARTICLE SEVEN
DEFAULT
Section 7.01 Events of Default.
"Event of Default," wherever used in this Agreement, means any one of the
following events:
(a) any failure by the Master Servicer to deposit in the Certificate
Account or remit to the Trustee any payment required to be made by it under this
Agreement, which failure continues unremedied for five days after the date on
which written notice of the failure has been given to the Master Servicer by the
Trustee or the Depositor or to the Master Servicer and the Trustee by the
Holders of Certificates of any Class evidencing not less than 25% of the
aggregate Percentage Interests of the Class; or
(b) any failure by the Master Servicer to observe or perform in any
material respect any other of the covenants or agreements on the part of the
Master Servicer contained in this Agreement, which failure materially affects
the rights of Certificateholders and continues unremedied for a period of 60
days after the date on which written notice of such failure shall have been
given to the Master Servicer by the Trustee or the Depositor, or to the Master
Servicer and the Trustee by the Holders of Certificates of any Class evidencing
not less than 25% of the Percentage Interests of the Class; provided that the
sixty-day cure period shall not apply to the initial delivery of the Mortgage
File for Delay Delivery Mortgage Loans nor the failure to repurchase or
substitute in lieu thereof; or
(c) a decree or order of a court or agency or supervisory authority having
jurisdiction in the premises for the appointment of a receiver, conservator or
liquidator in any insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Master Servicer and such decree or
order shall have remained in force undischarged or unstayed for a period of 60
consecutive days; or
(d) the Master Servicer shall consent to the appointment of a receiver,
conservator or liquidator in any insolvency, readjustment of debt, marshalling
of assets and liabilities or similar proceedings of or relating to the Master
Servicer or all or substantially all of the property of the Master Servicer; or
(e) the Master Servicer shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage of, or
commence a voluntary case under, any applicable insolvency or reorganization
statute, make an assignment for the benefit of its creditors, or voluntarily
suspend payment of its obligations; or
(f) the Master Servicer shall fail (i) to make an Advance on the Master
Servicer Advance Date or (ii) to reimburse in full the Trustee within two days
of the Master Servicer Advance Date for any Advance made by the Trustee pursuant
to Section 4.01(b).
If an Event of Default described in clauses (a) through (f) of this
Section 7.01 occurs, then, and in each and every such case, so long as such
Event of Default shall not have been remedied, the Trustee may, or at the
direction of the Holders of Certificates of any Class evidencing not less than
66 2/3% of the Percentage Interests of the Class, the Trustee shall by notice in
writing to the Master Servicer (with a copy to each Rating Agency), terminate
all of the rights and obligations of the Master Servicer under this Agreement
and in the Mortgage Loans and the proceeds thereof, other than its rights as a
Certificateholder hereunder. On and after the receipt by the Master Servicer of
such written notice, all authority and power of the Master Servicer hereunder,
whether with respect to the Mortgage Loans or otherwise, shall pass to and be
vested in the Trustee. The Trustee shall make any Advance that the
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Master Servicer failed to make subject to Section 3.05, whether or not the
obligations of the Master Servicer have been terminated pursuant to this
Section. The Trustee is hereby authorized and empowered to execute and deliver,
on behalf of the Master Servicer, as attorney-in-fact or otherwise, any
documents and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents, or otherwise. Unless expressly
provided in such written notice, no such termination shall affect any obligation
of the Master Servicer to pay amounts owed pursuant to Article VIII. The Master
Servicer agrees to cooperate with the Trustee in effecting the termination of
the Master Servicer's responsibilities and rights hereunder, including the
transfer to the Trustee of all cash amounts which shall at the time be credited
to the Certificate Account, or thereafter be received with respect to the
Mortgage Loans. If the Master Servicer fails to make any Advance required under
Section 4.01 of this Agreement, thereby triggering an Event of Default described
in clause (f) of this Section 7.01, the Trustee shall make such Advance on that
Distribution Date.
Notwithstanding any termination of the activities of the Master Servicer
under this Agreement, the Master Servicer shall be entitled to receive, out of
any late collection of a Scheduled Payment on a Mortgage Loan which was due
before the notice terminating such Master Servicer's rights and obligations as
Master Servicer hereunder and received after such notice, that portion thereof
to which such Master Servicer would have been entitled pursuant to Sections
3.09(a)(i) through (viii), and any other amounts payable to such Master Servicer
hereunder the entitlement to which arose before the termination of its
activities hereunder.
Section 7.02 Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer receives a notice of termination
pursuant to Section 7.01, the Trustee shall, subject to and to the extent
provided in Section 3.05, be the successor to the Master Servicer in its
capacity as master servicer under this Agreement and the transactions set forth
or provided for herein and shall be subject to all the responsibilities, duties
and liabilities relating thereto placed on the Master Servicer by the terms
hereof and applicable law including the obligation to make Advances pursuant to
Section 4.01. As compensation therefor, the Trustee shall be entitled to all
funds relating to the Mortgage Loans that the Master Servicer would have been
entitled to charge to the Certificate Account or Distribution Account if the
Master Servicer had continued to act hereunder, including, if the Master
Servicer was receiving the Servicing Fee, the Servicing Fee. Notwithstanding the
foregoing, if the Trustee has become the successor to the Master Servicer in
accordance with Section 7.01, the Trustee may, if it shall be unwilling to so
act, or shall, if it is prohibited by applicable law from making Advances
pursuant to Section 4.01 or if it is otherwise unable to so act, appoint, or
petition a court of competent jurisdiction to appoint, any established mortgage
loan servicing institution the appointment of which does not adversely affect
the then current rating of the Certificates by each Rating Agency, as the
successor to the Master Servicer hereunder in the assumption of all or any part
of the responsibilities, duties or liabilities of the Master Servicer hereunder.
Any successor to the Master Servicer shall be an institution which is a FNMA and
FHLMC approved seller/servicer in good standing, which has a net worth of at
least $15,000,000, which is willing to service the Mortgage Loans and which
executes and delivers to the Depositor and the Trustee an agreement accepting
such delegation and assignment, containing an assumption by such Person of the
rights, powers, duties, responsibilities, obligations and liabilities of the
Master Servicer (other than liabilities of the Master Servicer under Section
6.03 incurred before termination of the Master Servicer under Section 7.01),
with like effect as if originally named as a party to this Agreement; provided
that each Rating Agency acknowledges that its rating of the Certificates in
effect immediately before such assignment and delegation will not be qualified
or reduced as a result of such assignment and delegation. Pending appointment of
a successor to the Master Servicer hereunder, the Trustee shall act in such
capacity as provided above, subject to section 3.03 and unless prohibited by
law. In connection with such appointment and assumption, the Trustee may
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make such arrangements for the compensation of such successor out of payments on
Mortgage Loans as it and such successor shall agree; provided, however, that in
no case shall the rate of such compensation exceed the Servicing Fee Rate. The
Trustee and such successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession. Neither the
Trustee nor any other successor master servicer shall be deemed to be in default
hereunder because of any failure to make, or any delay in making, any
distribution hereunder or any portion thereof or any failure to perform, or any
delay in performing, any duties or responsibilities hereunder, in either case
caused by the failure of the Master Servicer to deliver or provide, or any delay
in delivering or providing, any cash, information, documents or records to it.
In connection with the termination or resignation of the Master Servicer
under this Agreement, either (i) the successor Master Servicer, including the
Trustee if the Trustee is acting as successor Master Servicer, shall represent
and warrant that it is a member of MERS in good standing and shall agree to
comply in all material respects with the rules and procedures of MERS in
connection with the servicing of the Mortgage Loans that are registered with
MERS, or (ii) the predecessor Master Servicer shall cooperate with the successor
Master Servicer either (x) in causing MERS to execute and deliver an assignment
of Mortgage in recordable form to transfer the Mortgage from MERS to the Trustee
and to execute and deliver such other notices, documents and other instruments
as may be necessary or desirable to effect a transfer of such Mortgage Loan or
servicing of such Mortgage Loan on the MERS(R) System to the successor Master
Servicer or (y) in causing MERS to designate on the MERS(R) System the successor
Master Servicer as the servicer of such Mortgage Loan. The predecessor Master
Servicer shall file or cause to be filed any such assignment in the appropriate
recording office. The successor Master Servicer shall cause such assignment to
be delivered to the Trustee promptly upon receipt of the original with evidence
of recording thereon or a copy certified by the public recording office in which
such assignment was recorded.
Any successor to the 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 this Agreement.
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.
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ARTICLE EIGHT
CONCERNING THE TRUSTEE
Section 8.01 Duties of the Trustee.
The Trustee, before the occurrence of an Event of Default and after the
curing of all Events of Default that may have occurred, shall undertake to
perform such duties and only such duties as are specifically set forth in this
Agreement. In case an Event of Default has occurred and remains uncured, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee that are specifically required to be furnished pursuant to any provision
of this Agreement shall examine them to determine whether they are in the form
required by this Agreement. The Trustee shall not be responsible for the
accuracy or content of any such resolution, certificate, statement, opinion,
report, document, order, or other instrument.
No provision of this Agreement shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act or
its own willful misconduct; provided, however, that, unless an Event of Default
known to the Trustee has occurred and is continuing,
(a) the duties and obligations of the Trustee shall be determined solely by
the express provisions of this Agreement, the Trustee shall not be liable except
for the performance of the duties and obligations specifically set forth in this
Agreement, no implied covenants or obligations shall be read into this Agreement
against the Trustee, and the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Agreement which it believed in good faith to be genuine and
to have been duly executed by the proper authorities respecting any matters
arising hereunder;
(b) the Trustee shall not be liable for an error of judgment made in good
faith by a Responsible Officer or Responsible Officers of the Trustee, unless it
is finally proven that the Trustee was negligent in ascertaining the pertinent
facts; and
(c) the Trustee shall not be liable with respect to any action taken,
suffered, or omitted to be taken by it in good faith in accordance with the
direction of Holders of Certificates evidencing not less than 25% of the Voting
Rights 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
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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;
(i) the Trustee shall be under no obligation to exercise any of the trusts,
rights or powers vested in it by this Agreement or to institute, conduct or
defend any litigation hereunder or in relation hereto at the request, order or
direction of any of the Certificateholders, pursuant to this Agreement, unless
such Certificateholders shall have offered to the Trustee reasonable security or
indemnity satisfactory to the Trustee against the costs, expenses and
liabilities which may be incurred therein or thereby;
(j) the Trustee or its Affiliates are permitted to receive additional
compensation that could be deemed to be in the Trustee's economic self-interest
for (i) serving as investment adviser, administrator, shareholder servicing
agent, custodian or sub-custodian with respect to certain of the Permitted
Investments, (ii) using Affiliates to effect transactions in certain Permitted
Investments and (iii) effecting transactions in certain Permitted Investments.
The Trustee does not guarantee the performance of any Permitted Investment; and
(k) the Trustee shall not knowingly take any action that would cause the
Trust Fund to fail to qualify as a qualifying special purpose entity.
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In order to comply with its duties under the U.S.A. Patriot Act, the
Trustee shall obtain and verify certain information and documentation from the
other parties to this Agreement, including, but not limited to, such parties'
name, address, and other identifying information.
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained in this Agreement and in the Certificates shall be
taken as the statements of the Depositor or the Transferor, as the case may be,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Agreement or
of the Certificates or of any Mortgage Loan or related document other than with
respect to the Trustee's execution and countersignature of the Certificates. The
Trustee shall not be accountable for the use or application by the Depositor or
the Master Servicer of any funds paid to the Depositor or the Master Servicer in
respect of the Mortgage Loans or deposited in or withdrawn from the Certificate
Account by the Depositor or the Master Servicer.
Except as provided in Section 2.01(c), the Trustee shall have no
responsibility for filing or recording any financing or continuation statement
in any public office at any time or to otherwise perfect or maintain the
perfection of any security interest or lien granted to it hereunder (unless the
Trustee shall have become the successor Master Servicer). The Trustee makes no
representations as to the validity or sufficiency of this Agreement or of the
Certificates or of any Mortgage Loan or related document or of MERS or the
MERS(R) System other than with respect to the Trustee's execution and
counter-signature of the Certificates.
The Trustee executes the Certificates not in its individual capacity but
solely as Trustee of the Trust Fund created by this Agreement, in the exercise
of the powers and authority conferred and vested in it by this Agreement. Each
of the undertakings and agreements made on the part of the Trustee on behalf of
the Trust Fund in the Certificates is made and intended not as a personal
undertaking or agreement by the Trustee but is made and intended for the purpose
of binding only the Trust Fund.
Section 8.04 Trustee May Own Certificates.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Certificates with the same rights as it would have if it were not the
Trustee.
Section 8.05 Trustee's Fees and Expenses.
As compensation for its activities under this Agreement, on each
Distribution Date the Trustee may withdraw from the Distribution Account the
Trustee Fee for that Distribution Date. The Trustee and any director, officer,
employee, or agent of the Trustee shall be indemnified by the Master Servicer
against any loss, liability, or expense (including reasonable attorney's fees)
resulting from any error in any tax or information return prepared by the Master
Servicer or incurred in connection with any claim or legal action relating to
(a) this Agreement, (b) the Certificates, or (c) the performance of any of the
Trustee's duties under this Agreement, other than any loss, liability or expense
incurred because of willful misfeasance, bad faith or negligence in the
performance of any of the Trustee's duties hereunder or incurred by reason of
any action of the Trustee taken at the direction of the Certificateholders under
this Agreement. This indemnity shall survive the termination of this Agreement
or the resignation or removal of the Trustee under this Agreement. Without
limiting the foregoing, except as otherwise agreed upon in writing by the
Depositor and the Trustee, and except for any expense, disbursement, or advance
arising from the Trustee's negligence, bad faith, or willful misconduct, the
Master Servicer shall pay or reimburse the Trustee, for all reasonable expenses,
disbursements, and advances incurred or made by the Trustee in accordance with
this Agreement with respect to
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(A) the reasonable compensation, expenses, and disbursements of its counsel
not associated with the closing of the issuance of the Certificates,
(B) the reasonable compensation, expenses, and disbursements of any
accountant, engineer, or appraiser that is not regularly employed by the
Trustee, to the extent that the Trustee must engage them to perform services
under this Agreement, and
(C) printing and engraving expenses in connection with preparing any
Definitive Certificates.
Except as otherwise provided in this Agreement, the Trustee shall not be
entitled to payment or reimbursement for any routine ongoing expenses incurred
by the Trustee in the ordinary course of its duties as Trustee, Registrar, or
Paying Agent under this Agreement or for any other expenses.
Section 8.06 Eligibility Requirements for the Trustee.
The Trustee hereunder shall at all times be a corporation or association
organized and doing business under the laws of a state or the United States of
America, authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $50,000,000, subject to supervision or
examination by federal or state authority and with a credit rating which would
not cause either of the Rating Agencies to reduce their respective then current
ratings of the Certificates (or having provided such security from time to time
as is sufficient to avoid such reduction) as evidenced in writing by each Rating
Agency. If such corporation or association publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section 8.06
the combined capital and surplus of such corporation or association shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall cease to
be eligible in accordance with this Section 8.06, the Trustee shall resign
immediately in the manner and with the effect specified in Section 8.07. The
entity serving as Trustee may have normal banking and trust relationships with
the Depositor and its affiliates or the Master Servicer and its affiliates;
provided, however, that such entity cannot be an affiliate of the Transferor,
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, and each Rating Agency not less than 60 days before the date specified
in such notice, when, subject to Section 8.08, such resignation is to take
effect, and acceptance by a successor trustee in accordance with Section 8.08
meeting the qualifications set forth in Section 8.06. If no successor trustee
meeting such qualifications shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice or resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible in accordance with
Section 8.06 and shall fail to resign after written request thereto by the
Depositor, or if at any time the Trustee shall become incapable of acting, or
shall be adjudged as bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, or a tax is imposed with respect to
the Trust Fund by any state in which the Trustee or the Trust Fund is located
and the imposition of such tax would be avoided by the appointment of a
different trustee, then the Depositor or the Master Servicer may remove the
Trustee and appoint a successor trustee by written instrument, in triplicate,
one
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copy of which shall be delivered to the Trustee, one copy to the Master Servicer
and one copy to the successor trustee.
The Holders of Certificates entitled to at least 51% of the Voting Rights
may at any time remove the Trustee and appoint a successor trustee by written
instrument or instruments, in triplicate, signed by such Holders or their
attorneys-in-fact duly authorized, one complete set of which shall be delivered
by the successor Trustee to the Master Servicer, one complete set to the Trustee
so removed and one complete set to the successor so appointed. The successor
trustee shall notify each Rating Agency of any removal of the Trustee.
Any resignation or removal of the Trustee and appointment of a successor
trustee pursuant to this Section 8.07 shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 8.08.
Section 8.08 Successor Trustee.
Any successor trustee appointed as provided in Section 8.07 shall execute,
acknowledge and deliver to the Depositor and to its predecessor trustee and the
Master Servicer an instrument accepting such appointment hereunder and thereupon
the resignation or removal of the predecessor trustee shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with the like effect as if originally named as trustee
herein. The Depositor, the Master Servicer and the predecessor trustee shall
execute and deliver such instruments and do such other things as may reasonably
be required for more fully and certainly vesting and confirming in the successor
trustee all such rights, powers, duties, and obligations.
No successor trustee shall accept appointment as provided in this Section
8.08 unless, at the time of its acceptance, the successor trustee is eligible
under Section 8.06 and its appointment does not adversely affect the then
current rating of the Certificates.
Upon acceptance of appointment by a successor trustee as provided in this
Section 8.08, the Depositor shall mail notice of the succession of such trustee
hereunder to all Holders of Certificates. If the Depositor fails to mail such
notice within 10 days after acceptance of appointment by the successor trustee,
the successor trustee shall cause such notice to be mailed at the expense of the
Depositor.
Section 8.09 Merger or Consolidation of the Trustee.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to the business of the Trustee, shall be the successor of
the Trustee hereunder, provided that such corporation shall be eligible under
Section 8.06 without the execution or filing of any paper or further act on the
part of any of the parties hereto, anything herein to the contrary
notwithstanding.
Section 8.10 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing any Mortgage Note may at the time be
located, the Master Servicer and the Trustee acting jointly shall have the power
and shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees jointly with the
Trustee, or separate trustee or separate trustees,
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of all or any part of the Trust Fund, and to vest in such Person or Persons, in
such capacity and for the benefit of the Certificateholders, such title to the
Trust Fund or any part thereof, whichever is applicable, and, subject to the
other provisions of this Section 8.10, such powers, duties, obligations, rights
and trusts as the Master Servicer and the Trustee may consider appropriate. If
the Master Servicer shall not have joined in such appointment within 15 days
after the receipt by it of a request to do so, or in the case an Event of
Default shall have occurred and be continuing, the Trustee alone shall have the
power to make such appointment. No co-trustee or separate trustee hereunder
shall be required to meet the terms of eligibility as a successor trustee under
Section 8.06 and no notice to Certificateholders of the appointment of any
co-trustee or separate trustee shall be required under Section 8.08.
Every separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(a) To the extent necessary to effectuate the purposes of this Section
8.10, all rights, powers, duties and obligations conferred or imposed upon the
Trustee, except for the obligation of the Trustee under this Agreement to
advance funds on behalf of the Master Servicer, shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or co-trustee
is not authorized to act separately without the Trustee joining in such act),
except to the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed (whether as Trustee hereunder or as
successor to the Master Servicer hereunder), the Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the applicable Trust
Fund or any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at the
direction of the Trustee;
(b) No trustee hereunder shall be held personally liable because of any act
or omission of any other trustee hereunder and such appointment shall not, and
shall not be deemed to, constitute any such separate trustee or co-trustee as
agent of the Trustee;
(c) The Trustee may at any time accept the resignation of or remove any
separate trustee or co-trustee; and
(d) The Master Servicer, and not the Trustee, shall be liable for the
payment of reasonable compensation, reimbursement and indemnification to any
such separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be deemed
to have been given to each of the separate trustees and co-trustees, when and as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to the
Master Servicer and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the Trustee
its agent or attorney-in-fact, with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
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Section 8.11 Tax Matters.
It is intended that the assets with respect to which one or more REMIC
elections pertaining to the Trust Fund is to be made, as set forth in the
Preliminary Statement, shall constitute, and that the conduct of matters
relating to such assets shall be such as to qualify such assets as, a "real
estate mortgage investment conduit" as defined in and in accordance with the
REMIC Provisions. In furtherance of such intention, the Trustee covenants and
agrees that it shall act as agent (and the Trustee is hereby appointed to act as
agent) on behalf of each REMIC created under this Agreement and that in such
capacity it shall:
(a) prepare and file in a timely manner, a U.S. Real Estate Mortgage
Investment Conduit Income Tax Return (Form 1066 or any successor form adopted by
the Internal Revenue Service) with respect to each REMIC created hereunder and
prepare and file with the Internal Revenue Service and applicable state or local
tax authorities income tax or information returns for each taxable year with
respect to each REMIC described in the Preliminary Statement, containing such
information and at the times and in the manner as may be required by the Code or
state or local tax laws, regulations, or rules, and furnish to
Certificateholders the schedules, statements or information at such times and in
such manner as may be required thereby;
(b) within thirty days of the Closing Date, furnish to the Internal Revenue
Service, on Forms 8811 or as otherwise may be required by the Code, the name,
title, address, and telephone number of the person that the holders of the
Certificates may contact for tax information relating thereto, together with
such additional information as may be required by such Form, and update such
information at the time or times in the manner required by the Code;
(c) make an election that each REMIC created under this Agreement be
treated as a REMIC on the federal tax return for its first taxable year (and, if
necessary, under applicable state law);
(d) prepare and forward to the Certificateholders and to the Internal
Revenue Service and, if necessary, state tax authorities, all information
returns and reports as and when required to be provided to them in accordance
with the REMIC Provisions, including the calculation of any original issue
discount using the Prepayment Assumption (as defined in the Prospectus
Supplement);
(e) provide information necessary for the computation of tax imposed on the
transfer of a Residual Certificate to a Person that is not a Permitted
Transferee, or an agent (including a broker, nominee or other middleman) of a
Person that is not a Permitted Transferee, or a pass-through entity in which a
Person that is not a Permitted Transferee is the record holder of an interest
(the reasonable cost of computing and furnishing such information may be charged
to the Person liable for such tax);
(f) to the extent that they are under its control, conduct matters relating
to such assets at all times that any Certificates are outstanding so as to
maintain the status as any REMIC created under this Agreement under the REMIC
Provisions;
(g) not knowingly or intentionally take any action or omit to take any
action that would cause the termination of the REMIC status of any REMIC created
under this Agreement;
(h) pay, from the sources specified in the last paragraph of this Section
8.11, the amount of any federal or state tax, including prohibited transaction
taxes as described below, imposed on any REMIC before its termination when and
as the same shall be due and payable (but such obligation shall not prevent the
Trustee or any other appropriate Person from contesting any such tax in
appropriate proceedings and shall not prevent the Trustee from withholding
payment of such tax, if permitted by law, pending the outcome of such
proceedings);
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(i) ensure that federal, state or local income tax or information returns
shall be signed by the Trustee or such other person as may be required to sign
such returns by the Code or state or local laws, regulations or rules;
(j) maintain records relating to each REMIC created under this Agreement,
including the income, expenses, assets, and liabilities thereof and the fair
market value and adjusted basis of the assets determined at such intervals as
may be required by the Code, as may be necessary to prepare the foregoing
returns, schedules, statements or information; and
(k) as and when necessary and appropriate, represent each REMIC created
under this Agreement in any administrative or judicial proceedings relating to
an examination or audit by any governmental taxing authority, request an
administrative adjustment as to any taxable year of such REMIC, enter into
settlement agreements with any governmental taxing agency, extend any statute of
limitations relating to any tax item of such REMIC, and otherwise act on behalf
of such REMIC in relation to any tax matter or controversy involving it.
To enable the Trustee to perform its duties under this Agreement, the
Depositor shall provide to the Trustee within ten days after the Closing Date
all information or data that the Trustee requests in writing and determines to
be relevant for tax purposes to the valuations and offering prices of the
Certificates, including the price, yield, prepayment assumption, and projected
cash flows of the Certificates and the Mortgage Loans. Thereafter, the Depositor
shall provide to the Trustee promptly upon written request therefor any
additional information or data that the Trustee may, from time to time,
reasonably request to enable the Trustee to perform its duties under this
Agreement. The Depositor hereby indemnifies the Trustee for any losses,
liabilities, damages, claims, or expenses of the Trustee arising from any errors
or miscalculations of the Trustee that result from any failure of the Depositor
to provide, or to cause to be provided, accurate information or data to the
Trustee on a timely basis.
If any tax is imposed on "prohibited transactions" (as defined in section
860F(a)(2) of the Code) of any REMIC created under this Agreement, on the "net
income from foreclosure property" of any REMIC created under this Agreement as
defined in section 860G(c) of the Code, on any contribution to any REMIC created
under this Agreement after the Startup Day pursuant to section 860G(d) of the
Code, or any other tax is imposed, including any minimum tax imposed on any
REMIC created hereunder pursuant to sections 23153 and 24874 of the California
Revenue and Taxation Code, if not paid as otherwise provided for herein, the tax
shall be paid by (i) the Trustee, if any such other tax arises out of or results
from negligence of the Trustee in the performance of any of its obligations
under this Agreement, (ii) the Master Servicer or the Transferor, in the case of
any such minimum tax, if such tax arises out of or results from a breach by the
Master Servicer or Transferor of any of their obligations under this Agreement,
(iii) the Transferor, if any such tax arises out of or results from the
Transferor's obligation to repurchase a Mortgage Loan pursuant to Section 2.02
or 2.03, or (iv) in all other cases, or if the Trustee, the Master Servicer, or
the Transferor fails to honor its obligations under the preceding clauses (i),
(ii), or (iii), any such tax will be paid with amounts otherwise to be
distributed to the Certificateholders, as provided in Section 3.09(b).
Section 8.12 Periodic Filings.
Beginning with the first Distribution Date, the Trustee, pursuant to
written instructions of the Depositor (which instructions shall be deemed to be
this Section 8.12), shall prepare and file all periodic reports required under
the Exchange Act in conformity with the terms of the relief granted to issuers
similar to the Trust Fund. The Trustee shall execute the Form 8-Ks pursuant to a
limited power of attorney from the Depositor which shall terminate upon written
notice from the Depositor or the termination of this Agreement. In connection
with the preparation and filing of such periodic reports, the
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Depositor and the Master Servicer shall timely provide to the Trustee all
material information available to them that is required to be included in such
reports and not known to them to be in the possession of the Trustee and such
other information as the Trustee reasonably may request from either of them
(including any certification required pursuant to Section 3.02(a) of the
Xxxxxxxx-Xxxxx Act of 2002 and any regulations promulgated thereunder (the
"Required Certifications")) and otherwise reasonably shall cooperate with the
Trustee. The Depositor shall execute the Form 10-Ks and the Required
Certifications. The Trustee shall have no responsibility for making any of the
Required Certifications; provided, however, that upon the request of the Master
Servicer or the Depositor in connection with the delivery of the Required
Certifications on behalf of the Trust Fund, the Trustee shall furnish to the
Master Servicer or the Depositor, as applicable, a certificate signed by an
officer of the Trustee (the "Trustee Certification"), which is attached as
Exhibit O to this Agreement. The Trustee shall indemnify and hold harmless the
Master Servicer and the Depositor, their respective officers and directors from
and against any and all losses, claims, expenses, damages or liabilities, as and
when such losses, claims, expenses, damages or liabilities are incurred, insofar
as such losses, claims, expenses, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement of any material
fact contained in the Trustee Certification. The Trustee shall prepare the Form
10-K and provide such to the Depositor by March 10th of each year, commencing in
2005. The Depositor shall execute such Form 10-K upon its receipt and shall
provide the original of such executed Form 10-K to the Trustee no later than
five Business Days following its receipt from the Trustee.
Prior to January 30th of the first year in which the Trustee is able to do
so under applicable law, the Trustee shall file under the Exchange Act a Form
15D Suspension Notification with respect to the Trust Fund. 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.
The Trustee and any director, officer, employee, or agent of the Trustee
shall be indemnified by the Master Servicer against any loss, liability, or
expense (including reasonable attorney's fees) incurred in connection with any
claim or legal action relating to the preparation of the Required Certification,
other than any loss, liability or expense incurred because of willful
misfeasance, bad faith or negligence in the performance of any of the Trustee's
duties under this Agreement or incurred by reason of any action of the Trustee
taken at the direction of the Certificateholders under this Agreement. This
indemnity shall survive the termination of this Agreement or the resignation or
removal of the Trustee under this Agreement.
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ARTICLE NINE
TERMINATION
Section 9.01 Termination upon Liquidation or Purchase of the Mortgage
Loans.
Subject to Section 9.03, the obligations and responsibilities of the
Depositor, the Master Servicer, and the Trustee created hereby 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 a Delinquent Mortgage Loan or REO Property) plus one
month's accrued interest thereon at the applicable Adjusted Mortgage Rate
less any amounts collected by the Master Servicer representing principal
and interest due after the related Due Date,
(ii) the lesser of (x) the appraised value of any Delinquent Mortgage
Loan or REO Property as determined by the higher of two appraisals
completed by two independent appraisers selected by the Master Servicer at
the expense of the Master Servicer and (y) the Stated Principal Balance of
each such Delinquent Mortgage Loan or Mortgage Loan related to such REO
Property, in each case plus accrued and unpaid interest thereon at the
applicable Adjusted Net Mortgage Rate and
(iii) any costs and damages incurred by the Trust Fund in connection
with any violation by each Mortgage Loan of any predatory or abusive
lending law and
(b) the later of
(i) the maturity or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan and the disposition of all REO Property
and
(ii) the distribution to Certificateholders of all amounts required to
be distributed to them pursuant to this Agreement. In no event shall the
trusts created hereby continue beyond the expiration of 21 years from the
death of the survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. James's, living on the
date of this Agreement.
The right to purchase all Mortgage Loans and REO Properties pursuant to
clause (a) above shall be conditioned upon the aggregate Stated Principal
Balance of those Mortgage Loans, at the time of any such repurchase, aggregating
less than ten percent (10%) of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date. The Master Servicer shall effect any such
repurchase by depositing the purchase price, as calculated above, as of the
month preceding the date on which such purchase price shall be distributed to
Certificateholders into the Certificate Account.
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
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Section 9.01, no later than the 15th day of the month preceding the month of the
final Distribution Date 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 last day of the month next preceding the month of such final
distribution. Any such notice shall specify (a) the Distribution Date upon which
final distribution on the Certificates will be made upon presentation and
surrender of Certificates at the office therein designated, (b) the amount of
such final distribution, (c) the location of the office or agency at which such
presentation and surrender must be made, and (d) that the Record Date otherwise
applicable to the Distribution Date is not applicable, distributions being made
only upon presentation and surrender of the Certificates at the office therein
specified. The Master Servicer will give such notice to each Rating Agency at
the time such notice is given to Certificateholders.
If this notice is given, the Master Servicer shall cause all funds in the
Certificate Account to be remitted to the Trustee for deposit in the
Distribution Account on the Business Day before the applicable Distribution Date
in an amount equal to the final distribution in respect of the Certificates.
Upon such final deposit with respect to the Trust Fund and the receipt by the
Trustee of a Request for Release therefor, the Trustee shall promptly release to
the Master Servicer the Mortgage Files for the Mortgage Loans.
Upon presentation and surrender of the Certificates, the Trustee shall
cause to be distributed to the Certificateholders of each Class, in each case on
the final Distribution Date and in the order set forth in Section 4.02, in
proportion to their respective Percentage Interests, with respect to
Certificateholders of the same Class, an amount equal to (i) as to each Class of
Regular Certificates, its Certificate Balance plus for each such Class accrued
interest thereon (or on their Notional Amount, if applicable) in the case of an
interest-bearing Certificate and (ii) as to the Residual Certificates, any
amount remaining on deposit in the Distribution Account (other than the amounts
retained to meet claims) after application pursuant to clause (i) above.
Notwithstanding the reduction of the Certificate Balance of any Class of
Certificates to zero, such Class will be outstanding hereunder solely for the
purpose of receiving distributions and for no other purpose until the
termination of the respective obligations and responsibilities of the Depositor,
the Master Servicer and the Trustee hereunder in accordance with Article Nine.
The foregoing provisions are intended to distribute to each Class of Regular
Certificates any accrued and unpaid interest and principal to which they are
entitled based on the Pass-Through Rates and actual Class Certificate Balances
or Notional Amounts set forth in the Preliminary Statement upon liquidation of
the Trust Fund.
If any affected Certificateholder does not surrender its Certificates for
cancellation within six months after the date specified in the above mentioned
written notice, the Trustee shall give a second written notice to the remaining
Certificateholders to surrender their Certificates for cancellation and receive
the final distribution with respect thereto. If within six months after the
second notice all the applicable Certificates shall not have been surrendered
for cancellation, the Trustee may take appropriate steps, or may appoint an
agent to take appropriate steps, to contact the remaining Certificateholders
concerning surrender of their Certificates, and the cost thereof shall be paid
out of the funds and other assets which remain a part of the Trust Fund. If
within one year after the second notice all Certificates shall not have been
surrendered for cancellation, then the Holders of the Class A-R Certificates
shall be entitled to all unclaimed funds and other assets of the Trust Fund
which remain subject hereto.
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Section 9.03 Additional Termination Requirements.
(a) If the Master Servicer exercises its purchase option with respect to
the Mortgage Loans as provided in Section 9.01, the Trust Fund shall be
terminated in accordance with the following additional requirements, unless the
Trustee has been supplied with an Opinion of Counsel, at the expense of the
Master Servicer, to the effect that the failure to comply with the requirements
of this Section 9.03 will not (i) result in the imposition of taxes on
"prohibited transactions" on any REMIC created hereunder as defined in section
860F of the Code, or (ii) cause any REMIC created under this Agreement to fail
to qualify as a REMIC at any time that any Certificates are outstanding:
(b) The Trustee shall sell all of the assets of the Trust Fund to the
Master Servicer, and, within 90 days of such sale, shall distribute to the
Certificateholders the proceeds of such sale in complete liquidation of each
REMIC created under this Agreement.
(c) The Trustee shall attach a statement to the final federal income tax
return for each REMIC created under this Agreement stating that pursuant to
Treasury Regulation ss. 1.860F-1, the first day of the 90-day liquidation period
for such REMIC was the date on which the Trustee sold the assets of the Trust
Fund to the Master Servicer.
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ARTICLE TEN
MISCELLANEOUS PROVISIONS
Section 10.01 Amendment.
This Agreement may be amended from time to time by the Depositor, the
Master Servicer and the Trustee without the consent of any of the
Certificateholders (i) to cure any ambiguity or mistake, (ii) to correct any
defective provision in this Agreement or to supplement any provision in this
Agreement which may be inconsistent with any other provision in this Agreement,
(iii) to conform this Agreement to the Prospectus Supplement, (iv) to add to the
duties of the Depositor, the Transferor or the Master Servicer, (v) to modify,
alter, amend, add to or rescind any of the terms or provisions contained in this
Agreement to comply with any rules or regulations promulgated by the Securities
and Exchange Commission from time to time, (vi) to add any other provisions with
respect to matters or questions arising under this Agreement, or (vii) to
modify, alter, amend, add to, or rescind any of the terms or provisions
contained in this Agreement.
No action pursuant to clauses (v), (vi) or (vii) above may, as evidenced by
an Opinion of Counsel (which Opinion of Counsel shall not be an expense of the
Trustee or the Trust Fund), adversely affect in any material respect the
interests of any Certificateholder. The amendment shall not be deemed to
adversely affect in any material respect the interests of the Certificateholders
if the Person requesting the amendment obtains a letter from each Rating Agency
stating that the amendment would not result in the downgrading, qualification or
withdrawal of the respective ratings then assigned to the Certificates. Any such
letter in and of itself will not represent a determination as to the materiality
of any amendment and will represent a determination only as to the credit issues
affecting any rating. Each party to this Agreement agrees that it will cooperate
with each other party in amending this Agreement pursuant to clause (v) above.
The Trustee, the Depositor, and the Master Servicer also may at any time
and from time to time amend this Agreement without the consent of the
Certificateholders to modify, eliminate or add to any of its provisions to the
extent necessary or helpful to (i) maintain the qualification of any REMIC
created under this Agreement as a REMIC under the Code, (ii) avoid or minimize
the risk of the imposition of any tax on any REMIC created under this Agreement
pursuant to the Code that would be a claim at any time before the final
redemption of the Certificates, or (iii) comply with any other requirements of
the Code, if the Trustee has been provided an Opinion of Counsel, which opinion
shall be an expense of the party requesting such opinion but in any case shall
not be an expense of the Trustee or the Trust Fund, to the effect that the
action is necessary or helpful for one of the foregoing purposes.
This Agreement may also be amended from time to time by the Depositor, the
Master Servicer, and the Trustee with the consent of the Holders of Certificates
evidencing Percentage Interests aggregating not less than 51% of each Class of
Certificates adversely affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Agreement or of modifying in any manner the rights of the Holders of
Certificates. No amendment shall
(i) reduce in any manner the amount of, or delay the timing of, payments
required to be distributed on any Certificate without the consent of the Holder
of such Certificate,
(ii) amend, modify, add to, rescind, or alter in any respect Section 10.13,
notwithstanding any contrary provision of this Agreement, without the consent of
the Holders of Certificates evidencing Percentage Interests aggregating not less
than 66 2/3% (provided, however, that no Certificates held by
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the Transferor, the Depositor or any Affiliate thereby shall be given effect for
the purpose of calculating any such aggregation of Percentage Interests), or
(iii) reduce the aforesaid percentages of Certificates the Holders of which
are required to consent to any such amendment, without the consent of the
Holders of all such Certificates then outstanding.
Notwithstanding any contrary provision of this Agreement, the Trustee shall
not consent to any amendment to this Agreement unless (i) it shall have first
received an Opinion of Counsel, which opinion shall not be an expense of the
Trustee or the Trust Fund, to the effect that such amendment will not cause the
imposition of any tax on any REMIC created under this Agreement or the
Certificateholders or cause any REMIC created hereunder to fail to qualify as a
REMIC at any time that any Certificates are outstanding and (ii) because the
Trust Fund is required to be a Qualifying Special Purpose Entity (as that term
is defined in Statement of Financial Accounting Standards No. 140 ("SFAS 140"),
in order for the Transferor to continue to account for the transfer of the
Mortgage Loans under this Agreement as a sale under SFAS 140, prior to the
parties hereto entering into such an amendment, the Trustee shall receive an
Officer's Certificate, which shall not be an expense of the Trustee or the Trust
Fund, to the effect that such amendment would not "significantly change" (within
the meaning of SFAS 140) the permitted activities of the Trust Fund so as to
cause the Trust Fund to fail to qualify as a Qualifying Special Purpose Entity.
Promptly after the execution of any amendment to this Agreement requiring
the consent of Certificateholders, the Trustee shall furnish written
notification of the substance or a copy of such amendment to each
Certificateholder and each Rating Agency.
It shall not be necessary for the consent of Certificateholders under this
Section 10.01 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee to enter into an
amendment without receiving an Opinion of Counsel (which Opinion shall not be an
expense of the Trustee or the Trust Fund), satisfactory to the Trustee that (i)
such amendment is permitted and is not prohibited by this Agreement and that all
requirements for amending this Agreement have been complied with; and (ii)
either (A) the amendment does not adversely affect in any material respect the
interests of any Certificateholder or (B) the conclusion set forth in the
preceding clause (A) is not required to be reached pursuant to this Section
10.01.
Section 10.02 Recordation of Agreement; Counterparts.
This Agreement is subject to recordation in all appropriate public offices
for real property records in all the counties or other comparable jurisdictions
in which any or all of the properties subject to the Mortgages are situated, and
in any other appropriate public recording office or elsewhere, such recordation
to be effected by the 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
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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 of the
Trust Fund by the Depositor to the Trustee be, and be construed as, an absolute
sale thereof. It is, further, not the intention of the parties that such
conveyance be deemed a pledge thereof. However, if, notwithstanding the intent
of the parties, the assets are held to be the property of the Depositor, or if
for any other reason this Agreement is held or deemed to create a security
interest in such assets, then (i) this Agreement shall be deemed to be a
security agreement within the meaning of the UCC and (ii) the conveyances
provided for in this Agreement shall be deemed to be an assignment and a grant
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 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 4.06;
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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 MBS, Inc., 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxx Xxxxxxx; (b) in the case of the Master Servicer or the
Transferor, IndyMac Bank, F.S.B., 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx
00000, Attention: Xxxxxxx X. Xxxxx or such other address as may be hereafter
furnished to the Depositor and the Trustee by the Master Servicer in writing;
(c) in the case of the Trustee to the Corporate Trust Office, Deutsche Bank
National Trust Company, 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx
00000-0000, Attention: Mortgage Administration IN04AB, Series 2004-AR11, 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 in this Agreement,
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 by this Agreement, nor entitle
such Certificateholder's legal representative or heirs to claim an accounting or
to take any action or commence any proceeding in any court for a petition or
winding up of the trust created hereby, or otherwise affect the rights,
obligations and liabilities of the parties to this Agreement or any of them.
No Certificateholder shall have any right to vote (except as provided in
this Agreement) or in any manner otherwise control the operation and management
of the Trust Fund, or the obligations of the parties to this Agreement, nor
shall anything herein set forth or contained in the terms of the Certificates be
construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party because of any action taken by the parties to
this Agreement pursuant to any provision of this Agreement.
No Certificateholder shall have any right by virtue or by availing itself
of any provisions of this Agreement to institute any suit, action or proceeding
in equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of an Event
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of Default and of the continuance thereof, as provided in this Agreement, and
unless the Holders of Certificates evidencing not less than 25% of the Voting
Rights evidenced by the Certificates shall also have made written request to the
Trustee to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses, and liabilities to be incurred therein
or thereby, and the Trustee, for 60 days after its receipt of such notice,
request and offer of indemnity shall have neglected or refused to institute any
such action, suit or proceeding; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain or seek
to obtain priority over or preference to any other such Holder or to enforce any
right under this Agreement, except in the manner herein provided and for the
common benefit of all Certificateholders. For the protection and enforcement of
this Section 10.08, each Certificateholder and the Trustee shall be entitled to
any relief that can be given either at law or in equity.
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 the Master Servicer's
normal business hours, to examine all the books of account, records, reports and
other papers of the Master Servicer relating to the Mortgage Loans, to make
copies and extracts therefrom, to cause such books to be audited by independent
certified public accountants selected by the Depositor or the Trustee and to
discuss its affairs, finances and accounts relating to the Mortgage Loans with
its officers, employees and independent public accountants (and by this
provision the 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 party requesting such inspection; all other
such expenses shall be borne by the Master Servicer or the Subservicer.
Section 10.10 Certificates Nonassessable and Fully Paid.
It is the intention of the Depositor that Certificateholders shall not be
personally liable for obligations of the Trust Fund, that the interests in the
Trust Fund represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof by the
Trustee pursuant to this Agreement, are and shall be deemed fully paid.
Section 10.11 Official Record.
The Transferor agrees that this Agreement is and shall remain at all times
before the time at which this Agreement terminates an official record of the
Transferor as referred to in Section 13(e) of the Federal Deposit Insurance Act.
Section 10.12 Protection of Assets.
(a) Except for transactions and activities entered into in connection with
the securitization that is the subject of this Agreement, the trust created by
this Agreement is not authorized and has no power to:
(1) borrow money or issue debt;
(2) merge with another entity, reorganize, liquidate or sell assets;
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(3) engage in any business or activities.
(b) Each party to this Agreement agrees that it will not file an
involuntary bankruptcy petition against the Trustee or the Trust Fund or
initiate any other form of insolvency proceeding until after the Certificates
have been paid in full.
Section 10.13 Qualifying Special Purpose Entity.
Notwithstanding any contrary provision of this Agreement, the Trust Fund
shall not hold any property or engage in any activity that would disqualify the
Trust Fund from being a qualifying special purpose entity under generally
accepted accounting principles.
* * * * * *
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IN WITNESS WHEREOF, the Depositor, the Trustee, and the Transferor and
Master Servicer have caused their names to be signed hereto by their respective
officers thereunto duly authorized as of the day and year first above written.
INDYMAC MBS, INC.
as Depositor
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By: /s/ Xxxxx Xxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxx
Title: Associate
By: /s/ Xxxx Xxxxxx
-----------------------------------------
Name: Xxxx Xxxxxx
Title: Associate
INDYMAC BANK, F.S.B.
as Transferor and Master Servicer
By: /s/ Xxxx Xxxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxxx
Title: Senior Vice President
STATE OF CALIFORNIA )
: ss.:
COUNTY OF Los Angeles )
On this 24th day of November, 2004, before me, personally appeared Xxxxx
Xxxxxxxx, known to me to be a Vice President of IndyMac MBS, Inc., one of the
entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of said entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxxxxx X. Xxxx
--------------------------------------------
Notary Public
[NOTARIAL SEAL]
1
STATE OF CALIFORNIA )
: ss.:
COUNTY OF Orange )
On this 22th day of November, 2004, before me, personally appeared Xxxxx
Xxxxxx and Xxxx Xxxxxx, known to me to be an Associate and an Associate,
respectively, of Deutsche Bank National Trust Company, one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxx Xxxx Xxxxxxxx
Notary Public
`NOTARIAL SEAL]
2
STATE OF CALIFORNIA )
: ss.:
COUNTY OF Los Angeles )
On this ___ day of November, 2004, before me, personally appeared
_____________, known to me to be ------------------ of IndyMac Bank, F.S.B., one
of the entities that executed the within instrument, and also known to me to be
the person who executed it on behalf of said entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
------------------------------------
Notary Public
[NOTARIAL SEAL]
3
SCHEDULE I
Mortgage Loan Schedule [Delivered at Closing to Trustee]
S-I-1
SCHEDULE II
IndyMac MBS, Inc. Mortgage Pass-Through Certificates, Series 2004-AR11
Representations and Warranties of the Transferor/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. Capitalized terms used but not otherwise defined in this
Schedule II shall have the meanings assigned thereto in the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement") relating to the
above-referenced Series, among IndyMac, as transferor and master servicer,
IndyMac MBS, Inc., as depositor, and Deutsche Bank National Trust Company, as
trustee.
(1) IndyMac is duly organized as a federally insured savings bank and
is validly existing and in good standing under the laws of the United
States of America and is duly authorized and qualified to transact any
business contemplated by the Pooling and Servicing Agreement to be
conducted by IndyMac in any state in which a Mortgaged Property is located
or is otherwise not required under applicable law to effect such
qualification and, in any event, is in compliance with the doing business
laws of any such state, to the extent necessary to ensure its ability to
enforce each Mortgage Loan, to service the Mortgage Loans in accordance
with the Pooling and Servicing Agreement and to perform any of its other
obligations under the Pooling and Servicing Agreement in accordance with
the terms thereof.
(2) IndyMac has the full corporate power and authority to sell and
service each Mortgage Loan, and to execute, deliver and perform, and to
enter into and consummate the transactions contemplated by the Pooling and
Servicing Agreement and has duly authorized by all necessary corporate
action on the part of IndyMac the execution, delivery and performance of
the Pooling and Servicing Agreement; and the Pooling and Servicing
Agreement, assuming the due authorization, execution and delivery thereof
by the other parties thereto, constitutes a legal, valid and binding
obligation of IndyMac, enforceable against IndyMac in accordance with its
terms, except that (a) the enforceability thereof may be limited by
bankruptcy, insolvency, moratorium, receivership and other similar laws
relating to creditors' rights generally and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought.
(3) The execution and delivery of the Pooling and Servicing Agreement
by IndyMac, the sale and servicing of the Mortgage Loans by IndyMac under
the Pooling and Servicing Agreement, the consummation of any other of the
transactions contemplated by the Pooling and Servicing Agreement, and the
fulfillment of or compliance with the terms thereof are in the ordinary
course of business of IndyMac and will not (A) result in a material breach
of any term or provision of the charter or by-laws of IndyMac or (B)
materially conflict with, result in a material breach, violation or
acceleration of, or result in a material default under, any other material
agreement or instrument to which IndyMac is a party or by which it may be
bound, or (C) constitute a material violation of any statute, order or
regulation applicable to IndyMac of any court, regulatory body,
administrative agency or
S-II-1
governmental body having jurisdiction over IndyMac (including the OTS, the
Federal Deposit Insurance Corporation or any other governmental entity
having regulatory authority over IndyMac); and IndyMac is not in breach or
violation of any material indenture or other material agreement or
instrument, or in violation of any statute, order or regulation of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over it (including the OTS, the Federal Deposit Insurance
Corporation or any other governmental entity having regulatory authority
over IndyMac) which breach or violation may materially impair IndyMac's
ability to perform or meet any of its obligations under the Pooling and
Servicing Agreement.
(4) IndyMac is an approved servicer of conventional mortgage loans for
FNMA or FHLMC or is a mortgagee approved by the Secretary of Housing and
Urban Development pursuant to Sections 203 and 211 of the National Housing
Act.
(5) No litigation is pending or, to the best of IndyMac's knowledge,
threatened against IndyMac that would prohibit the execution or delivery
of, or performance under, the Pooling and Servicing Agreement by IndyMac.
(6) IndyMac is a member of MERS in good standing, and will comply in
all material respects with the rules and procedures of MERS in connection
with the servicing of the MERS Mortgage Loans for as long as such Mortgage
Loans are registered with MERS.
(7) Notwithstanding any federal or state law to the contrary, the
Master Servicer shall not impose such Prepayment Charge at any time when
the mortgage is accelerated as a result of the borrower's default in making
the scheduled payments.
(8) The Master Servicer will transmit full-file credit reporting data
for each Mortgage Loan pursuant to Xxxxxx Xxx Guide Announcement 95-19 and
that for each Mortgage Loan, Servicer agrees it shall report one of the
following statuses each month as follows: new origination, current,
delinquent (30-, 60-, 90-days, etc.), foreclosed, or charged-off.
S-II-2
SCHEDULE III
IndyMac MBS, Inc.
Mortgage Pass-Through Certificates,
Series 2004-AR11
Representations and Warranties as to the Mortgage Loans
IndyMac Bank, F.S.B. ("IndyMac") hereby makes the representations and
warranties set forth in this Schedule III to the Depositor and the Trustee, as
of the Closing Date or if so specified in this Schedule III, as of the Cut-off
Date with respect to each Mortgage Loan. Capitalized terms used but not
otherwise defined in this Schedule III shall have the meanings assigned to them
in the Pooling and Servicing Agreement (the "Pooling and Servicing Agreement")
relating to the above-referenced Series, among IndyMac, as transferor and master
servicer, IndyMac MBS, Inc., as depositor, and Deutsche Bank National Trust
Company, 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.
(2) All regularly scheduled monthly payments due with respect to each
Mortgage Loan up to and including the Due Date before the Cut-off Date have
been made; and as of the Cut-off Date, no Mortgage Loan had a regularly
scheduled monthly payment that was 60 or more days Delinquent during the
twelve months before the Cut-off Date.
(3) With respect to any Mortgage Loan that is not a Cooperative Loan,
each Mortgage is a valid and enforceable first lien on the Mortgaged
Property subject only to (a) the lien of nondelinquent current real
property taxes and assessments and liens or interests arising under or as a
result of any federal, state or local law, regulation or ordinance relating
to hazardous wastes or hazardous substances and, if the related Mortgaged
Property is a unit in a condominium project or planned unit development,
any lien for common charges permitted by statute or homeowner association
fees, (b) covenants, conditions and restrictions, rights of way, easements
and other matters of public record as of the date of recording of such
Mortgage, such exceptions appearing of record being generally acceptable to
mortgage lending institutions in the area wherein the related Mortgaged
Property is located or specifically reflected in the appraisal made in
connection with the origination of the related Mortgage Loan, and (c) other
matters to which like properties are commonly subject which do not
materially interfere with the benefits of the security intended to be
provided by such Mortgage.
(4) Immediately before the assignment of the Mortgage Loans to the
Trust Fund, the Depositor had good title to, and was the sole owner of,
each Mortgage Loan free and clear of any pledge, lien, encumbrance or
security interest and had full right and authority, subject to no interest
or participation of, or agreement with, any other party, to sell and assign
the same pursuant to the Pooling and Servicing Agreement.
(5) As of the date of origination of each Mortgage Loan, there was no
delinquent tax or assessment lien against the related Mortgaged Property.
(6) There is no valid offset, defense or counterclaim to any Mortgage
Note or Mortgage, including the obligation of the Mortgagor to pay the
unpaid principal of or interest on such Mortgage Note.
S-III-1
(7) There are no mechanics' liens or claims for work, labor or
material affecting any Mortgaged Property which are or may be a lien prior
to or equal with, the lien of such Mortgage, except those which are insured
against by the title insurance policy referred to in item (11) below.
(8) To the best of the Transferor'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 Transferor makes
no representation) so as to affect adversely the value of the related
Mortgaged Property as security for the Mortgage Loan.
(9) Each Mortgage Loan at origination complied in all material
respects with applicable local, state and federal laws and regulations,
including usury, equal credit opportunity, real estate settlement
procedures, truth-in-lending, and disclosure laws, or any noncompliance
does not have a material adverse effect on the value of the related
Mortgage Loan.
(10) The Transferor 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 and each such policy is valid and
remains in full force and effect.
(12) Each Mortgage Loan was originated (within the meaning of Section
3(a)(41) of the Securities Exchange Act of 1934, as amended) by an entity
that satisfied at the time of origination the requirements of Section
3(a)(41) of the Securities Exchange Act of 1934, as amended.
(13) To the best of the Transferor's knowledge, all of the
improvements which were included for the purpose of determining the
Appraised Value of the Mortgaged Property lie wholly within the boundaries
and building restriction lines of such property, and no improvements on
adjoining properties encroach upon the Mortgaged Property, unless such
failure to be wholly within such boundaries and restriction lines or such
encroachment, as the case may be, does not have a material effect on the
value of the Mortgaged Property.
(14) To the best of the Transferor'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
Transferor's knowledge, all inspections, licenses and certificates required
to be made or issued with respect to all occupied portions of the Mortgaged
Property and, with respect to the use and occupancy of the same, including
certificates of occupancy and fire underwriting certificates, have been
made or obtained from the appropriate authorities, unless the lack thereof
would not have a material adverse effect on the value of the Mortgaged
Property.
S-III-2
(15) The Mortgage Note and the related Mortgage are genuine, and each
is the legal, valid and binding obligation of the maker thereof,
enforceable in accordance with its terms and under applicable law.
(16) The proceeds of the Mortgage Loan have been fully disbursed and
there is no requirement for future advances thereunder.
(17) The related Mortgage contains customary and enforceable
provisions which render the rights and remedies of the holder thereof
adequate for the realization against the Mortgaged Property of the benefits
of the security, including, (i) in the case of a Mortgage designated as a
deed of trust, by trustee's sale, and (ii) otherwise by judicial
foreclosure.
(18) With respect to each Mortgage constituting a deed of trust, a
trustee, duly qualified under applicable law to serve as such, has been
properly designated and currently so serves and is named in such Mortgage,
and no fees or expenses are or will become payable by the
Certificateholders to the trustee under the deed of trust, except in
connection with a trustee's sale after default by the Mortgagor.
(19) At the Cut-off Date, the improvements upon each Mortgaged
Property are covered by a valid and existing hazard insurance policy with a
generally acceptable carrier that provides for fire and extended coverage
and coverage for such other hazards as are customarily required by
institutional single family mortgage lenders in the area where the
Mortgaged Property is located, and the Transferor 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 Transferor to
repurchase or substitute for such affected Mortgage Loan or Loans so long
as the Master Servicer maintains a blanket policy pursuant to the second
paragraph of Section 3.10(a) of the Pooling and Servicing Agreement.
(20) If at the time of origination of each Mortgage Loan, the related
Mortgaged Property was in an area then identified in the Federal Register
by the Federal Emergency Management Agency as having special flood hazards,
a flood insurance policy in a form meeting the then-current requirements of
the Flood Insurance Administration is in effect with respect to the
Mortgaged Property with a generally acceptable carrier.
(21) To the best of the Transferor'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 Transferor'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 Transferor 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.
S-III-3
(25) Each Mortgage Loan was selected from among the outstanding
adjustable rate one- to four-family mortgage loans in the Transferor's
portfolio 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) None of the Mortgage Loans are Cooperative Loans.
(27) [Reserved].
(28) None of the Mortgage Loans is a "high cost" loan, "covered" loan
or any other similarly designated loan as defined under any state, local or
federal law, as defined by applicable predatory and abusing lending laws.
(29) Each Mortgage Loan at the time it was made complied in all
material respects with applicable local, state, and federal laws,
including, but not limited to, all applicable predatory and abusive lending
laws.
(30) [Reserved].
(31) No proceeds from any Mortgage Loan underlying the Certificates
were used to finance single-premium credit insurance policies.
(32) None of the Mortgage Notes related to the Mortgage Loans impose a
Prepayment Charge on the related Mortgage Loan for a term in excess of five
years from the origination of the Mortgage Loan.
(34) No Mortgage Loan is subject to the requirements of the Home
Ownership and Equity Protection Act of 1994.
(35) No borrower was encouraged or required to select a Mortgage Loan
product offered by the Mortgage Loan's originator that is a higher cost
product designed for less creditworthy borrowers, unless at the time of the
Mortgage Loan's origination, such borrower did not qualify taking into
account credit history and debt-to-income ratios, for a lower-cost credit
product then offered by the Transferor or any affiliate of the Transferor.
If, at the time of loan application, the borrower may have qualified for a
lower-cost credit product then offered by any mortgage lending affiliate of
the Transferor, the Transferor referred the borrower's application to such
affiliate for underwriting consideration.
(36) The methodology used in underwriting the extension of credit for
each Mortgage Loan employs objective mathematical principles that relate
the borrower's income, assets and liabilities to the proposed payment and
such underwriting methodology does not rely on the extent of the borrower's
equity in the collateral as the principal determining factor in approving
such credit extension. Such underwriting methodology confirmed that at the
time of origination (application/approval) the borrower had a reasonable
ability to make timely payments on the Mortgage Loan.
(37) With respect to any Mortgage Loan that contains a provision
permitting imposition of a premium upon a prepayment prior to maturity: (i)
prior to the Mortgage Loan's origination,
S-III-4
the borrower agreed to such premium in exchange for a monetary benefit,
including but not limited to an interest rate or fee reduction, (ii) prior
to the Mortgage Loan's origination, the borrower was offered the option of
obtaining a mortgage loan that did not require payment of such a premium
and (iii) the Prepayment Charge is disclosed to the borrower in the loan
documents pursuant to applicable state and federal law.
(38) No borrower was required to purchase any credit life, disability,
accident or health insurance product as a condition of obtaining the
extension of credit. No borrower obtained a prepaid single-premium credit
life, disability, accident or health insurance policy in connection with
the origination of the Mortgage Loan; no proceeds from any Mortgage Loan
were used to purchase single premium credit insurance policies as part of
the origination of, or as a condition to closing, such Mortgage Loan.
(39) All points and fees related to each Mortgage Loan were disclosed
in writing to the borrower in accordance with applicable state and federal
law and regulation. Except in the case of a Mortgage Loan in an original
principal amount of less than $60,000 that would have resulted in an
unprofitable origination, no borrower was charged "points and fees"
(whether or not financed) in an amount greater than 5% of the principal
amount of such loan, such 5% limitation calculated in accordance with
Xxxxxx Mae's anti-predatory lending requirements as set forth in the Xxxxxx
Mae Selling Guide.
(40) All fees and charges (including finance charges), whether or not
financed, assessed, collected or to be collected in connection with the
origination and servicing of each Mortgage Loan has been disclosed in
writing to the borrower in accordance with applicable state and federal law
and regulation.
(41) Each Mortgage Loan was in compliance with the anti-predatory
lending eligibility for purchase requirements of Xxxxxx Mae's Selling
Guide.
(42) No Mortgage Loan is a "High-Cost Home Loan" as defined in any of
the following statutes: the Georgia Fair Lending Act, as amended (the
"Georgia Act"), the New York Banking Law 6-1, the Arkansas Home Loan
Protection Act effective July 16, 2003 (Act 1340 of 2003), the Kentucky
high-cost home loan statute effective June 24, 2003 (Ky. Rev. Stat. Section
360.100), the New Jersey Home Ownership Act effective November 27, 2003
(N.J.S.A. 46:10B-22 et seq.), or the New Mexico Home Loan Protection Act
effective January 1, 2004 (N.M. Stat. Xxx xx.xx. 58-21A-1 et seq.). No
Mortgage Loan subject to the Georgia Act and secured by owner occupied real
property or an owner occupied manufactured home located in the state of
Georgia was originated (or modified) on or after October 1, 2002 through
and including March 6, 2003. No Mortgage Loan is a "High-Risk Home Loan" as
defined in the Illinois High-Risk Home Loan Act effective January 1, 2004
(815 Ill. Comp. Stat. 137/1 et seq.). None of the Mortgage Loans that are
secured by property located in the State of Illinois are in violation of
the provisions of the Illinois Interest Act (815 Ill. Comp. Stat. 205/1 et
seq.).
(43) [Reserved].
(44) Each Mortgage Loan has been underwritten and serviced
substantially in accordance with the Transferor's guidelines, subject to
such variances as are reflected on the Mortgage Loan Schedule or that the
Transferor has approved.
(45) No Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable (as such terms are defined in the then-current version of
Standard & Poor's LEVELS(R) Glossary, which is now Version 5.6 Revised,
Appendix E) and no Mortgage Loan originated on or after Oct. 1, 2002
through March 6, 2003 is governed by the Georgia Fair Lending Act.
S-III-5
(46) To the best of seller's knowledge, there was no fraud involved in
the origination of any Mortgage Loan by the mortgagee or by the Mortgagor,
any appraiser or any other party involved in the origination of the
Mortgage Loan.
(47) The Pooling and Servicing Agreement creates a valid and
continuing "security interest" (as defined in Section 1-201(37) of the UCC)
in each Mortgage Note in favor of the Trustee, which security interest is
prior to all other liens and is enforceable as such against creditors of
and purchasers from the Depositor. Each Mortgage Note constitutes
"promissory notes" (as defined in Section 9-102(a)(65) of the UCC).
Immediately before the assignment of each Mortgage Note to the Trustee, the
Depositor had good and marketable title to such Mortgage Note free and
clear of any lien, claim, encumbrance of any Person. All original executed
copies of each Mortgage Note have been or shall be delivered to the Trustee
within five Business Days following the Closing Date. Other than the
security interest granted to the Trustee, the Depositor has not pledged,
assigned, sold, granted a security interest in, or otherwise conveyed any
Mortgage Note. The Depositor has not authorized the filing of and is not
aware of any financing statements against the Depositor that include a
description of any of the Mortgage Notes. The Depositor is not aware of any
judgment or tax liens filed against the Depositor. None of the Mortgage
Notes has any marks or notations indicating that they have been pledged,
assigned or otherwise conveyed to any Person other than the Trustee.
(48) To the best of Transferor's knowledge, there was no fraud
involved in the origination of any Mortgage Loan by the mortgagee or by the
Mortgagor, any appraiser or any other party involved in the origination of
the Mortgage Loan.
S-III-6
EXHIBIT A
[FORM OF SENIOR CERTIFICATE (other than Notional Amount Certificates]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
A-1
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Certificate Balance of this
Certificate ("Denomination") : $
Initial Certificate Balances of all
Certificates of this Class : $
CUSIP :
Interest Rate : %
Maturity Date :
INDYMAC MBS, INC.
INDYMAC INDX MORTGAGE LOAN TRUST 200_-_
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 200_-_
CLASS [__]
evidencing a percentage interest in the distributions allocable
to the Certificates of the above-referenced Class with respect to a
Trust Fund consisting primarily of a pool of conventional mortgage
loans (the "Mortgage Loans") secured by first liens on one- to
four-family residential properties.
INDYMAC MBS, INC., AS DEPOSITOR
Principal in respect of this Certificate is distributable monthly as set
forth herein or in the Agreement (defined below). Accordingly, the Certificate
Balance at any time may be less than the Certificate Balance as set forth
herein. This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Transferor, the Master Servicer or
the Trustee referred to below or any of their respective affiliates. Neither
this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that is the registered owner of the Percentage Interest
evidenced by this Certificate (obtained by dividing the denomination of this
Certificate by the aggregate Initial Certificate Balances of all Certificates of
the Class to which this Certificate belongs) in certain monthly distributions
with respect to a Trust Fund consisting primarily of the Mortgage Loans
deposited by IndyMac MBS, Inc. (the "Depositor"). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date
specified above (the "Agreement") among the Depositor, IndyMac Bank, F.S.B., as
Transferor (in such capacity, the "Transferor") and as master servicer (in such
capacity, the "Master Servicer"), and Deutsche Bank National Trust Company, as
trustee (the "Trustee"). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
A-2
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
A-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By ______________________
Countersigned:
By ___________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
A-4
EXHIBIT B
[FORM OF SUBORDINATED CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN
CERTIFICATES AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
[NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS
THE TRANSFEREE REPRESENTS TO THE TRUSTEE THAT SUCH TRANSFEREE IS NOT AND IS NOT
INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF AN EMPLOYEE BENEFIT PLAN SUBJECT
TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR, IF THE CERTIFICATE HAS BEEN THE
SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING, DELIVERS A REPRESENTATION IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN, OR DELIVERS
TO THE TRUSTEE AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE
AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY
HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO SECTION 4975 OF THE CODE WITHOUT
THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE
VOID AND OF NO EFFECT.]
B-1
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Certificate Balance of this
Certificate ("Denomination") : $
Initial Certificate Balances of all
Certificates of this Class : $
CUSIP :
INDYMAC MBS, INC.
INDYMAC INDX MORTGAGE LOAN TRUST 200_-_
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 200_-_
CLASS [___]
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced Class with
respect to a Trust Fund consisting primarily of a pool of
conventional mortgage loans (the "Mortgage Loans") secured by
first liens on one- to four-family residential properties.
INDYMAC MBS, INC., AS DEPOSITOR
Principal in respect of this Certificate is distributable monthly as set forth
herein or in the Agreement (defined below). Accordingly, the Certificate Balance
at any time may be less than the Certificate Balance as set forth herein. This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Transferor, the Master Servicer or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
This certifies that ________________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate Initial Certificate Balances
of the denominations of all Certificates of the Class to which this Certificate
belongs) in certain monthly distributions with respect to a Trust Fund
consisting primarily of the Mortgage Loans deposited by IndyMac MBS, Inc. (the
"Depositor"). The Trust Fund was created pursuant to a Pooling and Servicing
Agreement dated as of the Cut-off Date specified above (the "Agreement") among
the Depositor, IndyMac Bank, F.S.B., as Transferor (in such capacity, the
"Transferor"), and as master servicer (in such capacity, the "Master Servicer"),
and Deutsche Bank National Trust Company, as trustee (the "Trustee"). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
[No transfer of a Certificate of this Class shall be made unless such transfer
is made pursuant to an effective registration statement under the Securities Act
and any applicable state securities laws or is
B-2
exempt from the registration requirements under said Act and such laws. In the
event that a transfer is to be made in reliance upon an exemption from the
Securities Act and such laws, in order to assure compliance with the Securities
Act and such laws, the Certificateholder desiring to effect such transfer and
such Certificateholder's prospective transferee shall each certify to the
Trustee in writing the facts surrounding the transfer. In the event that such a
transfer is to be made within three years from the date of the initial issuance
of Certificates pursuant hereto, there shall also be delivered (except in the
case of a transfer pursuant to Rule 144A of the Securities Act) to the Trustee
an Opinion of Counsel that such transfer may be made pursuant to an exemption
from the Securities Act and such state securities laws, which Opinion of Counsel
shall not be obtained at the expense of the Trustee, the Transferor, the Master
Servicer or the Depositor. The Holder hereof desiring to effect such transfer
shall, and does hereby agree to, indemnify the Trustee and the Depositor against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.]
[No transfer of a Certificate of this Class shall be made unless the Trustee
shall have received either (i) a representation [letter] from the transferee of
such Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan or
other benefit plan subject to Section 406 of ERISA or Section 4975 of the Code,
or a person acting on behalf of or investing plan assets of any such plan, which
representation letter shall not be an expense of the Trustee or the Master
Servicer, (ii) if the purchaser is an insurance company and the Certificate has
been the subject of an ERISA-Qualifying Underwriting, a representation that the
purchaser is an insurance company which is purchasing such Certificates with
funds contained in an "insurance company general account" (as such term is
defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE
95-60")) and that the purchase and holding of such Certificates are covered
under Sections I and III of PTCE 95-60 or (iii) in the case of any such
Certificate presented for registration in the name of an employee benefit plan
subject to ERISA or Section 4975 of the Code (or comparable provisions of any
subsequent enactments), or a trustee of any such plan or any other person acting
on behalf of any such plan, an Opinion of Counsel satisfactory to the Trustee
and the Master Servicer to the effect that the purchase or holding of such
Certificate will not result in a nonexempt prohibited transaction under ERISA or
Section 4975 of the Code and will not subject the Trustee or the Master Servicer
to any obligation in addition to those undertaken in the Agreement, which
Opinion of Counsel shall not be an expense of the Trustee, the Master Servicer
or the Trust Fund. Notwithstanding anything else to the contrary herein, any
purported transfer of a Certificate of this Class to or on behalf of an employee
benefit plan subject to ERISA or to Section 4975 of the Code without the opinion
of counsel satisfactory to the Trustee as described above shall be void and of
no effect.]
Reference is hereby made to the further provisions of this Certificate set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement or be
valid for any purpose unless manually countersigned by an authorized signatory
of the Trustee.
B-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By ______________________
Countersigned:
By ___________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
B-4
EXHIBIT C
[FORM OF CLASS A-R CERTIFICATE]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS
THE PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS
THE TRANSFEREE REPRESENTS TO THE TRUSTEE THAT SUCH TRANSFEREE IS NOT AND IS NOT
INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF AN EMPLOYEE BENEFIT PLAN SUBJECT
TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR, IF SUCH PURCHASER IS AN
INSURANCE COMPANY, DELIVERS A REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS
OF THE AGREEMENT REFERRED TO HEREIN, OR DELIVERS TO THE TRUSTEE AN OPINION OF
COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF
THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR
TO SECTION 4975 OF THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE
TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
C-1
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Certificate Balance of this
Certificate ("Denomination") : $
Initial Certificate Balances of all
Certificates of this Class : $
CUSIP :
INDYMAC MBS, INC.
INDYMAC INDX MORTGAGE LOAN TRUST 200_-_
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 200_-_
evidencing the distributions allocable to the Class A-R
Certificates with respect to a Trust Fund consisting primarily of
a pool of conventional mortgage loans (the "Mortgage Loans")
secured by first liens on one- to four-family residential
properties.
INDYMAC MBS, INC., AS DEPOSITOR
Principal in respect of this Certificate is distributable monthly as set forth
herein or in the Agreement (defined below). Accordingly, the Certificate Balance
at any time may be less than the Certificate Balance as set forth herein. This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Transferor, the Master Servicer or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
This certifies that is the registered owner of the Percentage Interest (obtained
by dividing the denomination of this Certificate by the aggregate Initial
Certificate Balances of the denominations of all Certificates of the Class to
which this Certificate belongs) in certain monthly distributions with respect to
a Trust Fund consisting of the Mortgage Loans deposited by IndyMac MBS, Inc.
(the "Depositor"). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement") among the Depositor, IndyMac Bank, F.S.B., as Transferor (in such
capacity, the "Transferor") and as master servicer (in such capacity, the
"Master Servicer"), and Deutsche Bank National Trust Company, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the Trust Fund will
be made only upon presentment and surrender of this Class A-R Certificate at the
Corporate Trust Office or the office or agency maintained by the Trustee in New
York, New York.
C-2
No transfer of a Class A-R Certificate shall be made unless the Trustee shall
have received either (i) a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or Section 4975 of the Code, nor a person
investing on behalf of or with plan assets of any such plan, which
representation letter shall not be an expense of the Trustee or the Master
Servicer, (ii) if the purchaser is an insurance company, a representation that
the purchaser is an insurance company which is purchasing such Certificate with
funds contained in an "insurance company general account" (as such term is
defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE
95-60")) and that the purchase and holding of such Certificate are covered under
Sections I and III of PTCE 95-60 or (iii) in the case of any such Certificate
presented for registration in the name of an employee benefit plan subject to
ERISA or Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee of any such plan or any other person acting on behalf
of any such plan, an Opinion of Counsel satisfactory to the Trustee and the
Master Servicer to the effect that the purchase or holding of such Class A-R
Certificate will not result in a nonexempt prohibited transaction under Section
406 of ERISA or Section 4975 of the Code and will not subject the Trustee or the
Master Servicer to any obligation in addition to those undertaken in the
Agreement, which Opinion of Counsel shall not be an expense of the Trustee, the
Master Servicer or the Trust Fund. Notwithstanding anything else to the contrary
herein, any purported transfer of a Class A-R Certificate to or on behalf of an
employee benefit plan subject to ERISA or to Section 4975 of the Code without
the opinion of counsel satisfactory to the Trustee as described above shall be
void and of no effect.
Each Holder of this Class A-R Certificate will be deemed to have agreed to be
bound by the restrictions of the Agreement, including but not limited to the
restrictions that (i) each person holding or acquiring any Ownership Interest in
this Class A-R Certificate must be a Permitted Transferee, (ii) no Ownership
Interest in this Class A-R Certificate may be transferred without delivery to
the Trustee of (a) a transfer affidavit of the proposed transferee and (b) a
transfer certificate of the transferor, each of such documents to be in the form
described in the Agreement, (iii) each person holding or acquiring any Ownership
Interest in this Class A-R Certificate must agree to require a transfer
affidavit and to deliver a transfer certificate to the Trustee as required
pursuant to the Agreement, (iv) each person holding or acquiring an Ownership
Interest in this Class A-R Certificate must agree not to transfer an Ownership
Interest in this Class A-R Certificate if it has actual knowledge that the
proposed transferee is not a Permitted Transferee and (v) any attempted or
purported transfer of any Ownership Interest in this Class A-R Certificate in
violation of such restrictions will be absolutely null and void and will vest no
rights in the purported transferee.
Reference is hereby made to the further provisions of this Certificate set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement or be
valid for any purpose unless manually countersigned by an authorized signatory
of the Trustee.
C-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By ______________________
Countersigned:
By ___________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
C-4
EXHIBIT D
FORM OF NOTIONAL AMOUNT CERTIFICATE
[FORM OF NOTIONAL AMOUNT CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
[UNTIL THIS CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING
UNDERWRITING, NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE
TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A
REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AND IS NOT
INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF AN EMPLOYEE BENEFIT PLAN SUBJECT
TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR A PLAN
SUBJECT TO SECTION 4975 OF THE CODE, OR AN OPINION OF COUNSEL IN ACCORDANCE WITH
THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING
ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON
BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO SECTION 4975 OF THE
CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED
ABOVE SHALL BE VOID AND OF NO EFFECT.]
THIS CERTIFICATE HAS NO PRINCIPAL BALANCE AND IS NOT ENTITLED TO ANY
DISTRIBUTIONS IN RESPECT OF PRINCIPAL.
D-1
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Notional Amount of this
Certificate ("Denomination") : $
Initial Notional Amount of all
Certificates of this Class : $
CUSIP :
Interest Rate : %
Maturity Date :
INDYMAC MBS, INC.
RESIDENTIAL ASSET SECURITIZATION TRUST 200_-_
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 200_-_
CLASS [__]
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced Class with
respect to a Trust Fund consisting primarily of a pool of
conventional mortgage loans (the "Mortgage Loans") secured by
first liens on one- to four-family residential properties.
INDYMAC MBS, INC., AS DEPOSITOR
This Certificate does not evidence an obligation of, or an interest in, and
is not guaranteed by the Depositor, the Transferor, the Master Servicer or the
Trustee referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
D-2
THIS CERTIFIES THAT __________ IS THE REGISTERED OWNER OF THE PERCENTAGE
INTEREST EVIDENCED BY THIS CERTIFICATE (OBTAINED BY DIVIDING THE DENOMINATION OF
THIS CERTIFICATE BY THE AGGREGATE INITIAL NOTIONAL AMOUNTS OF ALL CERTIFICATES
OF THE CLASS TO WHICH THIS CERTIFICATE BELONGS) IN CERTAIN MONTHLY DISTRIBUTIONS
WITH RESPECT TO A TRUST FUND CONSISTING PRIMARILY OF THE MORTGAGE LOANS
DEPOSITED BY INDYMAC MBS, INC. (THE "DEPOSITOR"). THE TRUST FUND WAS CREATED
PURSUANT TO A POOLING AND SERVICING AGREEMENT DATED AS OF THE CUT-OFF DATE
SPECIFIED ABOVE (THE "AGREEMENT") AMONG THE DEPOSITOR, INDYMAC BANK, F.S.B., AS
TRANSFEROR (IN SUCH CAPACITY, THE "TRANSFEROR") AND AS MASTER SERVICER (IN SUCH
CAPACITY, THE "MASTER SERVICER"), AND DEUTSCHE BANK NATIONAL TRUST COMPANY, AS
TRUSTEE (THE "TRUSTEE"). TO THE EXTENT NOT DEFINED HEREIN, THE CAPITALIZED TERMS
USED HEREIN HAVE THE MEANINGS ASSIGNED IN THE AGREEMENT. THIS CERTIFICATE IS
ISSUED UNDER AND IS SUBJECT TO THE TERMS, PROVISIONS AND CONDITIONS OF THE
AGREEMENT, TO WHICH AGREEMENT THE HOLDER OF THIS CERTIFICATE BY VIRTUE OF THE
ACCEPTANCE HEREOF ASSENTS AND BY WHICH SUCH HOLDER IS BOUND.
[Until this certificate has been the subject of an ERISA-Qualifying
Underwriting, no transfer of a Certificate of this Class shall be made unless
the Trustee shall have received either (i) a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan subject to Section 406 of ERISA or Section 4975 of the
Code, nor a person investing on behalf of or with plan assets of any such plan,
which representation letter shall not be an expense of the Trustee or the Master
Servicer, or (ii) in the case of any such Certificate presented for registration
in the name of an employee benefit plan subject to ERISA or Section 4975 of the
Code (or comparable provisions of any subsequent enactments), or a trustee of
any such plan or any other person acting on behalf of any such plan, an Opinion
of Counsel satisfactory to the Trustee and the Master Servicer to the effect
that the purchase or holding of such Certificate will not result in a nonexempt
prohibited transaction under Section 406 of ERISA or Section 4975 of the Code
and will not subject the Trustee or the Master Servicer to any obligation in
addition to those undertaken in the Agreement, which Opinion of Counsel shall
not be an expense of the Trustee, the Master Servicer, or the Trust Fund.
Notwithstanding anything else to the contrary herein, until this certificate has
been the subject of an ERISA-Qualifying Underwriting, any purported transfer of
a Certificate of this Class to or on behalf of an employee benefit plan subject
to ERISA or to the Code without the opinion of counsel satisfactory to the
Trustee as described above shall be void and of no effect.]
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
D-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By ______________________
Countersigned:
By ___________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
D-4
EXHIBIT E
[FORM OF REVERSE OF CERTIFICATES]
INDYMAC MBS, INC.
INDYMAC INDX MORTGAGE LOAN TRUST 200_-_
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 200_-_
This Certificate is one of a duly authorized issue of Certificates
designated as IndyMac MBS, Inc. Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified on the face hereof, to the Person in whose name this
Certificate is registered at the close of business on the applicable Record Date
in an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to Holders of Certificates
of the Class to which this Certificate belongs on such Distribution Date
pursuant to the Agreement. The Record Date applicable to each Distribution Date
is the last Business Day of the month next preceding the month of such
Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the Record Date and such Certificateholder shall satisfy the conditions to
receive such form of payment set forth in the Agreement, or, if not, by check
mailed by first class mail to the address of such Certificateholder appearing in
the Certificate Register. The final distribution on each Certificate will be
made in like manner, but only upon presentment and surrender of such Certificate
at the Corporate Trust Office or such other location specified in the notice to
Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer and the Trustee with the consent of the
Holders of Certificates affected by such amendment evidencing the requisite
Percentage Interest, as provided in the Agreement. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
E-1
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office or the office or agency maintained by the
Trustee in New York, New York, accompanied by a written instrument of transfer
in form satisfactory to the Trustee and the Certificate Registrar duly executed
by the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Transferor and the Trustee and any
agent of the Depositor or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and neither the
Depositor, the Trustee, nor any such agent shall be affected by any notice to
the contrary.
On any Distribution Date on which the aggregate Stated Principal Balance of
the Mortgage Loans in the mortgage pool is less than 10% of the Cut-off Date
Pool Principal Balance, the Master Servicer will have the option to repurchase,
in whole, from the Trust Fund all remaining Mortgage Loans in the mortgage pool
and all property acquired in respect of the Mortgage Loans in the mortgage pool
at a purchase price determined as provided in the Agreement. In the event that
no such optional termination occurs, the obligations and responsibilities
created by the Agreement will terminate upon the later of the maturity or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund or the disposition of all property in respect
thereof and the distribution to Certificateholders of all amounts required to be
distributed pursuant to the Agreement. In no event, however, will the trust
created by the Agreement continue beyond the expiration of 21 years from the
death of the last survivor of the descendants living at the date of the
Agreement of a certain person named in the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
E-2
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
-------------------------------------------------------------------------------
Dated:
---------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to____________________________________________________________,
for the account of___________________________________________________________,
account number , or, if mailed by check, to___________________________________
==============================================================================
Applicable statements should be mailed to
--------------------------------------------------
This information is provided by___________________________________________
____________________________________________________, the assignee named above,
or ____________________________________________________________, as its agent.
E-3
STATE OF CALIFORNIA )
: ss.:
COUNTY OF ___________ )
On the __th day of _____________, 20__ before me, a notary public in and
for said State, personally appeared , known to me who, being by me duly sworn,
did depose and say that he executed the foregoing instrument.
-----------------------------------
Notary Public
[Notarial Seal]
E-4
EXHIBIT F
[FORM OF CLASS P CERTIFICATE]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
[NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE REPRESENTS TO THE TRUSTEE THAT SUCH TRANSFEREE IS NOT AND IS NOT
INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF AN EMPLOYEE BENEFIT PLAN SUBJECT
TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR, IF THE CERTIFICATE HAS BEEN THE
SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING, DELIVERS A REPRESENTATION IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN, OR DELIVERS
TO THE TRUSTEE AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE
AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY
HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO SECTION 4975 OF THE CODE WITHOUT
THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE
VOID AND OF NO EFFECT.]
F-1
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Certificate Balance
of this Certificate
("Denomination") : $
Initial Certificate Balances
of all Certificates
of this Class : $
CUSIP :
Interest Rate :
Maturity Date :
INDYMAC MBS, INC.
IndyMac INDX Mortgage Loan Trust 200_-__
Mortgage Pass-Through Certificates, Series 200_-__
Class P
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to a Trust Fund
consisting primarily of a pool of conventional mortgage loans (the
"Mortgage Loans") secured by first liens on one- to four-family residential
properties.
Distributors in respect of this Certificate are distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less than
the Certificate Balance as set forth herein. This Certificate does not evidence
an obligation of, or an interest in, and is not guaranteed by the Depositor, the
Transferor, the Master Servicer or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that ________________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination of
this Certificate by the aggregate of the denominations of all Certificates of
the Class to which this Certificate belongs) in certain monthly distributions
with respect to a Trust Fund consisting primarily of the Mortgage Loans
deposited by IndyMac MBS, Inc. (the "Depositor"). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date
specified above (the "Agreement") among the Depositor, IndyMac Bank, F.S.B., as
Transferor and master servicer (the "Transferor" or the "Master Servicer", as
appropriate), and Deutsche Bank National Trust Company, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This
F-2
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Collection Account and the Distribution Account may be made from time to time
for purposes other than distributions to Certificateholders, such purposes
including reimbursement of advances made, or certain expenses incurred, with
respect to the Mortgage Loans.
This Certificate does not have a Certificate Balance or Pass-Through Rate and
will be entitled to distributions only to the extent set forth in the Agreement.
In addition, any distribution of the proceeds of any remaining assets of the
Trust will be made only upon presentment and surrender of this Certificate at
the Corporate Trust Office or the office or agency maintained by the Trustee.
No transfer of a Certificate of this Class shall be made unless such disposition
is exempt from the registration requirements of the Securities Act of 1933, as
amended (the "1933 Act"), and any applicable state securities laws or is made in
accordance with the 1933 Act and such laws. In the event of any such transfer,
the Trustee shall require the transferor to execute a transferor certificate (in
substantially the form attached to the Pooling and Servicing Agreement) and
deliver either (i) an Investment Letter or the Rule 144A Letter, in either case
substantially in the form attached to the Agreement, or (ii) a written Opinion
of Counsel to the Trustee that such transfer may be made pursuant to an
exemption, describing the applicable exemption and the basis therefor, from the
1933 Act or is being made pursuant to the 1933 Act, which Opinion of Counsel
shall be an expense of the transferor.
[No transfer of a Certificate of this Class shall be made unless the Trustee
shall have received either (i) a representation [letter] from the transferee of
such Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan or
other benefit plan subject to Section 406 of ERISA or Section 4975 of the Code,
or a person acting on behalf of or investing plan assets of any such plan, which
representation letter shall not be an expense of the Trustee or the Master
Servicer, (ii) if the purchaser is an insurance company and the Certificate has
been the subject of an ERISA-Qualifying Underwriting, a representation that the
purchaser is an insurance company which is purchasing such Certificates with
funds contained in an "insurance company general account" (as such term is
defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE
95-60")) and that the purchase and holding of such Certificates are covered
under Sections I and III of PTCE 95-60 or (iii) in the case of any such
Certificate presented for registration in the name of an employee benefit plan
subject to ERISA or Section 4975 of the Code (or comparable provisions of any
subsequent enactments), or a trustee of any such plan or any other person acting
on behalf of any such plan, an Opinion of Counsel satisfactory to the Trustee
and the Master Servicer to the effect that the purchase or holding of such
Certificate will not result in a nonexempt prohibited transaction under ERISA or
Section 4975 of the Code and will not subject the Trustee or the Master Servicer
to any obligation in addition to those undertaken in the Agreement, which
Opinion of Counsel shall not be an expense of the Trustee, the Master Servicer
or the Trust Fund. Notwithstanding anything else to the contrary herein, any
purported transfer of a Certificate of this Class to or on behalf of an employee
benefit plan subject to ERISA or to Section 4975 of the Code without the opinion
of counsel satisfactory to the Trustee as described above shall be void and of
no effect.]
Reference is hereby made to the further provisions of this Certificate set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
F-3
This Certificate shall not be entitled to any benefit under the Agreement or be
valid for any purpose unless manually countersigned by an authorized signatory
of the Trustee.
* * *
F-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: _______, ____
DEUTSCHE BANK NATIONAL TRUST
COMPANY,
as Trustee
By ________________________________
Countersigned:
By ___________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST
COMPANY, as Trustee
F-5
INDYMAC MBS, INC.
IndyMac INDX Mortgage Loan Trust 200_-__
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates designated as
IndyMac MBS, Inc. Mortgage Pass-Through Certificates, of the Series specified on
the face hereof (herein collectively called the "Certificates"), and
representing a beneficial ownership interest in the Trust Fund created by the
Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that it
will look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and reference is
made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made on the 25th
day of each month or, if such 25th day is not a Business Day, the Business Day
immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified on the face hereof, to the Person in whose name this
Certificate is registered at the close of business on the applicable Record Date
in an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to Holders of Certificates
of the Class to which this Certificate belongs on such Distribution Date
pursuant to the Agreement. The Record Date applicable to each Distribution Date
is the last Business Day of the month next preceding the month of such
Distribution Date.
Distributions on this Certificate shall be made by wire transfer of immediately
available funds to the account of the Holder hereof at a bank or other entity
having appropriate facilities therefor, if such Certificateholder shall have so
notified the Trustee in writing at least five Business Days prior to the related
Record Date and such Certificateholder shall satisfy the conditions to receive
such form of payment set forth in the Agreement, or, if not, by check mailed by
first class mail to the address of such Certificateholder appearing in the
Certificate Register. The final distribution on each Certificate will be made in
like manner, but only upon presentment and surrender of such Certificate at the
Corporate Trust Office or such other location specified in the notice to
Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer and the Trustee with the consent of the Holders
of Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office or the office or agency maintained by the
Trustee in New York, New York, accompanied by a written instrument of transfer
in form satisfactory to the Trustee and the Certificate Registrar duly executed
by the holder hereof or such holder's attorney duly authorized
F-6
in writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Transferor and the Trustee and any agent
of the Depositor or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and neither the
Depositor, the Trustee, nor any such agent shall be affected by any notice to
the contrary.
On any Distribution Date on which the aggregate Stated Principal Balance of the
Mortgage Loans is less than 10% of the Cut-off Date Pool Principal Balance, the
Master Servicer will have the option to repurchase, in whole, from the Trust
Fund all remaining Mortgage Loans and all property acquired in respect of the
Mortgage Loans at a purchase price determined as provided in the Agreement. In
the event that no such optional termination occurs, the related obligations and
responsibilities created by the Agreement will terminate upon the later of the
maturity or other liquidation (or any advance with respect thereto) of the last
Mortgage Loan remaining in the Trust Fund or the disposition of all property in
respect thereof and the distribution to Certificateholders of all amounts
required to be distributed pursuant to the Agreement. In no event, however, will
the trust created by the Agreement continue beyond the expiration of 21 years
from the death of the last survivor of the descendants living at the date of the
Agreement of a certain person named in the Agreement.
Any term used herein that is defined in the Agreement shall have the meaning
assigned in the Agreement, and nothing herein shall be deemed inconsistent with
that meaning.
F-7
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
-----------------------------------------------------------------------------.
Dated:
-------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ___________________________________________________________,
for the account of ___________________________________________________________
account number , or, if mailed by check, to___________________________________
______________________________________________________________________________.
Applicable statements should be mailed to ____________________________________.
This information is provided by ________________________________________
_________________________________________________________________________, the
assignee named above, or _____________________________________________________
as its agent.
F-8
STATE OF ___________________ )
) ss.:
COUNTY OF __________________ )
On the __th day of _________, 20__ before me, a notary public in and for
said State, personally appeared ____________, known to me who, being by me duly
sworn, did depose and say that he executed the foregoing instrument.
------------------------
Notary Public
[Notarial Seal]
F-9
EXHIBIT G
FORM OF INITIAL CERTIFICATION OF TRUSTEE
[DATE]
[Depositor]
[Master Servicer]
[Transferor]
-------------------
--------------------
Re: Pooling and Servicing Agreement among IndyMac MBS, Inc., as
Depositor, IndyMac Bank, F.S.B., as Transferor and Master
Servicer, and Deutsche Bank National Trust Company, as Trustee,
Mortgage Pass-Through Certificates, Series 200 -
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned, as
Trustee, hereby certifies that, as to each Mortgage Loan listed in the Mortgage
Loan Schedule (other than any Mortgage Loan listed in the attached schedule), it
has received:
(i) the original Mortgage Note, endorsed as provided in the following form:
"Pay to the order of ________, without recourse"; and
(ii) 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 Mortgaged Property is
located in the Commonwealth of Puerto Rico.
Based on its review and examination and only as to the foregoing documents,
such documents appear regular on their face and to such Mortgage Loan.
The Trustee has made no independent examination of any documents contained
in each Mortgage File beyond the review specifically required in the Pooling and
Servicing Agreement. The Trustee makes no representations as to: (i) the
validity, legality, sufficiency, enforceability or genuineness of any of the
documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
G-1
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
---------------------------------------
G-2
By:_____________________________________
Name:
Title:
G-2
EXHIBIT G-1
FORM OF DELAY DELIVERY CERTIFICATION (MORTGAGE LOANS)
[DATE]
[Depositor]
[Master Servicer]
[Transferor]
-----------------------
-----------------------
Re: Pooling and Servicing Agreement among IndyMac MBS, Inc., as
Depositor, IndyMac Bank, F.S.B., as Transferor and Master
Servicer, and Deutsche Bank National Trust Company, as Trustee,
Mortgage Pass-Through Certificates, Series 200 -
------------------------------------------------------------
Gentlemen:
Reference is made to the Initial Certification of Trustee relating to the
above-referenced series, with the schedule of exceptions attached thereto (the
"Schedule A"), delivered by the undersigned, as Trustee, on the Closing Date in
accordance with Section 2.02 of the above-captioned Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"). The undersigned hereby
certifies that, as to each Delay Delivery Mortgage Loan listed on Schedule A
attached hereto (other than any Mortgage Loan paid in full or listed on Schedule
B attached hereto) it has received:
(i) the original Mortgage Note, endorsed by the Transferor or the
originator of such Mortgage Loan, without recourse in the
following form: "Pay to the order of _______________ without
recourse", with all intervening endorsements that show a complete
chain of endorsement from the originator to the Transferor, or,
if the original Mortgage Note has been lost or destroyed and not
replaced, an original lost note affidavit from the Transferor,
stating that the original Mortgage Note was lost or destroyed,
together with a copy of the Mortgage Note;
(ii) the original recorded Mortgage;
(iii) a duly executed assignment of the Mortgage to "Deutsche Bank
National Trust Company, as trustee under the Pooling and
Servicing Agreement dated as of November 1, 2004, without
recourse" (each such assignment, when duly and validly completed,
to be in recordable form and sufficient to effect the assignment
of and transfer to the assignee thereof, under the Mortgage to
which such assignment relates);
(iv) the original recorded assignment or assignments of the Mortgage
together with all interim recorded assignments of such Mortgage;
(v) the original or copies of each assumption, modification, written
assurance or substitution agreement, if any, with evidence of
recording thereon if recordation thereof is permissible under
applicable law; and
G-1-I
(vi) the original or duplicate original lender's title policy and all
riders, if any, thereto or, in the event such original title
policy has not been received from the insurer, any one of an
original title binder, an original preliminary title report or an
original title commitment, or a copy thereof certified by the
title company, with the original policy of title insurance to be
delivered within one year of the Closing Date.
In the event that in connection with any Mortgage Loan for which the
Transferor cannot deliver the original recorded Mortgage or all interim recorded
assignments of the Mortgage satisfying the requirements of clause (ii), (iii) or
(iv), as applicable, the Trustee has received, in lieu thereof, a true and
complete copy of such Mortgage and/or such assignment or assignments of the
Mortgage, as applicable, each certified by the Transferor, the applicable title
company, escrow agent or attorney, or the originator of such Mortgage Loan, as
the case may be, to be a true and complete copy of the original Mortgage or
assignment of Mortgage submitted for recording.
Based on its review and examination and only as to the foregoing documents,
(i) such documents appear regular on their face and related to such Mortgage
Loan, and (ii) the information set forth in items (i), (iv), (vi) and (xv)
(solely as of origination, not as of the Cut-off Date) of the definition of the
"Mortgage Loan Schedule" in Section 1.01 of the Pooling and Servicing Agreement
accurately reflects information set forth in the Mortgage File.
The Trustee has made no independent examination of any documents contained
in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any of
the Mortgage Loans identified on the [Mortgage Loan Schedule][Loan Number and
Borrower Identification Mortgage Loan Schedule] or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By:__________________________________________
Name:
Title:
G-1-2
EXHIBIT H
FORM OF FINAL CERTIFICATION OF TRUSTEE
[DATE]
[Depositor]
[Master Servicer]
[Transferor]
------------------------
------------------------
Re: Pooling and Servicing Agreement among IndyMac MBS, Inc., as
Depositor, IndyMac Bank, F.S.B., as Transferor and Master
Servicer, and Deutsche Bank National Trust Company, as Trustee,
Mortgage Pass-Through Certificates, Series 200-
--------------------------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned, as
Trustee, hereby certifies that as to each Mortgage Loan listed in the Mortgage
Loan Schedule (other than any Mortgage Loan paid in full or listed on the
attached Document Exception Report) it has received:
(i) The original Mortgage Note, endorsed in the form provided in Section
2.01(c) of the Pooling and Servicing Agreement, with all intervening
endorsements showing a complete chain of endorsement from the originator to the
Transferor.
(ii) The original recorded Mortgage.
(iii) A duly executed assignment of the Mortgage in the form provided in
Section 2.01(c) of the Pooling and Servicing Agreement; provided, however, that
it has received no assignment with respect to any Mortgage for which the
Mortgaged Property is located in the Commonwealth of Puerto Rico, or, if the
Depositor has certified or the Trustee otherwise knows that the Mortgage has not
been returned from the applicable recording office, a copy of the assignment of
the Mortgage (excluding information to be provided by the recording office).
(iv) The original or duplicate original recorded assignment or assignments
of the Mortgage showing a complete chain of assignment from the originator to
the Transferor.
(v) The original or duplicate original lender's title policy and all riders
thereto or, any one of an original title binder, an original preliminary title
report or an original title commitment, or a copy thereof certified by the title
company.
Based on its review and examination and only as to the foregoing documents,
(a) such documents appear regular on their face and related to such Mortgage
Loan, and (b) the information set forth in items (i), (ii), (iii), (iv), (vi)
and (xv) (solely as of origination, not as of the Cut-off Date) of the
definition of the
H-1
"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 Mortgage Loan.
Notwithstanding anything herein to the contrary, the Trustee has made no
determination and makes no representations as to whether (i) any endorsement is
sufficient to transfer all right, title and interest of the party so endorsing,
as noteholder or assignee thereof, in and to that Mortgage Note or (ii) any
assignment is in recordable form or sufficient to effect the assignment of and
transfer to the assignee thereof, under the Mortgage to which the assignment
relates.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By:__________________________________________
Name:
Title:
H-2
EXHIBIT I
TRANSFER AFFIDAVIT
INDYMAC MBS, INC.
MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 200_-_
STATE OF CALIFORNIA )
: ss.:
COUNTY OF _____________ )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of ____________, the proposed Transferee
of an Ownership Interest in a Class A-R Certificate (the "Certificate") issued
pursuant to the Pooling and Servicing Agreement, (the "Agreement"), relating to
the above-referenced Series, by and among IndyMac MBS, Inc., as depositor (the
"Depositor"), IndyMac Bank, F.S.B., as Transferor and master servicer and
Deutsche Bank National Trust Company, 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.
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)
I-1
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. The Transferee is not a foreign permanent establishment or fixed base
(within the meaning of an applicable income tax treaty) of a U.S. taxpayer.
12. The Transferee will not transfer the Certificates, directly or
indirectly, to a foreign permanent establishment or fixed base (within the
meaning of an applicable income tax treaty) of the Transferee or another U.S.
taxpayer.
13. The Transferee will not cause income from the Certificates to be
attributable to a foreign permanent establishment or fixed base (within the
meaning of an applicable income tax treaty) of the Transferee or another U.S.
taxpayer.
14. Either:
(a) (i) At the time of the transfer, and at the close of each of the
Transferee's two fiscal years preceding the Transferee's fiscal year of
transfer, the Transferee's gross assets for financial reporting purposes
exceed $100 million and its net assets for financial reporting purposes
exceed $10 million. For purposes of the preceding sentence, the gross
assets and net assets of a Transferee do not include any obligation of any
Related Person, as defined below, or any other asset if a principal purpose
for holding or acquiring the other asset is to permit the Transferee to
satisfy the conditions of this paragraph 15(a); (ii) The Transferee is an
Eligible Corporation, as defined below, and hereby agrees that any
subsequent transfer of the interest will be to another Eligible Corporation
in a transaction that satisfies this Transfer Affidavit, including this
paragraph 15(a); and (iii) The Transferee has not given the Transferor any
reason to know that the Transferee will not honor the restrictions on
subsequent transfers of the residual interest or that the Transferee cannot
or will not pay any taxes associated with the residual interest; or
I-2
(b)(i) The Transferee is a United States Person; (ii) The present
value of the anticipated tax liabilities associated with holding the
residual interest does not exceed the sum of: (A) The present value of any
consideration given to the Transferee to acquire the interest; (B) The
present value of the expected future distributions on the interest; and (C)
The present value of the anticipated tax savings associated with holding
the interest as any REMIC generates losses; and (iii) For purposes of
calculating the aforementioned present values: (A) The transferee has
assumed that it pays tax at a rate equal to the highest rate of tax
specified in Code Section 11(b)(1) (unless the Transferee has been subject
to the alternative minimum tax under Code Section 55 in the preceding two
years and will compute its taxable income in the current taxable year using
the alternative minimum tax rate, in which case the Transferee can assume
that it pays tax at the rate specified in Code Section 55(b)(1)(B) provided
the Transferee states in this Transfer Affidavit that it is using such
alternate rate and that has been subject to the alternative minimum tax
under Code Section 55 in the preceding two years and will compute its
taxable income in the current taxable year using the alternative minimum
tax rate):and (B) The Transferee uses a discount rate equal to the Federal
short-term rate prescribed by section 1274(d) for the month of the transfer
and the compounding period used by the Transferee.
The term "Eligible Corporation" means any domestic C corporation (as
defined in section 1361(a)(2) of the Code) other than a corporation which is
exempt from, or is not subject to, tax under section 11 of the Code, an entity
described in section 851(a) or 856(a) of the Code, a REMIC; or an organization
to which part I, subchapter T, chapter 1, subtitle A of the Code applies. The
Term "Related Person" means any person that bears a relationship to the
Transferee enumerated in section 267(b) or 707(b)(1) of the Code, using "20
percent" instead of "50 percent" where it appears under the provisions; or is
under common control (within the meaning of section 52(a) and (b) of the Code)
with the Transferee.
15. Either (i) the Transferee is not an employee benefit plan that is
subject to ERISA or a plan that is subject to Section 4975 of the Code, and the
Transferee is not acting on behalf of or with plan assets of such a plan; or
(ii) the Transferee is an insurance company that is investing funds contained in
an "insurance company general account" (as such term is defined in Section V(e)
of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60") and the purchase
and holding of the Class A-R Certificate satisfy the requirements for exemptive
relief under Sections I and III of PTCE 95-60.
* * *
I-3
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
duly authorized officer and its corporate seal to be hereunto affixed, duly
attested, this day of , 20 .
---------------------------------------------
Print Name of Transferee
By:__________________________________________
Name:
Title:
[Corporate Seal]
ATTEST:
[Assistant] Secretary
Personally appeared before me the above-named __________________, known or
proved to me to be the same person who executed the foregoing instrument and
to be the _________________ of the Transferee, and acknowledged that he
executed the same as his free act and deed and the free act and deed of the
Transferee.
Subscribed and sworn before me this _____day of ____________, 20__.
-------------------------------
NOTARY PUBLIC
My Commission expires the ____day of _______ ,
20__.
I-4
EXHIBIT 1
to EXHIBIT I
CERTAIN DEFINITIONS
-------------------
"Ownership Interest": As to any Certificate, any ownership interest in such
Certificate, including any interest in such Certificate as the Holder thereof
and any other interest therein, whether direct or indirect, legal or beneficial.
"Permitted Transferee": Any Person other than (i) the United States, any
State or political subdivision thereof, or any agency or instrumentality of any
of the foregoing, (ii) a foreign government, International Organization or any
agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in Code Section 521) that is
exempt from tax imposed by Chapter 1 of the Code (including the tax imposed by
Code Section 511 on unrelated business taxable income) on any excess inclusions
(as defined in Code Section 860E(c)(1)) with respect to any Restricted
Certificate, (iv) a rural electric and telephone cooperatives described in Code
Section 1381(a)(2)(c), (v) an "electing large partnership" as defined in Code
Section 775 of (vi) a Person that is not a U.S. Person, and (vii) any other
Person so designated by the Depositor based upon an Opinion of Counsel that the
Transfer of an Ownership Interest in a Residual Certificate to such Person may
cause any REMIC to fail to qualify as a REMIC at any time that certain
Certificates are Outstanding. The terms "United States," "State" and
"International Organization" shall have the meanings set forth in Code Section
7701 or successor provisions. A corporation will not be treated as an
instrumentality of the United States or of any State or political subdivision
thereof if all of its activities are subject to tax, and, with the exception of
the FHLMC, a majority of its board of directors is not selected by such
governmental unit.
"Person": Any individual, corporation, partnership, joint venture, limited
liability company, bank, joint stock company, trust (including any beneficiary
thereof), unincorporated organization or government or any agency or political
subdivision thereof.
"Transfer": Any direct or indirect transfer or sale of any Ownership
Interest in a Certificate, including the acquisition of a Certificate by the
Depositor.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
I-5
EXHIBIT 2
to EXHIBIT I
SECTION 5.02(C) OF THE AGREEMENT
(c) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall
promptly notify the Trustee of any change or impending change in its
status as a Permitted Transferee.
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the
Trustee shall not register the Transfer of any Residual Certificate
unless, in addition to the certificates required to be delivered to
the Trustee under subparagraph (b) above, the Trustee shall have been
furnished with an affidavit (a "Transfer Affidavit") of the initial
owner or the proposed transferee in the form attached hereto as
Exhibit I.
(iii) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall agree (A) to obtain a Transfer Affidavit
from any other Person to whom such Person attempts to Transfer its
Ownership Interest in a Residual Certificate, (B) to obtain a Transfer
Affidavit from any Person for whom such Person is acting as nominee,
trustee or agent in connection with any Transfer of a Residual
Certificate and (C) not to Transfer its Ownership Interest in a
Residual Certificate or to cause the Transfer of an Ownership Interest
in a Residual Certificate to any other Person if it has actual
knowledge that such Person is not a Permitted Transferee.
(iv) Any attempted or purported Transfer of any Ownership
Interest in a Residual Certificate in violation of the provisions of
this Section 5.02(c) shall be absolutely null and void and shall vest
no rights in the purported Transferee. If any purported transferee
shall become a Holder of a Residual Certificate in violation of the
provisions of this Section 5.02(c), then the last preceding Permitted
Transferee shall be restored to all rights as Holder thereof
retroactive to the date of registration of Transfer of such Residual
Certificate. The Trustee shall be under no liability to any Person for
any registration of Transfer of a Residual Certificate that is in fact
not permitted by Section 5.02(b) and this Section 5.02(c) or for
making any payments due on such Certificate to the Holder thereof or
taking any other action with respect to such Holder under the
provisions of this Agreement so long as the Transfer was registered
after receipt of the Transfer Affidavit, Transferor Certificate and
either the Rule 144A Letter or the Investment Letter. The Trustee
shall be entitled but not obligated to recover from any Holder of a
Residual Certificate that was in fact not a Permitted Transferee at
the time it became a Holder or, at such subsequent time as it became
other than a Permitted Transferee, all payments made on such Residual
Certificate at and after either such time. Any such payments so
recovered by the Trustee shall be paid and delivered by the Trustee to
the last preceding Permitted Transferee of such Certificate.
I-6
(v) The Depositor shall use its best efforts to make available,
upon receipt of written request from the Trustee, all information
necessary to compute any tax imposed under Section 860E(e) of the Code
as a result of a Transfer of an Ownership Interest in a Residual
Certificate to any Holder who is not a Permitted Transferee.
I-7
EXHIBIT J
FORM OF TRANSFEROR CERTIFICATE
__________, 200__
IndyMac MBS, Inc.
000 Xxxxx Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Deutsche Bank National Trust Company
0000 Xxxx Xx. Xxxxxxx Xxxxx
Xxxxx Xxx, XX 00000-0000
Attention: Trust Administration, Series 200 -
Re: IndyMac MBS, Inc. Mortgage Pass-Through Certificates,
Series 200_, Class
------------------------------------------------------
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we
certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being disposed
by us in a transaction that is exempt from the registration requirements of the
Act, (b) we have not offered or sold any Certificates to, or solicited offers to
buy any Certificates from, any person, or otherwise approached or negotiated
with any person with respect thereto, in a manner that would be deemed, or taken
any other action which would result in, a violation of Section 5 of the Act and
(c) to the extent we are disposing of a Class A-R Certificate, we have no
knowledge the Transferee is not a Permitted Transferee.
Very truly yours,
------------------------------
Print Name of Transferor
By: ___________________________
Authorized Officer
J-1
EXHIBIT K
FORM OF INVESTMENT LETTER (NON-RULE 144A)
__________, 200__
IndyMac MBS, Inc.
000 Xxxxx Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Deutsche Bank National Trust Company
0000 Xxxx Xx. Xxxxxxx Xxxxx
Xxxxx Xxx, XX 00000-0000
Attention: Trust Administration, Series 200 -
Re: IndyMac MBS, Inc. Mortgage Pass-Through Certificates, Series 200
-, Class
---------------------------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we are an
"accredited investor," as defined in Regulation D under the Act, and have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of investments in the Certificates, (c) we
have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) either (i) we are not an employee benefit plan
that is subject to the Employee Retirement Income Security Act of 1974, as
amended, or a plan or arrangement that is subject to Section 4975 of the
Internal Revenue Code of 1986, as amended, nor are we acting on behalf of any
such plan or arrangement or using the assets of any such plan or arrangement to
effect such acquisition or (ii) [in the case of a Certificate that has been the
subject of an ERISA-Qualifying Underwriting] we are an insurance company which
is purchasing such Certificates with funds contained in an "insurance company
general account" (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 ("PTCE 95-60")) and the purchase and holding
of such Certificates are covered under Sections I and III of PTCE 95-60, (e) we
are acquiring the Certificates for investment for our own account and not with a
view to any distribution of such Certificates (but without prejudice to our
right at all times to sell or otherwise dispose of the Certificates in
accordance with clause (g) below), (f) we have not offered or sold any
Certificates to, or solicited offers to buy any Certificates from, any person,
or otherwise approached or negotiated with any person with respect thereto, or
taken any other action which would result in a violation of Section 5 of the
Act, (g) we will not sell, transfer or otherwise dispose of any Certificates
unless (1) such sale, transfer or other disposition is made pursuant to an
effective registration statement under the Act or is exempt from such
registration requirements, and if requested, we will at our expense provide an
opinion of counsel satisfactory to the addressees of this Certificate that such
sale, transfer or other disposition may be made pursuant to an exemption from
the Act, (2) the purchaser or transferee of such Certificate has executed and
delivered to you a certificate to substantially the same effect as this
certificate, and (3) the purchaser or transferee has otherwise complied
K-1
with any conditions for transfer set forth in the Pooling and Servicing
Agreement and (h) if we are a corporation purchasing the Certificates in the
State of California, we have a net worth of at least $14,000,000 according to
our most recent audited financial statements.
Very truly yours,
------------------------------
Print Name of Transferee
By: ___________________________
Authorized Officer
K-2
EXHIBIT L
FORM OF RULE 144A LETTER
____________, 200__
IndyMac MBS, Inc.
000 Xxxxx Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Deutsche Bank National Trust Company
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, XX 00000-0000
Attention: Trust Administration, Series 200 -
Re: IndyMac MBS, Inc.
Mortgage Pass-Through Certificates, Series 200 -, Class
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we have
such knowledge and experience in financial and business matters that we are
capable of evaluating the merits and risks of investments in the Certificates,
(c) we have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) either (i) we are not an employee benefit plan
that is subject to the Employee Retirement Income Security Act of 1974, as
amended, or a plan or arrangement that is subject to Section 4975 of the
Internal Revenue Code of 1986, as amended, nor are we acting on behalf of any
such plan or arrangement or using the assets of any such plan or arrangement to
effect such acquisition, or (ii) [in the case of a Certificate that has been the
subject of an ERISA-Qualifying Underwriting] we are purchasing the Certificates
with funds contained in an "insurance company general account" (as defined in
Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and
our purchase and holding of the Certificates satisfy the requirements for
exemptive relief under Sections I and III of PTCE 95-60, (e) we have not, nor
has anyone acting on our behalf offered, transferred, pledged, sold or otherwise
disposed of the Certificates, any interest in the Certificates or any other
similar security to, or solicited any offer to buy or accept a transfer, pledge
or other disposition of the Certificates, any interest in the Certificates or
any other similar security from, or otherwise approached or negotiated with
respect to the Certificates, any interest in the Certificates or any other
similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or taken
any other action, that would constitute a distribution of the Certificates under
the Act or that would render the disposition of the Certificates a violation of
Section 5 of the Act or require registration pursuant thereto, nor will act, nor
has authorized or will authorize any person to act, in such manner with respect
to the Certificates, (f) we are a "qualified institutional buyer" as that term
is defined in Rule 144A under the Act ("Rule 144A") and have completed either of
the forms of certification to that effect attached hereto as Annex 1 or Annex 2,
(g) we are aware that the sale to us is being made in reliance on Rule 144A, (h)
we are acquiring the Certificates
L-1
for our own account or for resale pursuant to Rule 144A and further, understand
that such Certificates may be resold, pledged or transferred only (A) to a
person reasonably believed to be a qualified institutional buyer that purchases
for its own account or for the account of a qualified institutional buyer to
whom notice is given that the resale, pledge or transfer is being made in
reliance on Rule 144A, or (B) pursuant to another exemption from registration
under the Act and (i) if we are a corporation purchasing the Certificates in the
State of California, we have a net worth of at least $14,000,000 according to
our most recent audited financial statements.
Very truly yours,
------------------------
Print Name of Transferee
By:_______________________
Authorized Officer
L-2
ANNEX 1 TO EXHIBIT L
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[FOR TRANSFEREES OTHER THAN REGISTERED INVESTMENT COMPANIES]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because (i) the Buyer owned
and/or invested on a discretionary basis $ 1 in securities (except for the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule 144A and (ii)
the Buyer satisfies the criteria in the category marked below.
___ Corporation, etc. The Buyer is a corporation (other than
a bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or charitable
organization described in Section 501(c)(3) of the Internal Revenue
Code of 1986, as amended.
___ Bank. The Buyer (a) is a national bank or banking
institution organized under the laws of any State, territory or the
District of Columbia, the business of which is substantially confined
to banking and is supervised by the State or territorial banking
commission or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least $25,000,000
as demonstrated in its latest annual financial statements, a copy of
which is attached hereto.
___ Savings and Loan. The Buyer (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised and
examined by a State or Federal authority having supervision over any
such institutions or is a foreign savings and loan association or
equivalent institution and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial statements,
a copy of which is attached hereto.
___ Broker-dealer. The Buyer is a dealer registered pursuant
to Section 15 of the Securities Exchange ------------- Act of 1934.
___ Insurance Company. The Buyer is an insurance company
whose primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the
--------------------------
1 Buyer must own and/or invest on a discretionary basis at least $100,000,000
in securities unless Buyer is a dealer, and, in that case, Buyer must own
and/or invest on a discretionary basis at least $10,000,000 in securities.
L-3
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.
L-4
---------------------------------------
Print Name of Buyer
By:____________________________________
Name:
Title:
---------------------------------------
Date:
L-5
ANNEX 2 TO EXHIBIT L
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[FOR TRANSFEREES THAT ARE REGISTERED INVESTMENT COMPANIES]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because Buyer is part of a
Family of Investment Companies (as defined below), is such an officer of the
Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, as
amended and (ii) as marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year. For purposes of determining the amount of securities owned by the
Buyer or the Buyer's Family of Investment Companies, the cost of such securities
was used, except (i) where the Buyer or the Buyer's Family of Investment
Companies reports its securities holdings in its financial statements on the
basis of their market value, and (ii) no current information with respect to the
cost of those securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market.
___ The Buyer owned $_______ in securities (other than the
excluded securities referred to below) as of the end of the Buyer's
most recent fiscal year (such amount being calculated in accordance
with Rule 144A).
___ The Buyer is part of a Family of Investment Companies
which owned in the aggregate $________ in securities (other than the
excluded securities referred to below) as of the end of the Buyer's
most recent fiscal year (such amount being calculated in accordance
with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two
or more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) securities issued or guaranteed by
the U.S. or any instrumentality thereof, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase agreements,
(vi) securities owned but subject to a repurchase agreement and (vii) currency,
interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, the Buyer will only purchase for the Buyer's own account.
L-6
6. Until the date of purchase of the Certificates, the undersigned
will notify the parties listed in the Rule 144A Transferee Certificate to which
this certification relates of any changes in the information and conclusions
herein. Until such notice is given, the Buyer's purchase of the Certificates
will constitute a reaffirmation of this certification by the undersigned as of
the date of such purchase.
---------------------------------------
Print Name of Buyer
By:____________________________________
Name:
Title:
---------------------------------------
Date:
L-7
EXHIBIT M
REQUEST FOR RELEASE
(FOR TRUSTEE)
INDYMAC MBS, INC.
MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 200_-_
Loan Information
----------------
Name of Mortgagor:
Servicer
Loan No.: ___________________
Trustee
-------
Name: ___________________
Address: ___________________
-------------------
Trustee
Mortgage File No.:
The undersigned Master Servicer hereby acknowledges that it has received
from Deutsche Bank National Trust Company, as Trustee for the Holders of
Mortgage Pass-Through Certificates, of the above-referenced Series, the
documents referred to below (the "Documents"). All capitalized terms not
otherwise defined in this Request for Release shall have the meanings given them
in the Pooling and Servicing Agreement (the "Pooling and Servicing Agreement")
relating to the above-referenced Series among the Trustee, IndyMac Bank, F.S.B.,
as Transferor and Master Servicer and IndyMac MBS, Inc., as Depositor.
( ) Mortgage Note dated _____, 20__, in the original principal sum of $____,
made by ______________, payable to, or endorsed to the order of, the
Trustee.
( ) Mortgage recorded on _______ as instrument no.______ in the County
Recorder's Office of the County of _____________, State of ___________in
book/reel/docket_______ of official records at page/image________.
( ) Deed of Trust recorded on ____________ as instrument no. ___________ in the
County Recorder's Office of the County of __________, State of ___________
in book/reel/docket_______of official records at page/image___________.
( ) Assignment of Mortgage or Deed of Trust to the Trustee, recorded on
____________ as instrument no. _____ in the County Recorder's Office of the
County of ______, State of __________ in book/reel/docket _____ of
official records at page/image __________.
M-1
( ) Other documents, including any amendments, assignments or other
assumptions of the Mortgage Note or Mortgage.
The undersigned 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: _________________
Name:
Title:
Date: , 20
M-2
EXHIBIT N
REQUEST FOR RELEASE OF DOCUMENTS
To: Deutsche Bank National Trust Company
Attn: Mortgage Custody Services
Re: The Pooling and Servicing Agreement dated November 1, 2004 among
IndyMac Bank, F.S.B. as Transferor and Master Servicer, IndyMac MBS,
Inc. and Deutsche Bank National Trust Company, as Trustee
--------------------------------------------------------------------
Ladies and Gentlemen:
In connection with the administration of the Mortgage Loans held by you as
Trustee for IndyMac MBS, Inc., we request the release of the Mortgage Loan File
for the Mortgage Loan(s) described below, for the reason indicated.
FT Account #: Pool #:
Mortgagor's Name, Address and Zip Code:
--------------------------------------
Mortgage Loan Number:
--------------------
Reason for Requesting Documents (check one)
_______1. Mortgage Loan paid in full (IndyMac hereby certifies that all amounts
have been received.)
_______2. Mortgage Loan Liquidated (IndyMac hereby certifies that all proceeds
of foreclosure, insurance, or other liquidation have been finally
received.)
_______3. Mortgage Loan in Foreclosure.
_______4. Other (explain): ____________________________________
If item 1 or 2 above is checked, and if all or part of the Mortgage File
was previously released to us, please release to us our previous receipt on file
with you, as well as an additional documents in your possession relating to the
above-specified Mortgage Loan. If item 3 or 4 is checked, upon return of all of
the above documents to you as Trustee, please acknowledge your receipt by
signing in the space indicated below, and returning this form.
N-1
INDYMAC BANK, F.S.B.
000 Xxxxx Xxxx Xxx.
Xxxxxxxx, XX 00000
By:________________________
Name:______________________
Title:____________________
Date:______________________
TRUSTEE CONSENT TO RELEASE AND
ACKNOWLEDGEMENT OF RECEIPT
By:________________________
Name:______________________
Title:____________________
Date:______________________
N-2
EXHIBIT O
---------
FORM OF TRUSTEE CERTIFICATION
-----------------------------
To: IndyMac MBS, Inc.
IndyMac Bank, F.S.B.
Re: The Pooling and Servicing Agreement dated November 1, 2004 among
IndyMac IndyMac Bank, F.S.B. as Transferor and Master Servicer,
IndyMac MBS, Inc. and Deutsche Bank National Trust Company, as Trustee
---------------------------------------------------------------------
Ladies and Gentlemen:
In connection with the delivery of the Required Certifications on behalf of
the Trust Fund, we certify, based on the information provided by the Master
Servicer to the Trustee, the information contained in the Monthly Statements,
taken as a whole, does not contain an untrue statement of a material fact or
omit to state a material fact necessary to make the statements made, in the
light of the circumstances under which they were made, not misleading as of the
last day of the period covered by any Required Certification.
DEUTSCHE BANK NATIONAL TRUST COMPANY
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Date:
---------------------------------------
O-1
